Jharkhand High Court
Satyadeo Prasad vs Bimlendra Kumar Singh on 6 May, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:13597
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 407 of 2023
Satyadeo Prasad, aged about 61 years, S/o Late Parmanand Prasad, R/o
Late Bich Bazar, Govindpur, P.O. & P.S. Govindpur, District- Dhanbad
... Petitioner
-Versus-
1. Bimlendra Kumar Singh, S/o Late B.N. Singh
2. Deepak Kumar Singh, S/o Bimlendra Kumar Singh,
Both R/o Housing Colony, (Sadar Patel Nagar), Dhanbad, P.O., P.S. &
District- Dhanbad, Jharkhand
3. Smt. Minoo Singh, W/o Sri Ranjay Kumar Singh, R/o B-79, P.C. Colony,
Kankarbagh, Patna, P.O. & P.S. Kankarbagh, District- Patna (Bihar)
4(i). Shobha Rani Burman, W/o Late Ram Chandra Burman
4(ii). Prabhat Kumar Burman, S/o Late Ram Chandra Burman
Both R/o Bich Bazar, Govindpur, P.O. & P.S. Govindpur, District- Dhanbad,
Jharkhand
4(iii). Namrata Priya, D/o Late Ram Chandra Burman, W/o Vivek Barun, R/o
Sector- 9(A), Street-2, Qr. No.356, B.S. City, P.O. & P.S. B.S. City, District-
Bokaro, presently residing at Flat No.658, D.D.A. Flat, Sri Awas, Dwarika,
P.O., P.S. & District- New Delhi-110005
5. Birendra Prasad Burman @ Birendra Prasad Sonar
6(i). Rita Devi, W/O Late Mahendra Prasad Burman
6(ii). Rajesh Burman, S/o Late Mahendra Prasad Burman
Both R/o Bich Bazar, Govindpur, P.O. & P.S. Govindpur, District-
Dhanbad, Jharkhand- 828109
6(iii). Rinki Burman, D/o Late Mahendra Prasad Burman, W/o Sudhir Verma,
R/o Chutiya Bazar, Near Mahadev Manda, P.O. & P.S. Chutiya, District-
Ranchi, Jharkhand- 834001
6(iv). Pinki Burman, D/o Late Mahendra Prasad Burman, W/o Pradeep Verma,
R/o Village Chanaro, P.O. & P.S. Charhi, District- Hazaribag, Jharkhand-
825336
7. Pradeep Burman @ Pradeep Sonar
8. Lakhi Burman @ Pradeep Sonar
9. Shiva Burman @ Shiva Sonar
O.P. Nos.5 and 7 to 9 all son of Late Sarju Sonar
10. Sunil Burman @ Sunil Sonar
11. Anil Burman @ Anil Sonar
O.P. Nos. 10 and 11 sons of Late Raj Kumar Prasad Burman @ Sonar
12. Satya Narayan Prasad, S/o Late Parmanand Prasad
O.P. Nos.5 and 7 to 12 are R/o Late Bich Bazar, Govindpur, P.O. & P.S.
Govindpur, District- Dhanbad ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Navin Kumar, Advocate
For O.P. Nos. 1 to 3 : Mr. Amartya Choudhary, Advocate
Ms. Oishi Das, Advocate
For O.P. No.4(iii) : Mr. Shashank Kumar, Advocate
2025:JHHC:13597
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16/06.05.2025 Heard Mr. Navin Kumar, learned counsel for the petitioner, Mr. Amartya
Choudhary, learned counsel appearing for opposite party nos. 1 to 3
and Mr. Shashank Kumar, learned counsel appearing for opposite party
no.4(iii).
2. So far other opposite parties are concerned, notices upon them have
already been effected, however, they have chosen not to appear in the matter
and, as such, this petition is being heard in absence of opposite parties, who
have not appeared in spite of valid service of notice.
3. This petition has been filed under Article 227 of the Constitution of
India for setting aside the order dated 20.03.2023 passed in Execution Case
No.367 of 2018 by the learned Civil Judge (Sr. Division)-IV, Dhanbad,
whereby, he has been pleased to allow the petition dated 17.02.2023 filed by
the decree holders/plaintiffs under Order XXI Rule 32(5) read with Rule 35 of
the CPC.
