IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1252 of 2008 ---- Sugaitri Devi wife of Sri Dayanandan Prasad Yadav, Resident of Mohalla- Chhoti Kelawari, P.S. Kotwali, District- Munger. --O.P.1st party-Respondent 1st party- Petitioner. Versus 1. Prabhu Dayal Sagar@Prabhu Dayal Safar son of Ramdhani Yadav, resident of Mohalla-Lal Darwaza, P.O. Munger, P.S. Kotwali, District Munger. -Petitioner-Appellant- Opposite Party 1st Party. 2. Sukumar Roy son of Late Khirod Chandra Roy, resident of Mohalla Chhoti Kelawari, P.O. Munger, P.S. Kotwali, District-Munger. --Opposite Party-Judgement debtor 2nd party- Opposite Party 2nd Party. 3. Smt. Geeta Roy wife of Late Samat Kumar Roy, resident of School Para, P.O. Dutta Pakur, District-24 Pargana North West Bengal. 4. Swapan Kumar Roy son of Late Sanat Kumar Roy, Resident of School Para, P.O. Dutta Pakur, District 24 Pargana, North West Bengal. 5. Babulal Roy @ Dev Kumar Roy 6. Hasu Roy @ Gautam Roy. 7. Buro Roy @ Sunil Kumar Roy. 8. Dipu Roy @ Deepak Kumar Roy. 9. Phuto Roy @ Sujit Kumar Roy All sons of Late Samir Kumar Roy, all of residents of Village E.W.S. 4295 Awas Bikash Colony Section-B Pankaj Road Kalyanpur, Kanpur. 10. Smt. Juthika Roy wife of Bidhut Baran Roy, C/O Bholanath Chatterjee, resident of Tola Roadwali, P.O. Wali, District- Howrah. 11. Sri Sanjay Kumar Roy, son of Late Khirod Chandra Roy, Resident of Quarter No.127/B Bazar Para Bandel, District Hoogli. 12. Samar Kumar Roy, son of Late Khirod Chandra Roy, Resident of Quarter No.127/B Bazar Para Bandel, District- Hoogli. --Opposite parties-Defendant-Judgment Debtor third party-Respondent 3rd Set- Opposite Parties. 13. Dayanandan Prasad Yadav, son of Late Mahabir Prasad Yadav, resident of Mohalla-Chhoti Kelawari, P.S. Kotwali, P.O. Munger, District-Munger. -Opposite party-judgment debtor 4th party-Respondent judgment debtor 4th Set- Opposite party. ----- - 2 - For the petitioner : Mr. Surendra Kumar Singh, Senior Advocate. Mr.Praveen Prakash, Advocate. For opposite party no.1 : Mr. Devendra Kumar Sinha, Senior Advocate. Mr. Anil Kumar Singh, Advocate Mr. Abhinay Raj, Advocate. ---- 08. 07.07.2009 Heard learned counsel for the parties. 2. This civil revision has been filed by opposite party no.1- respondent no.1-petitioner challenging order dated 19.06.2008 by which the learned Additional District-cum- Fast Track Court-V, Munger allowed M.A.No.36 of 1998 and set aside order dated 22.08.1998 passed in Miscellaneous Case No.02 of 1998 and directed the trial court to pass a fresh order in accordance with law in view of the observations made in the appellate order. 3. The matter arises out of Title Suit No.09 of 1995 which was filed by one Sukumar Roy (opposite party no.2) for declaration of his title over Schedule IV land on the basis of deed of gift by Most Bibhawati Roy, widow of Suresh Chandra Roy, and also for partition of his 1/6th share in Schedule III land as one of six sons of Khirod Chandra Roy who was the brother of Suresh Chandra Roy and had died. The family was governed by the Dayabhag school of Hindu Law. 4. The said suit was decreed ex parte and preliminary decree was prepared on 06.06.1996, whereafter final decree was also prepared on 21.08.1997 allotting specific Takhtas to all the co- sharers in Schedule III properties and giving specific share to - 3 - plaintiff Shivkumar Roy whose claim regarding Schedule IV land was also decreed. Neither any appeal was filed by any one against the said decree, nor any miscellaneous case under the provision of Order IX of the Code of Civil Procedure was preferred by any one and the said judgment and preliminary and final decree passed in the said suit attained finality. 5. The petitioner further claimed that the aforesaid plaintiff Shiv kumar Roy for himself and also for other co-sharers, to whom he held power of attorney as well as other co-sharer, transferred the decree to the petitioner by registered documents dated 11.08.1997 and 10.12.1997 and in that view of the matter, the petitioner filed Execution Case No.01 of 1998 for execution of the final decree. It is also clear from Annexures 2 and 3 that the aforesaid plaintiff Shiv kumar Roy and another co-sharer filed petitions dated 19.01.1998 in the said execution case supporting the said claim of the petitioner. The Execution case proceeded and finally Nazir went to effect delivery of possession in favour of the petitioner. He found resistance by opposite party no.1 Prabhu Dayal Sagar, who was not a party to the suit or execution case, and hence, he returned without effecting delivery of possession. 