Jharkhand High Court
Naushad Khan vs Savitri Devi on 2 June, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 664 of 2023
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Naushad Khan ... Petitioner
-versus-
1. Savitri Devi
2. Lallu Khan. ... Opp. Parties.
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CORAM : SRI ANANDA SEN, J.
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For the Petitioner : M/s Amar Kr. Sinha, and Ajit Kumar, Advocates
For the Respondents :
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02/02.06.2023: The petitioner has filed this petition under Article 227 of the
Constitution of India praying therein to set aside the order dated 22.5.2023
passed by the learned Civil Judge (Senior Division)-VI, Ramgarh in Misc. Civil
Application No. 09 of 2023, arising out of Execution Case No. 81 of 2017,
whereby the application filed under Order-XXI Rules 99 and 101 of the Code of
Civil Procedure has been rejected.
2. I have heard the counsel for the parties and gone through the
record.
3. One Savitri Devi filed a Title Suit No. 54 of 1996 against Lallu Khan.
After the suit was decreed, the said Lallu Khan preferred an appeal, which was
dismissed. To execute the decree, Savitri Devi preferred an execution case
being Execution Case No. 81/2017. In the said execution case, this petitioner-
Naushad Khan, who happens to be brother of Lallu Khan (Judgment debtor)
preferred an application under Order XXI Rules 99 and 101 of the Code of Civil
Procedure claiming that the land in question which was decreed in favour of
Savitri Devi and others was settled in favour of his grand-father namely Jahir
Khan by virtue of Hukumnama. After the death of Jahir Khan, his only son Md.
Khalil Khan inherited the property and started residing there. Khalil Khan
partitioned the property along with other lands amongst his three sons, namely
Naushad Khan (the petitioner), Sakil Khan and Lallu Khan (Judgment debtor).
As per him, the suit property was allotted to the petitioner. He submits that the
title suit, which was filed by Savitri Devi and others against Lallu Khan is a
collusive suit and he was not aware of the suit. He was even not made a party in
the suit though he was in possession of the property. Now, the decree is to be
executed, the petitioner will thus be dispossessed for which, the application
under Order XXI, Rules 99 and 101 C.P.C was filed.
4. Learned counsel for the petitioner submitted that the Trial Court
should have adjudicated the entire issue by taking evidence but summarily
dismissed the application, which is against the provision of law. As per him,
since he was in possession of the land in question, by virtue of execution, he will
be dispossessed; thus, the application should have been entertained.
5. After hearing the petitioner and after going through the record, I find
that for execution of the decree, Execution Case No. 81/2017 was filed by
Savitri Devi against the judgment debtor Lallu Khan. Lallu Khan is the brother of
this petitioner. For the first time, in the execution case, this petitioner came up
with plea to hear him on the ground that he would be dispossessed if the decree
is executed as he has right, title and possession over the property in question.
While going through the impugned order, I find that on the earlier occasion, a
petition under Order XXI Rules 98 and 101 C.P.C was filed by Lallu Khan, which
was dismissed. Now this petitioner has filed the present petition under Order
XXI, Rules 99 and 101 C.P.C. . This is nothing, but an approach to stall the
execution process and to deprive the decree holder from the fruit of the decree.
6. Admittedly, this petitioner did not take any steps to ventilate his
grievance either in the suit or in the appeal, though he could have done so, but
rather waited for till execution of the decree when the Nazir went to execute the
decree by giving delivery of possession.
7. Further, I find that the Trial Court has taken note of the judgment by
the Hon'ble Supreme Court in the case of Sriram Housing Finance and
Investment India Ltd. V. Omesh Mishra Memorial Charitable Trust, reported
in 2022 SCC OnLine SC 794 and relying upon paragraph 18 of the said
judgment, has held that the application is not maintainable. The approach of the
petitioner is to stall the execution of the decree and to deprive the decree holder
from the fruits of the decree with the collusion of the judgment debtor.
8. Thus, I find no merit in this Civil Miscellaneous Petition. Accordingly,
the same is dismissed.
(ANANDA SEN, J.)
Anu/Cp-02
