Patna High Court
Rita Devi vs Surendra Bahelia @ Surendra Ram on 19 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.523 of 2018
======================================================
Rita Devi W/o Suresh Prasad Yadav resident of Mohalla- Shyam Chak @ Sri
Ram Chak, P.S.- Bhagwan Bazar, District- Saran.
... ... Petitioner/s
Versus
1. Surendra Bahelia @ Surendra Ram S/o Late Timal Bahelia @ Timal Ram
resident of Mohalla- Shyam Chak, P.S.- Bhagwan Bazar, District- Saran.
2. Champa Kuer W/o Late Hira Bahelia resident of Mohalla- Shyam Chak,
P.S.- Bhagan Bazar, District- Saran.
3. Brajendra Bahelia S/o Late Hira Bahelia resident of Mohalla- Shyam Chak,
P.S.- Bhagan Bazar, District- Saran.
4. Brijesh Bahelia S/o Late Hira Bahelia resident of Mohalla- Shyam Chak,
P.S.- Bhagan Bazar, District- Saran.
5. Brajnandan Bahelia S/o Late Hira Bahelia resident of Mohalla- Shyam
Chak, P.S.- Bhagan Bazar, District- Saran.
6. Dhanraj Bahelia Minor son of Late Hira Bahelia under the guardianship of
their mother namely Champa Kuer, resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
7. Raja Babu Kumar Minor son of late Hira Bahelia under the guardianship of
their mother namely Champa Kuer, resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
8. Indu devi D/o Late Hira Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
9. Pooja Kumari Minor D/o Late Hira Bahelia under the guardianship of their
mother namely Champa Kuer, resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
10. Mira Devi D/o Late Naresh Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
11. Arun Bahelia S/o Rama Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
12. Anil Bahelia S/o Rama Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
13. Ravi Bahelia S/o Rama Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
14. Shashi Kumar S/o Rama Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
15. Shakuntala Devi D/o Rama Bahelia resident of Mohalla- Shyam Chak, P.S.-
Bhagan Bazar, District- Saran.
16. Suman Kumari minor daughter of Rama Bahelia under the guardianships of
father Rama Bahelia resident of Mohalla- Shyam Chak, P.S.- Bhagan Bazar,
District- Saran.
17. Kushum Kumari minor daughter of Rama Bahelia under the guardianships
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
2/18
of father Rama Bahelia resident of Mohalla- Shyam Chak, P.S.- Bhagan
Bazar, District- Saran.
18. Prabhawati Devi D/o Ganesh Bahelia resident of Mohalla- Shyam Chak,
P.S.- Bhagan Bazar, District- Saran.
19. Chandrawati Devi D/o Late Ganesh Bahelia resident of Mohalla- Shyam
Chak, P.S.- Bhagan Bazar, District- Saran.
20. Ramloki Rai S/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj, District-
Saran.
21. Triloki Rai S/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj, District-
Saran.
22. Ishloki Rai S/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj, District-
Saran.
23. Bishwamohan Rai S/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj,
District- Saran.
24. Radha Mohan Rai S/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj,
District- Saran.
25. Panmata Devi W/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj,
District- Saran.
26. Rajmuni Devi D/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj,
District- Saran.
27. Mukra Devi D/o Late Jhalku Rai resident of Jantola, P.S. Rivilganj, District-
Saran.
28. Babita Devi W/o Jitendra Prasad resident of Dharampura, P.S. Doriganj,
District- Saran.
29. Mangal Rai S/o Late Jadu Rai @ Jai Rai resident of Tarwa, P.S. Kopa,
District- Saran, at present- Masumganj, P.S. Bhagwan Bazar, District- Saran.
30. Rajkumari Devi W/o Rameshwar Mahto resident of Village- Masumganj,
P.S. Bhagwan Bazar, District- Saran.
31. Sapna Kumari D/o Minor D/o Late Prahalad Bahelia under the guardianship
of Prabhawati Devi (Fua) resident of Mohalla- Shyamchak, P.S. Bhagan
Bazar, District- Saran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ranjan Kumar Dubey, Advocate
Mr. Kumar Gaurav, Advocate
Mr. Ashish Anand, Advocate
For the Respondent/s : Mr. Arun Kumar Rai, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date :19-01-2024
The instant petition has been filed against the order
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
3/18
dated 17.02.2018 passed by the learned Sub-Judge-IV, Chapra in
Execution Case No. 03 of 2013 by which the learned Sub.
