IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1451 of 2008 Rameshwar Sah, son of Late Jatta Sah, resident of Mohalla-Bagtajkhan @ Pokharo, P.S.-Hajipur, P.O.-Hajipur, District-Vaishali. ……………… Objector/Appellant/Petitioner Versus 1. Nand Kumar Singh, son of Late Bishwanath Singh. 2. Rajesh Kumar Singh, son of Sri Nand Kumar Singh. Both resident of Village-Sonepur, Kesho Rampur Madho, P.O. and P.S.-Sonepur, District-Saran. 3. Sushila Devi, wife of Shyam Nandan Singh, resident of Village-Mahua Singh Rai, P.S. and P.O.-Mahua, District-Vaishali. 4. Birendra Kumar Singh, son of Gorakh Singh. 5. Ajay Singh, son of Late Ram Sovit Singh, Both resident of Mohalla-Sanchipatti, P.O. and P.S.-Hajipur, District-Vaishali. 6. Ram Baboo, son of Dasai Ringh, resident of Mohalla-Bagmali, P.O. and P.S.- Hajipur, District-Vaishali. 7. Satish Kumar Singh, son of Yogendra Pd. Singh, resident of Village-Senduri, P.O.- Senduri, P.S.-Hajipur, District-Vaishali. 8. Smt. Prem Sheela Singh, wife of Jaikishun Singh, Mohalla-Pokhana, P.O.-Hajipur, District-Vaishali. 9. Sukhdeo Singh, son of Late Govind Singh, resident of Mohalla-Gudri Bazar Pokhana P.O. and P.S.-Hajipur, District-Vaishali. 10. Premanand Singh, son of Dasarath Singh, resident of Mohalla-Anderkila S.D.O. Road P.O.-Hajipur, District-Vaishali. 11. Smt. Asha Singh, wife of Sri Binod Kumar Singh, resident of Mohalla-Jauhari Bazar Old Gandak Pool, Road, Hajipur, P.O.-Hajipur, District-Vaishali. 12. Smt. Manju Devi, wife of Sri Dinesh Sharma. 13. Nishant Sharma 14. Vikash Sharma Both son of Dinesh Sharma, all resident of Mohalla-Kela Bazar, P.O.-Hajipur, District-Vaishali. 15. Anil Kumar, son of Sri Tersh Rai. 16. Smt. Manju Kumari, wife of Dr. Gajendra Narain. Both resident of Mohalla-Bagtajkhan Pokhara, P.O.-Hajipur, District-Vaishali. 17. Ram Pravesh Singh 18. Ram Nath Singh Both son of Jagdeep Singh, resident of Mohalla-Sanchpatti, P.S. and P.O.-Hajipur, District-Vaishali. ………………. Decree holder/Respondents/Opposite Parties. ----------- 3 9/9/2009 Heard counsel for the petitioner. The petitioner in this Civil Revision Application has assailed the order dated 19.5.2007 passed by the Sub.Judge-IX, Hajipur in Execution Case No. 5/73 as also the appellate order 2 dated 30.6.2008 passed by the District Judge, Vaishali in Misc. Appeal No. 9/2007 affirming the aforementioned order dated 19.5.2007. Counsel for the petitioner would submit that even though the petitioner was not a party to the suit or to the execution proceeding, he could still maintain an appeal against an order disposing of an objection under Order 21, rule 97 of the Code of Civil Procedure on a simple analogy that he (petitioner) was a person who had his residential house over the land in question i.e. plot no. 554 + 555 regarding which execution had been levied and an order for delivery of possession has been issued. In the opinion of this Court, the present case is simply a mockery of law inasmuch as a suit of the year 1955 still in effect awaits for execution of decree and the execution case levied since 1973 has been kept pending for the last 36 years only due to some ingenious efforts of the petitioner. From the order of the appellate Court it would appear that one Babu Harakh Narain Singh, (Sasurali ancestor of the original decree holder Smt. Bahuriya Lalita Devi) had filed Title Suit No. 12/1922 against ancestors of petitioner which was dismissed by the trial court and thereafter Harakh Narain Singh had filed a First Appeal No. 246/1922 against the aforementioned judgment and decree passed by the trial court in Title Suit No. 12/1922 and the said first appeal was allowed by judgment dated 24.4.1923 by the lower appellate court in favour of the appellant 3 Harakh Narain Singh wherein it was declared that the defendants, ancestors of the petitioner had got no existing sikmi rights over the disputed land. It has to be noted here that as against aforesaid judgment and decree passed in First Appeal No. 246/1922 one Bidyanath Sah and others (ancestors of present objector-appellant Rameshwar Sah) had filed Second Appeal No. 683 of 1923 before this Court which was dismissed and in this manner claim of ancestors of the petitioner over the land in question had finally come to an end. It appears that after the right of the Harakh Narain Singh over the lands in question including plots no. 554 and 555 was established and declared in the aforesaid manner, the heirs of Harakh Narain Singh had filed a partition suit no. 14/55/23/58 which on being decreed in favour of the opposite parties, led