Usha Sinha vs Dina Ram & Ors

3. Short facts of the case are that the respondent filed a suit being Title Suit No. 140 of 1999 on April 10, 1999 against (1) Arun Choudhary, (2) Poonam Choudhary, (3) Sukhdeo Singh, (4) Shambhu Prasad, and (5) Binod Kumar in the Court of Sub-Judge VI, Purnia. During the pendency of the said suit, defendant No. 4- Shambhu Prasad and defendant No.5-Binod Kumar sold their share in the property in respect of which the suit was pending, to the appellant by a registered sale deed dated February 15, 2000. On May 24, 2001, ex-parte decree was passed against the defendants in Title Suit No. 140 of 1991. In the judgment rendered by Sub-Judge VI, Purnia, it was observed that though the defendants were duly served with the summons and there was publication of summons also in daily newspaper, the defendants did not appear. The case was fixed for ex-parte hearing vide an order dated April 10, 2001. The plaintiff and his witnesses were examined and on the basis of the said evidence, the suit was decreed. It was held that plaintiff had right and title over the suit land and he was entitled for recovery of possession of land shown in Schedule B.

4. The appellant, Binay Kumar Sinha, Pawan Kumar Choudhary and Ratandeo Prasad Choudhary filed Title Suit No. 226 of 2001 in the Court of Sub-Judge I, Purnia against respondent-Dina Ram and others. It was asserted in the plaint that the appellant (Usha Sinha) had purchased the property and was the absolute owner thereof. It was further stated that the respondent (plaintiff of Title Suit No. 140 of 1999) had wrongfully and illegally filed a suit for recovery of possession of property. No notice was served to the defendants, or to the appellant (purchaser of property) and the decree was illegal, inexecutable and null and void. It was also fraudulent, collusive and was obtained by suppressing true and real facts. It was, therefore, prayed that the decree passed in Title Suit No. 140 of 1999 be declared as null and void, being fraudulent, collusive and without jurisdiction holding that the plaintiff of Title Suit No. 140 of 1999 had no right, title or interest in the property.

6. It may be stated that for execution of decree passed in Title Suit No. 140 of 1999, a petition, being Execution Case No. 10 of 2002 was filed by the respondent-plaintiff who was the decree holder. The present appellant filed an application for injunction under Order 39, Rules 1 and 2, Order 21, Rule 29 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code) against the respondent-decree holder, inter alia, contending that the ex-parte decree passed in Title Suit No. 140 of 1999 was not legal and valid and could not be executed against her. It was further stated that a substantive suit was filed by the appellant being Title Suit No. 226 of 2001 and till that suit is finally decided, execution should be stayed and the decree-holder should be restrained from interfering with the possession of the appellant (plaintiff of Title Suit No. 226 of 2001). The respondent contested the application contending that no such application could lie under Order XXI, Rule 29 of the Code. The application came to be rejected by the Court on August 16, 2003. In view of rejection of the application, the appellant moved the Executing Court in which Execution Case No. 10 of 2002 was pending. The application was registered as Misc. Case No. 13 of 2003. In the application, it was stated by the appellant that she had purchased the property by a registered sale deed dated February 15, 2000; that she had also filed Title Suit No. 226 of 2001 for setting aside ex-parte decree in Title Suit No. 140 of 1999 which was pending; if during the pendency of the substantive suit filed by her, ex-parte decree is executed, irreparable loss and injury would be caused to her. The Executing Court, vide an order dated November 20, 2003, allowed the application and stayed further proceedings in Execution Case No. 10 of 2002 till the disposal of Misc. Case No. 13 of 2003. Being aggrieved by the said order, the respondent approached the High Court by filing Revision Petition. The High Court allowed the Revision and set aside the order of the Executing Court which has been challenged by the appellant by invoking Article 136 of the Constitution.

17. The above observations, in our opinion, lay down correct proposition of law.

25. For the aforesaid reasons, the appeal deserves to be dismissed and is accordingly dismissed. On the facts and in the circumstances of the case, however, there shall be no order as to costs.