Judge-IV, Chapra rejected the petition dated 02.01.2018 filed on
behalf of the petitioner under Order 21 Rule 29 of the Code of
Civil Procedure, 1908 (hereinafter referred to as 'the Code').
02. Briefly stated the case of the parties may be
summarized as follows:-
The plaintiff/respondent no. 1, Surendra Baheliya,
filed Title Suit No. 209 of 1994 against Ganesh Baheliya and his
sons for partition of the suit property claiming 1/3rd share. The
plaintiff/respondent no. 1 is the grandson of one Lalu Baheliya,
who died leaving behind his three sons, namely, Ganesh
Baheliya, Naresh Baheliya and Timal Baheliya. Ganesh
Baheliya had two sons, namely, Hira Baheliya and Prahalad
Baheliya and two daughters, namely, Prabhawati and
Chandrawati. Hira Baheliya died leaving behind his widow, five
sons and two daughters. Hira Baheliya sold part of the disputed
land in favour of one Imdad Ali Khan during pendency of the
partition suit and later on, Imdad Ali Khan also sold his
purchased land in favour of the petitioner through registered
sale deed dated 11.09.2007 and handed her over its possession.
The petitioner got the land mutated in her name in revenue
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
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records and started paying rent to the State of Bihar. She also
constructed a residential house on her purchased land and
started residing there with her family members. Title Suit No.
209 of 1994 was contested by the vendor of the petitioner,
namely, Hira Baheliya and ultimately, the suit was dismissed
vide Judgment and decree dated 31.05.2007. Being aggrieved
and dissatisfied with the judgment and decree of the learned trial
court, the plaintiff/respondent no. 1 filed Title Appeal No. 40 of
2007. During pendency of the said appeal, the vendor of the
petitioner, namely, Hira Baheliya died, his heirs were substituted
and a compromise petition was filed, which was affidavited by
the wife of Hira Baheliya, namely, Champa Kuer. But, none had
represented the minor sons and daughter of late Hira Baheliya.
The said appeal was allowed in terms of compromise vide
judgment and decree dated 19.06.2009 holding that the plaintiff
was entitled to 1/3rd share in the suit land. The office was
directed by the learned first appellate court to prepare the decree
accordingly.
It is the further case of the petitioner that till today
no decree has been prepared by the learned trial court as per
direction of the learned first appellate court, but the
plaintiff/respondent no. 1 filed an application for preparation of
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
5/18
final decree on the basis of judgment and decree passed on
31.05.2007
. Accordingly, the Commissioner was appointed and
after accepting the writ, he prepared his report. Further case of
the petitioner is that she was not aware about the pendency of
the suit and for the first time she came to know about the same
at final decree stage and at the moment she came to know about
the pendency of the final decree proceeding, she filed an
application with a prayer to add her as a party but the same has
been rejected. Even the objection raised on the report of
Advocate Commissioner, has been rejected by the learned court
below and the report of the Commissioner was affirmed.
Thereafter, final decree was prepared vide judgment and decree
dated 23.02.2013. But, on 31.05.2007 on the basis of judgment
and preliminary decree dated 31.05.2007, the suit of the
plaintiff/respondent no.1 had been dismissed so, there was no
preliminary decree on 31.05.2007 and from perusal of final
decree, it is evident that final decree was to be prepared on the
basis of the preliminary decree passed by the learned Sub.
Judge-VII, Saran at Chapra dated 31.05.2007. On the basis of
aforesaid judgment and decree, the plaintiff/respondent no. 1
filed Execution Case No. 03 of 2013, in which, the name of the
petitioner was added showing that decree was to be executed
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
against her as well as some other persons. The moment
petitioner came to know about the same, she filed an application
under Order 21 Rule 97 which was registered as Misc. Case No.
22 of 2013. In the said Misc. Case, opposite party filed
objection on 08.09.2015 under Order 21 Rule 102. The learned
executing court, after hearing the parties in detail and after
going through the materials available on record, rejected the
objection petition filed by the plaintiff/respondent no. 1 under
Order 21 Rule 102 of the Code. The said order was challenged
in C.W.J.C. No. 2022 of 2016 before this Court, which was
allowed by a Co-ordinate Bench of this Court vide order dated
29.08.2016. The petitioner filed review petition against this
order, which was disposed of with liberty to file separate suit.