6. Thereafter opposite party no.1 Prabhu Dayal Sagar filed Miscellaneous Case No.02 of 1998 under Order XXI Rule 97 of the Code of the Civil Procedure in the execution case on 03.03.1998 claiming on the basis of agreement for sale dated 08.02.1997 executed by Prabhat Kumar Sinha who claimed to be power of - 4 - attorney holder of judgment debtor, namely Samar Kumar Roy, who was in possession on the basis of the said agreement for sale. The learned Munsif II, Munger dismissed the aforesaid miscellaneous case vide his order dated 22.08.1998 finding that the applicant had no locus standi to contest the execution case filed by the petitioners. 7. Against the aforesaid order, opposite party no.1 filed Miscellaneous Appeal No.36 of 1998 and the lower appellate court allowed the said miscellaneous appeal by the impugned order dated 19.06.2008 on the ground that the learned Munsif had wrongly disposed of the matter only on mere assumption that a stranger on the basis of agreement for sale had no locus standi to oppose the decree when the execution case had been initiated by an assignee of the decree which had not been adjudicated properly and thus remanded the matter to the learned Munsif. Against the aforesaid order the instant civil revision has been filed by the petitioner of the execution case. 8. It may be noted in this connection that the matter is quite old and the lower appellate court kept the miscellaneous appeal pending for about a decade and after considering it in detail in eight pages did not decide and remanded the matter to the first court, although it was the duty of the appellate court to decide the matter itself as from the impugned order it was quite apparent that no further material was required to be exhibited or considered for proper adjudication, as all the relevant materials were already on record. Hence, in stead of remanding the matter, it was a fit case - 5 - which the appellate court should have decided itself one way or the other. 9. It is not in dispute that the final decree had attained finality and specific takhtas have been allotted to the co-sharers and the same had never been challenged by any one. Hence, all the parties of the suit were legally bound by the said final decree. Furthermore, the plaintiff-decree holder had himself along with another person assigned the decree in their favour to the petitioner by registered deeds dated 11.08.1997 and 10.12.1997 regarding which they themselves appeared in Execution Case No.01 of 1998 filed by the petitioner and supported the claim of the petitioner by filing petitions to that effect on its basis. In the said circumstances, the petitioner was legally justified in getting the decree executed with respect to that part of the decree which concerned the plaintiff and another person who had executed the registered deeds in his favour. 10. Similarly, the other co-sharer, namely Samar Kumar Roy, who was one of the defendants in the suit, was also bound by the said final decree and his right, title and interest was limited to the share allotted to him by the final decree and thus, even if the agreement for sale executed by his attorney in favour of O.P.No.1 was genuine, the claim of opposite party no.1 could not go beyond the Takhta which was allotted to Samar Kumar Roy. In the said circumstances, opposite party no.1 Prabhu Dayal Sagar could have raised objection only with respect to that portion of the property - 6 - which was allotted to Samar Kumar Roy and not with respect to any other portion and furthermore he could not have legally raised any claim against the land allotted to other co-sharers as per final decree and execution thereof. It is thus quite clear that the claim of O.P.no.1 under Order XXI Rule 97 C.P.C was not maintainable and was fit to be rejected under the provision of Order XXI Rule 98 C.P.C. 11. In the aforesaid facts and circumstances, the learned Munsif II, Munger was quite justified in dismissing Miscellaneous Case No.02 of 1998 filed by opposite party no.1, but the lower appellate court without appreciating the aforesaid facts and circumstances allowed the miscellaneous appeal on frivolous presumptions without appreciating the respective claims of the parties and the materials on which they were relying. In the said circumstances, the impugned order of the learned Additional District Judge-cum-Fast Track Court V, Munger dated 19.06.2008 passed in Miscellaneous Appeal No.36 of 1998 is hereby set aside and the order of the learned Munsif II, Munger dated 22.08.1998 passed in Misc. Case No.02 of 1998 is hereby affirmed. 12. Accordingly this civil revision is allowed with a direction to the executing court to take all necessary steps in accordance with law so that the litigation reaches its logical conclusion without any further delay. Sunil (S. N. Hussain, J.)