CIVIL REVISION No. 821 OF 2009 *** Awadhesh Prasad Singh @ Abdhesh Prasad Singh son of Late Rameshwar Prasad Singh, resident of village, P.O. and P.S. Sarairanjan, Sub-division and District Samastipur…………………………………….Applicant-Petitioner Versus 1. Shiv Shankar Prasad son of Late Kailash Bihari Prasad, resident of village and P.O. Sari, P.S. Warisnagar, Sub-division and District Samastipur……………………………Opposite Party-Opposite Party 1st set 2. Surendra Narayan Singh son of Late Bahadur Singh, resident of village and P.O. Sari, P.S. Warisnagar, Sub-division and District Samastipur……………………………Opposite Party-Opposite Party 2nd set. For the petitioner : M/s V. Nath, Ashok Kumar, Waliur Rahman and Neeraj Kumar, Advocates. For the opposite parties : M/s S.S. Dwivedi, Sr. Advocate and R.S. Dwivedi, Advocate. P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This civil revision has been filed by the applicant-petitioner challenging order dated 06.05.2009 by which the learned Civil Judge, Junior Division-1st, Samastipur rejected the petition filed by the applicant-petitioner under Order XXI Rule 97 and 99 read with section 151 of the Code of Civil Procedure, bearing Misc. Case No.01 of 2009. 2. The matter arises out of Title Suit No.03 of 2005, which was filed by opposite party no.2 against opposite party no.1 for declaration that interference of opposite party no.1 with the possession of opposite party no.2 over the suit land was illegal and without jurisdiction claiming relief of permanent injunction as well as other ancillary reliefs. 3. In the aforesaid suit opposite party no.1, who was defendant filed a counter claim that he had purchased four dhoors of R.S. Plot No.284 by a registered deed dated 01.12.1993 and since then was in exclusive possession of the said purchased land as absolute owner thereof which was sought to be decreed. 2 4. The aforesaid suit was decided by judgment and decree dated 15.09.2007 by which the learned Civil Judge-I, Junior Division, Smastipur dismissed the suit of the plaintiff (opposite party no.2) but allowed the counter claim of the defendant (opposite party no.1) directing plaintiff (opposite party no.2) to deliver possession of the land claimed by the defendant (opposite party no.1). 5. For execution of the aforesaid judgment and decree defendant- opposite party no.1 filed Execution Case No.09 of 2007 claiming delivery of possession of four dhoors of plot no.284 from plaintiff-opposite party no.2 and much thereafter on 06.03.2009 the petitioner, who was not a party either to the suit or to the execution case, filed an application in the said execution case under the provision of Order XXI Rules 97 and 99 read with section 151 of the Code of Civil Procedure claiming that he had purchased five dhoors of the southern portion of plot no.284 by registered deed dated 25.02.2005 with which the plaintiff or the defendant had no manner of concern. The decree-holder, namely defendant-opposite party no.1 contested the petition stating that the aforesaid sale deed was a forged and fabricated document as the southern portion of plot no.284 had been purchased by him much earlier by registered deed dated 01.12.1993 which had been affirmed by the trial court. 6. The learned court below by its impugned order dated 06.05.2009 found that the application filed by the petitioner had no force either in law or on fact and it was filed only to frustrate the decree-holder in getting the fruit of his decree and to delay the execution of the said decree and hence the said application was dismissed by a detailed and reasoned order. 7. The said order of the learned court below has been challenged by the intervener petitioner claiming that admittedly plot no.282, 283 and 284 measured 09 dhoors each, out of which the sale deed of defendant (opposite party no.1) is only with respect to 18 dhoors and hence from the boundary given in the sale deed it is quite apparent that he had purchased 18 dhoors from the north and hence the southern 09 dhoors of land were not the subject matter of the said sale deed and out of that petitioner had purchased 05 dhoors from the extreme southern end of plot 3 no.284 and accordingly defendant (opposite party no.1) could have no manner of claim over the said portion of plot no.284, which would be apparent from the sale deeds of the petitioner and opposite party no.1 as well as the admitted sketch map of the three plots. 