to institution of Execution Case no. 5/73, wherein Rameshwar Sah, the present petitioner also filed Misc. Case No. 6/1980 under the provisions of order 21, rule 98 of the Code of Civil Procedure for staying the proposed delivery of possession which however was dismissed by the executing court by an order dated 26.2.1980 and such order was allowed to become final. Thereafter, the petitioner had filed another Misc. Case No. 10/1986 under the provisions of order 21, rule 98 of the Code of Civil Procedure for adjudicating his right, title, interest and possession as also to stay delivery of possession which was also 4 dismissed and even that the order passed in Misc. Case No. 10/1986 had become final. Thereafter the petitioner and his brothers claiming their sikmi right have filed a Title Suit No. 118/1986 and in that suit prayer for injunction to stay the proposed delivery of possession in execution case no. 5/1973 was rejected by the Court below on 10.9.1987. This Court is not aware as to the fate of Title Suit No. 118 /1986, but then that such suit at the instance of the petitioner in view of dismissal of Second Appeal No. 683/1923 prima-facie appears to be barred by the principles of res-judicata inasmuch as this very issue of sikmi right of the ancestors of the petitioner was adjudicated and decided against them and in favour of ancestors of opposite parties of this case in the aforesaid Title Suit no. 12 of 1922 and become final in view of the judgment of this court in Second Appeal No. 683 of 1923. It is in this background that one has to appreciate the attempt of the petitioner who had filed another application on 17.3.2007 in Execution Case No. 5/1973, though he was not even a party to such execution proceeding wherein a prayer was made in terms of order 21, rule 97 of the Code of Civil Procedure. The Court below by the impugned order dated 19.5.2007 relying on the judgment of this Court in the case of ‘Sheo Sahu & Ors. Vs. Smt. Lila Devi & Ors’ reported in 1999 (2) PLJR 416 had held that earlier judgment of the Second Appeal No. 681/1923 was binding on the petitioner as the aforementioned second appeal was decided 5 in between the ancestors of decree holders and ancestors of the petitioner. It was on that basis that the court below had also recorded a finding that when Sikmidari right of the petitioner was never established by his ancestors, he had no right to cause any impediment in the delivery of possession in the pending Execution Case No. 5/1973. Such findings of fact has also been affirmed by the appellate court in the impugned order dated 30.6.2008 while rejecting appeal of the petitioner. In the backdrop of the facts, noted above, it would appear that the application filed by the petitioner both before the executing Court, even though not being a party, and the resultant appeal was clearly an abuse of the process of law. The petitioner is bound by the earlier inter party decree passed by the lower appellate court which got merged in the judgment passed by this Court in Second Appeal No. 683/1923. There is no dispute that plot nos. 554 and 555 was part and parcel of the final decree in a Partition Suit No. 14/1955 and in fact Execution Case No. 5/1973 was also levied for delivery of possession of the aforementioned plot no. 554 area 17 decimals and plot no. 555 area 11 decimals. Once this fact becomes clear there would hardly be an issue as to whether the petitioner was a party in Partition Suit No. 14/1955 inasmuch as the plea of Sikmidar in respect of plot no. 554 and 555 had already been decided against the ancestors of the petitioners inasmuch as the same would be governed by the principle of res-judicata. The 6 petitioner has unnecessarily been prolonging and streching the Execution case at least from 1980 when his first objector came to be dismissed by the Executing Court on 26.2.1980 . This Court is therefore satisfied that the courts below have committed no jurisdictional error in passing the impugned orders while dismissing the application filed by the petitioner purportedly under order 21, rule 97 of the code of Civil Procedure and the appeal filed against such order. That being so, this Civil Revision Application being devoid any merits is hereby dismissed with a direction to the Executing Court to ensure that the execution proceedings must be taken up on day to day basis so that the execution case no. 5 of 1973 is finally disposed of within a period of three months from the date of receipt/production of a copy of this order. Abhay Kumar (Mihir Kumar Jha, J.)