Prior to that, the petitioner filed Title Suit No. 174 of 2013.
03. It has been submitted by the learned counsel for
the petitioner that the petitioner was not a party at any stage of
the suit and when she tried to get herself impleaded as party at
final stage of decree, the same has been opposed by the
plaintiff/respondent no. 1. Further, preparation of final decree is
based on judgment and decree dated 31.05.2007 passed in Title
Suit No. 209 of 1994, which is not in accordance with law as
vide said judgment and decree dated 31.05.2007, the said suit
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
has been dismissed. Learned counsel further submits that the
final decree has been prepared against a dead person as Hira
Baheliya died on 18.06.2008 and he has been substituted in the
Title Appeal but in the final decree he has been made a party in
place of his heirs, which itself shows that no opportunity was
given to the legal heirs of the vendor of the petitioner by the
learned Advocate Commissioner at the time of preparation of
final decree and has allotted the land of the petitioner in favour
of the plaintiff/respondent no. 1 on which this petitioner has
been residing with her family members after constructing a
residential house. Raising all these issues, the petitioner filed an
application on 26.09.2016. Though the plaintiff/respondent no. 1
filed rejoinder but he did not give any reply to the objections as
raised by the petitioner. Learned counsel further submitted that
the learned executing court, after hearing both sides, finally
rejected the petition dated 26.09.2016, without application of
judicial mind and without assigning proper reasons and mainly
on the ground that the petitioner has raised objection with
respect to preliminary decree and not with respect to final
decree and further on the ground that she suppressed this fact
that her application for impleading her as party in the final
decree has already been rejected. Learned executing court has
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
failed to give its finding with respect to specific objections
regarding final decree, which had been prepared on the basis of
preliminary decree dated 31.05.2007, by which the suit was not
decreed, rather the same has been dismissed as such there was
no determination of rights of the parties. The learned executing
court did not record any finding regarding final decree which
has been prepared against a dead person. Learned counsel
further submitted that since the petitioner was not added as party
in the suit filed by the plaintiff/respondent no.1, she herself filed
an independent suit bearing Partition Suit No. 174 of 2013 with
respect to purchased land. During pendency of the Partition Suit
No. 174 of 2013, the petitioner filed an application under Order
21 Rule 29 of the Code on 02.01.2018 in Execution Case No. 03
of 2013 with a prayer to stay the further proceeding of execution
case till disposal of Partition Suit No. 174 of 2013. However, the
learned court below rejected the petition dated 02.01.2018.
During pendency of the Partition Suit No. 174 of 2013, the
decree holder filed an application under Order 7 Rule 11 of the
Code with a prayer to reject the plaint stating it to be not
maintainable. The learned court below rejected the petition filed
by the decree holder vide order dated 27.02.2018. Learned
counsel further submitted that both the cases are pending before
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
the same court and on one hand, the learned court below
dismissed the petition filed by the decree holder under Order 7
Rule 11 of the Code holding that issues have been framed and
evidence is going on, but, on the other hand, the same court
rejected the petitioner's petition on the ground that her name did
not find place in the decree under appeal. Learned counsel
further submitted that there has been no settlement/compromise
before the learned appellate court as after death of Hira
Baheliya, his wife and children moved an application before the
learned appellate court admitting the claim of 1/3rd share of the
plaintiff/respondent no. 1. Even in final decree, the legal
representatives of Hira Baheliya have not been made party.