8. On the other hand, the claim of defendant (opposite party no.1) was that vide sale deed dated 01.12.1993 he had purchased the entire plot no.284 as well as portions of plot no.282 and 283 totaling 18 dhoors. It is also stated that the sale deed dated 01.12.1993 was executed by Bibhuti Bhushan Singh and since the other co-sharer, namely, Prabhat Kumar Singh had gone out, he subsequently executed Ijabnama (deed of acceptance) regarding acceptance of sale of the land to defendant (opposite party no.1) and receipt of his share in the consideration money. It is also stated that on the basis of the aforesaid registered deeds name of defendant (opposite party no.1) was mutated and Jamabandi No.89 was created in his name in the Government Record and since then he has been paying the rent on getting receipts from the government. 9. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that admittedly plot no.282, 283 and 284 measured 09 dhoors each and hence their total area was 27 dhoors out of which defendant-opposite party no.1 had purchased only 18 dhoors by registered sale deed dated 01.12.1993. Moreover, from a bare perusal of said sale deed dated 01.12.1993 (annexure-4 to petitioner’s supplementary affidavit dated 22.05.2009) as well as a rough sketch map of the said three plots (annexure-3 to the said supplementary affidavit) it is quite apparent that the boundary given in the said sale deed is of the entire 27 dhoors of land of the three plots and no boundary of 18 dhoors has been given therein. 10. However, from the counter claim of defendant (opposite party no.1) it is quite apparent that he had raised his claim over the southern 18 dhoors of the said suit plots, which as per the intervener-petitioner’s sketch map itself includes the entire 09 dhoors of plot no.284 and parts of plot no.282 and 283. This claim of the plaintiff had been affirmed by the learned trial court and the court had specifically 4 found the said plot no.284 to be entirely and exclusively purchased land of defendant (opposite party no.1). Since the said matter was quite apparent from the judgment and decree of the learned trial court itself, the executing court had no option but to execute the said decree as it had no jurisdiction to go beyond the decree which can be done only by an appellate court where the said decree is challenged. 11. It transpires that against the aforesaid judgment and decree of the learned trial court dated 15.09.2007, plaintiff (opposite party no.2) filed Title Appeal No.73 of 2007 and in that appeal he filed an application on 06.10.2007 under Order XLI Rule 5 of the Code of Civil Procedure for stay of the operation of the trial court decree which was allowed by the learned Additional Judge, Samastipur vide his order dated 11.12.2007. Against the aforesaid order of stay defendant-opposite party no.1 filed C.R. No.145 of 2008 and this court vide its order dated 22.04.2008 allowed the civil revision and set aside the order of stay passed by the learned court below giving liberty to plaintiff-opposite party no.2 to file a fresh interlocutory application for stay of further proceeding of execution case. In view of the aforesaid directions of this court, plaintiff-opposite party no.2 filed an application on 13.05.2008 before the learned appellate court for stay of further proceeding of Execution Case No.09 of 2007 till the disposal of his appeal. The said application was also dismissed by the lower appellate court on 29.08.2008. 12. However, in the meantime the executing court in absence of any order of stay from the appellate court, directed issuance of a writ of delivery of possession in favour of the decree-holder vide order dated 16.08.2008 fixing next date as 21.08.2008. Against the aforesaid order dated 16.08.2008 plaintiff-opposite party no.2 filed C.R. No.14051 of 2008 and in that case this court vide order dated 29.08.2008 directed the lower appellate court to decide the application for stay of execution case within four weeks and till then steps for delivery of possession were to be kept in abeyance by the executing court. As per the aforesaid direction of this court, the lower appellate court considered the stay application of plaintiff (opposite party no.2) and dismissed it vide order dated 29.08.2008. 5 13. The said order dated 29.08.2008 passed by the lower appellate court was challenged by plaintiff-opposite party no.2 in C.R. No.1526 of 2008 and after hearing the parties this court vide its order dated 11.09.2008 disposed of C.R. No.1526 of 2008 directing the lower appellate court to dispose of the title appeal on merit by 29.09.2008 as both the parties conveyed their willingness to seriously contest the title appeal for getting it disposed of at the earliest and were ready to commence hearing from 15.09.2008 itself. In the aforesaid circumstances, it was directed that the proceeding in the Execution Case No.09 of 2007 shall remain stayed till the disposal of the title appeal. 