4. Mr. Navin Kumar, learned counsel for the petitioner submits that the
original plaintiff instituted Title Suit No.55 of 2009 before the learned Court
on 19.02.2009 for declaration of title and confirmation of possession of
the plaintiff over the land described in the schedule of the plaint and
alternative prayer was made for recovery of possession of the land described
in the schedule of the plaint. He submits that on contest the said suit was
decreed vide judgment dated 11.06.2018 (decree signed on 20.06.2018)
in favour of the opposite parties/plaintiffs. He further submits that against the
said decree, the petitioner herein preferred First Appeal No.309 of 2018,
which is still pending in the Court of the learned District Judge, Dhanbad.
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He also submits that in the meantime, the decree holder instituted execution
case being Execution Case No.367 of 2018, in which, the petitioner
herein, who is judgment debtor has filed objection under Section 47 of the
CPC, which was registered as Misc. Case No.61 of 2019 and the same
has been decided by the learned Court vide order dated 06.07.2019. He then
submits that in the meantime, the learned Executing Court has issued the
writ of delivery of possession and Nazir was directed to execute the
decree. He further submits that the report of the Nazir contained in
Annexure-8 is there, wherein, he has stated that partly the decree has been
executed and he has found that there are five rooms in place of two rooms.
He submits that thereafter another petition was filed by the decree holder
under Order XXI Rule 35 of the CPC, which has been allowed by the
learned Court illegally. He submits that in this background, this petition
has been filed and the decree was passed only for two rooms and
vacant possession of 12 decimals of land, however, there are five rooms and,
as such, the direction of issuing fresh writ of delivery of possession is
illegal. On these grounds, he submits that the impugned order may kindly be
set-aside.
5. Learned counsel appearing for the opposite parties opposed the prayer
and submits that only remedy with the petitioner, if he is still aggrieved, is
that to get proper order by the learned first appellate court as the decree is
under challenge either he may take stay order or he may agitate all the
grounds in the said first appeal.
6. It is an admitted position that the said suit was decreed in favour of
the plaintiffs/opposite parties and aggrieved with that, the petitioner herein
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has preferred the said first appeal, which is still pending. The objection was
made by the petitioner under Section 47 of the CPC, which has already been
decided by the learned Court vide order dated 06.07.2019. The writ of
delivery of possession has been partly executed in light of the Nazir's report,
contained in Annexure-8. Subsequently, further petition was filed for issuance
of fresh writ of delivery of possession, which has been allowed by the learned
Court. It transpires from the said judgment impugned herein dated
20.03.2023 that the judgment debtors have themselves admitted in
paragraph 13 of the written statement that apart from two rooms, Khapra
pose house besides the existing house upon vacant portion of Plot No.1458
has been constructed by his maternal grandfather and the learned Court has
found that all the issues have already been adjudicated in the judgment and
delivered in the said suit and, thereafter, direction has been issued to hand
over the vacant possession of two rooms situated over the land described in
the schedule of the plaint to plaintiffs within 60 days from the date of decree
as well as direction was also there of permanently restrained from interfering
with the plaintiff's possession over the schedule land in any manner. The Court
finds that the direction of first writ of delivery of possession was not executed
and, thereafter, the learned Court has passed the second order on the petition
under Order XXI Rule 35 of CPC and if such a situation is there, the learned
Court has rightly passed the order. Further, it is well-settled that the first
appeal is continuation of trial court's proceeding and all the grounds can be
looked into by the learned first appellate court and so far as the case in hand
is concerned, the first appeal preferred by the petitioner is still pending before
the Court of the learned District Judge, Dhanbad.
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7. In the aforesaid backgrounds, the Court finds that there is no illegality
in the impugned order passed by the learned Civil Judge (Sr. Division)-IV,
Dhanbad in Execution Case No.367 of 2018 and, as such, this petition is
dismissed.
8. Interim order, if any granted by this Court, is vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/
