IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1013 of 2009 ---- 1. Kapildeo Narayan Singh, son of Ramkrit Singh 2. Girija Devi, wife of Kapildeo Narayan Singh 3. Santosh Kumar 4. Manoj Kumar Both sons of Kapildeo Narayan Singh All residents of Village: Sikandarpur Dekpura, P.O. Mora Talab, P.S. Rahui, District-Nalanda. --Judgment debtors 1st Set-petitioners. Versus 1. Mithilesh Kumar Singh, son of Ram Rachha Singh alias Lakshan Singh, resident of Village: Sikandarpur Dekpura, P.O. Mora Talab, P.S. Rahui, District-Nalanda. --Decree Holder-Opposite Party 1st Set. 2. Rajesh Kumar Singh, son of Ram Chandra Pd. Singh 3. Kanaklata Devi, wife of Late Ram Chandra Pd. Singh 4. Asha Kumari 5. Shobha Kumari 6. Saroj Kumari @ Nunuwati Kumari All three are daughters of Late Ram Chandra Prasad Singh Sl. Nos. 2 to 6 are residents of Village: Maghara, P.S. Deepnagar, P.O. Moghara, District- Nalanda. --Judgment debtors 2nd Set-Opposite Parties 2nd Set. ---- For the petitioners : Mr. Amar Nath Singh with Mr. Mukesh Kumar Jha, Advocates. For opposite party no.1 : Mr. Raghib Ahsan, Senior Advocate with Mr.Sudhir Kumar, Advocate. ---- 04. 09.12.2009 Heard learned counsel for the petitioners as well as learned counsel for opposite party no.1. 2. This civil revision has been filed by defendants-judgment debtors 1st Set-petitioners challenging order dated 12.05.2009 by which the learned Subordinate Judge VII, Nalanda rejected their application under Section 47 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) for dismissing Execution Case No.05 of 2006. - 2 - 3. This case has a chequered history and arises out of Title Suit No.79 of 1983 which was filed by plaintiff-decree holder-opposite party no.1 for specific performance of contract as per agreement dated 20.11.1982 for sale of the suit land. The said suit was decreed on contest vide its judgment and decree dated 19.05.1994 directing the defendants to execute the sale deed in favour of the plaintiff. 4. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No.15 of 1994 which was dismissed on 20.06.1996 by the lower appellate court. Against the aforesaid judgment and decree of both the learned courts below, the defendants filed Second Appeal No.208 of 1996 which was also dismissed by a Bench of this court on 22.03.2001. The said judgment was not challenged by any one and hence the judgment and decree for specific performance of contract attained finality. 5. It transpires that immediately after the dismissal of the second appeal the plaintiff-decree holder filed a challan on 14.06.2001 along with a petition for leave to deposit the consideration amount. The said application was allowed by the learned trial court on 19.06.2001 and leave was granted to the plaintiff-decree holder to deposit the consideration amount as per the decree. Thereafter the amount was deposited by the plaintiff on 21.06.2001 which was accepted by the learned trial court. 6. It transpires that against the aforesaid acceptance the defendants- judgment debtors filed an application dated 30.06.2001 but the said application was rejected by the learned trial court vide its order - 3 - dated 21.07.2005. The said order of the trial court was challenged by the defendants-judgment debtors in Civil Revision No.2112 of 2005 which was dismissed by a Bench of this Court vide its order dated 27.06.2006 with certain observations. 7. In view of the observations of this court, the plaintiff- decree holder filed Execution Case No.05 of 2006 for execution of the decree for specific performance of contract. In the said execution case, the defendants-judgment debtors filed an application under Section 47 of the Code for dismissing the execution case with cost. A rejoinder was filed by the plaintiff-decree holder against the said objection. The said objection of the defendants-judgment debtors was rejected by the learned court below vide its order dated 12.05.2009 against which the instant civil revision has been filed. 8. Learned counsel for the defendants-judgment debtors- petitioners vehemently challenges the aforesaid order of the learned court below on the ground that a Bench of this court while dismissing Civil Revision No.2112 of 2005 vide its order dated 27.06.2006 observed that the trial court could not have assumed the jurisdiction of an executing court and hence the decree of the trial court has to be executed in accordance with law by initiating an execution proceeding in which it would be open for the petitioners to raise such objection as may be available to them in law. Hence, he submits that the learned court below without considering the merits of their objection under Section 47 of the Code wrongly rejected the same only on the ground that their similar application was rejected earlier up till the High Court. He submits that - 4 - when the High Court itself has given an opportunity to the judgment debtors to raise all such objections in the executing court, there was no occasion for the executing court to debar them from raising their objection merely on the basis of earlier order of this court. Learned counsel for opposite party no.1 also relying upon the earlier order of this court contests the claim of the petitioners. 9. Considering the arguments made by learned counsel for the parties and the materials on record it is quite apparent that this court vide its order dated 27.06.2006 had decided Civil Revision No.2115 of 2005 in two parts. So far the first part is concerned, it has held that although the suit for specific performance of contract was decreed on 19.05.1994 and the application for deposit of consideration money was filed by the decree holder on 14.06.2001, but the said delay was only because the defendants had themselves challenged the judgment and decree in appeals. It was also held by this court that in terms of Section 148 of the Code, the court below had powers to enlarge the time which it has enlarged by accepting the amount deposited by the plaintiff-decree holder on 21.06.2001. It was also held that the said action of the court below cannot be said to be without jurisdiction calling for any interference by this court. 10. So far the second part of the said order of this court is concerned, it was held that for the purposes of execution of the sale deed, the trial court cannot assume the jurisdiction of the executing court and hence the plaintiff-decree holder has to initiate an execution proceeding for execution of the decree and in that proceeding it would be open for - 5 - the judgment debtors to raise such objection as may be available to them in law. In the said circumstances, when this court vide first part of its order dated 27.06.2006 had held that the acceptance by the trial court of the amount deposited by the decree holder was legal and was not without jurisdiction as it was filed immediately after the decision in the second appeal which was filed by the judgment debtors themselves and considering the same the time was enlarged by the trial court regarding which it had the powers under Section 148 of the Code, the said point was clearly not available in law to the judgment debtors to be raised at any later stage. Hence, it is quite apparent that the observation made in the second part of the said order did not include the said point as the court had given opportunity to the judgment debtors to raise only such objections which were available to them in law. 11. Furthermore, after perusal of the application under Section 47 of the Code dated 18.01.2007 (Annexure-2), it is quite apparent that the same objection with regard to validity of the deposit of the consideration money and acceptance thereof by the trial court has been raised and no other objection has been raised therein. The said matter being directly in the teeth of the earlier decision of this court, the learned court below was quite justified in rejecting the said application filed by the judgment debtors against the execution case. 12. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Hence, the impugned order is affirmed and this civil revision is disposed of. - 6 - 13. However, it would be open to the judgment debtors to raise any other objection, if available to them in law and which is not covered by the earlier order of this court dated 27.06.2006 passed in Civil Revision No.2112 of 2005, within two months from today which would be decided in accordance with law by the learned court below within two months thereafter. Sunil (S. N. Hussain, J.)