14. The said order of this court dated 11.09.2008 was not complied and hence defendant-petitioner no.2 filed M.J.C. No.3516 of 2008 for modification of order dated 11.09.2008 passed by this court in C.R. No.1526 of 2008. A Bench of this court considered the matter in detail and found that the plaintiff-judgment debtor-appellant did not allow the appellate court to take up the appeal for its disposal till 29.09.2008 and got the title appeal transferred to another court on the orders of the learned District Judge, Samastipur and records were received in the transferee court only on 16.10.2008 whereafter the title appeal was adjourned from one day to another and was still pending, whereafter the said court became vacant and thus the title appeal still remained pending. This court specifically found that the plaintiff-appellant-judgment debtor not only misused the orders of this court dated 01.09.2008 and 11.09.2008 passed in C.R. No.1405 of 2008 and C.R. No.1526 of 2008 but also some how duped the learned District Judge, Samastipur in seeking and getting the title appeal transferred much later and in not allowing the appeal to be taken up till the date fixed by this court. 15. A Bench of this court vide order dated 04.02.2009 allowed M.J.C. No.3516 of 2008 after considering the entire matter in detail and realizing the illegal attitude of the plaintiff-judgment debtor modified its order dated 11.09.2008 passed in C.R. No.1526 of 2008 and directed the Executing Court to complete the proceeding of the Execution Case No.09 of 2007 within one month from the date of receipt/production of a copy of that order irrespective of the result of the title appeal 6 because even if the plaintiff-appellant-judgment debtor succeeds in the title appeal he would have the liberty for restitution of possession under the provision of law. By the said order this court also directed the learned District Judge, Samastipur to call for the records of title appeal from the concerned court and take up himself hearing of the title appeal on day to day basis concluding it within a period of three months from the date of receipt/production of a copy of that order and also to deliver the judgment in the title appeal with a month of completion of its hearing and submit a report of compliance of this order to this court soon thereafter. 16. It transpires that only after the said order dated 04.02.2009 was passed by this court in M.J.C. No.3516 of 2008, Misc.Case No.01 of 2009 was filed in the execution case on 06.03.2009 (annexure-2) by the petitioner, who was never a party either to the suit or to the appeal or even to the execution case and in the facts and circumstances of this case as mentioned above the learned court below was quite justified in holding in his impugned order that the said petition was absolutely frivolous and was filed by the petitioner only at the instance of the plaintiff- judgment debtor-opposite party no.2 as it transpired that he was a very shrewd and cunning litigant not only duping the learned court below but also misusing the orders of this court as had been earlier found by a Bench of this Court in order dated 04.02.2009 passed in M.J.C. Case No.3516 of 2008. 17. Furthermore, in the aforesaid facts and circumstances no case under the provision of Order XXI Rule 97 or Rule 99 or section 151 of the Code of Civil Procedure is made out by the petitioner as he cannot force the executing court to go behind the decree sought to be executed, specially when the said decree was passed after full consideration of all the materials on record on the basis of which it was held that defendant-opposite party no.1 was the exclusive owner of the suit property, namely the entire plot no.284. Accordingly, this court does not find any merit in the claim of the petitioner nor does it find any illegality or jurisdictional error in the impugned order of the learned court below and thus this civil revision is dismissed with a direction to the learned executing court to comply order dated 04.02.2009 passed in M.J.C. No.3516 of 2008 expeditiously without any further delay as already 7 much delay has been caused resulting in violation of the said order due to the illegal and misleading activities of the plaintiff-decree holder and the petitioner. Patna High Court, (S.N. Hussain, J.) Dated, 24th July, 2009 N.A.F.R./harish