Learned counsel further submitted that if contentious issues are
involved in writ proceedings, then normally stay should be
granted. On this aspect, learned counsel for the petitioner relied
on a decision of Hon'ble Apex Court in the case of Dinesh
Prabhulal Barat v. Sai Palace Hotels (P) Ltd., reported in
(2004) 13 SCC 667. On this aspect, learned counsel also relied
on the decision of Hon'ble Supreme Court in the case of
Shaukat Hussain v. Bhuneshwari Devi reported in AIR 1973
SC 528 [Paragraphs 4, 5 & 6]. Learned counsel further
submitted that the learned trial court has observed that the
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
petitioner was not a party in decree, which was sought to be
executed and the said decree was not issued against him, but the
petitioner was subsequently made party in the execution
proceeding. When the petitioner has been made party before the
executing court, naturally, she has a right to appear before the
learned executing court and to seek stay on the proceeding
before it. Learned counsel further submitted that the same
subject matter of suit proper is also the subject mater of
Partition Suit No. 174 of 2013. The spirit of Order 21 Rule 29 of
the Code is that the execution of a decree will be kept in
abeyance if any suit regarding the same property is pending
against the decree holder. Since, the petitioner has not been
made party, she was compelled to file the partition suit and
when she moved before the learned executing court to avail her
right, she stepped into shoes of her vendor. The learned counsel
further submitted that the legal representatives of original
defendant-Hira Baheliya were not made party in the final decree
proceeding, so, there was no occasion either for the petitioner or
for the legal representatives of her vendor to put up their case
before the learned Survey Knowing Pleader Commissioner, so
that he could have taken care of the objections of the petitioner
and could not have allotted her share to other co-sharer. Thus,
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
the learned counsel submitted that the impugned order is not
sustainable and the same be set aside.
04. Learned counsel appearing on behalf of
plaintiff/respondent no. 1 vehemently contended that there is no
infirmity in the impugned order and the same ought to be
sustained. Learned counsel further submitted that the learned
trial court dismissed the Partition Suit No. 209 of 1994 filed by
the plaintiff/respondent no. 1, but respondent no.1 preferred
Title Appeal No. 40 of 2007 and the learned first appellate court
allowed the appeal by its judgment dated 16.09.2009 and decree
dated 24.09.2009. Some purchasers/defendants have filed
second appeal before this Court against the aforesaid judgment
and decree passed in Title Appeal No. 40 of 2007 vide Second
Appeal No. 401 of 2009. This second appeal was dismissed at
the stage of admission itself on 02.05.2012, as no substantial
questions of law was found involved for consideration in the
second appeal. Learned counsel further contended that the
petitioner was never made party as judgment debtor in
Execution Case No. 03 of 2013, which was based on final
decree of Partition Suit No. 209 of 1994. Only the defendants
were shown in the column of judgment debtors and purchasers
of the land, which were allotted by final decree to the decree
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
holder/respondent no. 1, were made party in other column, who
were in possession of the allotted share of respondent no. 1.
Learned counsel further contended that showing the name of a
dead defendant, namely, Hira Baheliya is mistake on part of the
office. Learned counsel further submitted that the petitioner
appeared before the Executing Court and filed their objection
under Order 21 Rule 97 of the Code of of Civil Procedure in
Execution Case No. 03 of 2013 and the same was registered as
Misc. Case No. 22 of 2013. The respondent no. 1 questioned the
maintainability of the application of the petitioner and her
application being barred under Order 21 Rule 102 of the Code.
However, prayer of the respondent no. 1 was rejected by the
learned trial court vide order dated 06.01.2016. Thereafter, the
plaintiff/respondent no. 1 filed CWJC No. 2022 of 2016 against
the order dated 06.01.2016 passed in Misc. Case No. 22 of 2023
arising out of Execution Case No. 03 of 2013 before the High
Court. The High Court set aside the impugned order and
dismissed the Misc. Case No. 22 of 2013 holding it to be not
maintainable as barred under Order 21 Rule 102 of the Code
vide order dated 29.08.2016. In partition Suit No. 174 of 2013
filed by the petitioner, she filed an injunction petition to restrain
the respondent no. 1 from dispossessing her from the land. The
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
said petition was rejected by the learned court blow. The
petitioner approached this Court against the said order by filing
Misc. Appeal vide M.A. No. 238 of 2014. In the said Misc.
Appeal, the plaintiff/respondent no. 1 was directed not to
dispossess the petitioner from the property in question otherwise
than due course of law, during pendency of the Partition Suit
No. 174 of 2013, vide judgment dated 22.11.2017. Learned
counsel further submitted that the learned executing court has
rightly rejected the petition dated 17.02.2018 filed on behalf of
the petitioner under Order 21 Rule 29 of the Code on the ground
that the petitioner is not a judgment debtor. She purchased the
land during pendency of the Partition Suit No. 209 of 1994 and
after death of her vendor, his legal heirs and judgment debtor
lost the Partition Suit No. 209 of 1994 and for this reason
provisions under Order 21 Rule 29 of the Code are not attracted.
Learned counsel further pointed out that the petitioner has
wrongly contended that she has constructed a house over the
suit land as the plaintiff/respondent no. 1 specifically stated and
mentioned in Schedule-I of the plaint that there is ancestral
house of the respondent no. 1 on the suit plot no. 294, 295 and
296. If the vendor of the petitioner has lost the suit, the
petitioner cannot demand stay on the execution proceeding, as
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
the same can only be asserted by the legal heirs of her vendor.
Learned counsel further submitted that the present petition is
devoid of merit and the contention raised here have been
considered by this Court in Second Appeal and nothing new has
been submitted before this Court. So, the instant petition is
devoid of any merit and the same be dismissed.
05. I have given my thoughtful consideration to the
facts of the case as well as rival submissions of the parties.
Order 21, Rule 29 of the Code provides as under:-
"'Where a suit is pending in any Court
against the holder of a decree of such Court
or of a decree which is being executed by
such Court on 'the part of the person against
whom the decree was passed, the Court may,
on such terms as to security or otherwise, as
it thinks fit, stay execution of the decree until
the pending suit has been decided:
Provided that if the decree is one for payment
of money, the Court shall, if it grants stay
without requiring security, record its reasons
for so doing."
06. The plain reading of the provisions shows that it is
applicable in such cases where the suit is pending on part of the
person against whom the decree was passed. In the present case,
decree has not been passed against the petitioner, who is a
transferee pendente lite and for this simple reason, the learned
trial court vide impugned order dismissed the petition filed by
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
the petitioner under Order 21 Rule 29 of the Code.
07. The case of the petitioner is very peculiar but not
very uncommon. The petitioner is a purchaser pendente lite and
on merits of the case, the petitioner could not have much say.
The legal heirs of the vendor of the petitioner admitted 1/3rd
share of the plaintiff/respondent no. 1 and the learned first
appellate court disposed of the matter taking into consideration
the statements made by the heirs of Hira Baheliya along with
other martial facts. The order of the learned first appellate court
was not disturbed by this Court in second appeal, which did not
find any substantial question of law for consideration of the
second appeal, which was dismissed. It has been submitted that
this petitioner was not the appellant but the decision of this
Court will be binding on all concerned parties. Further claim of
the petitioner that she was not having knowledge and only came
to know about the subject matter when she was made party
before the executing court could not lessen her burden. The only
course open to her was to challenge the final decree and to put
her objection to the same and in case, it was not considered by
the court concerned, then to assail it before a Higher Court.
Obviously, the petitioner has not done any such thing and has
not taken recourse to the proper course of law.
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
08. At the same time, I do not find any substance in
the submission made on behalf of the petitioner about there
being no preliminary decree or final decree being against a dead
person. Once the decree of the learned trial court was reversed,
it is the judgment and decree of the first appellate court, which
become relevant for the purpose of preparation of final decree. It
is admitted fact that the legal heirs of the deceased-defendant,
Hira Baheliya, were substituted in his place before learned first
appellate court and even if the final decree mentions the name
of the deceased-defendant, i.e., Hira Baheliya, it is a clerical
mistake and not much importance could be attached to it.
09. Another striking aspect of the matter is the
partition suit of the petitioner. The petitioner has filed a suit for
partition against respondent no. 1 and I am not able to
understand the grievance of the petitioner against respondent no.
1. Admittedly, the respondent no. 1 got 1/3rd share from the
joint family property and his position was upheld till this Court
in second appeal. Since the petitioner is purchaser pendente lite
from a co-sharer, she can lay her claim only against her vendor
out of the share of her vendor. It is not the case of the petitioner
that she purchased more than the share of her vendor or that
even after allotment of 1/3rd share of the respondent no.1, the
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
share of the petitioner would remain intact or that the
respondent no. 1 got more than his 1/3rd share in partition in
terms of decision of the first appellate court. Utmost, the
petitioner could have done to make a prayer in the final decree
proceeding to fetch the property purchased by her to be allotted
to the share of her vendor. Evidently, the petitioner did not do
so.
10. In view of the discussion made herein above, the
decisions cited by the learned counsel for the petitioner are
distinguishable on the facts of the instant case and therefore, are
not of any help to the case of the petitioner. Hence, I do not find
that the petitioner has got any case in her favour, even her suit
against the respondent no. 1 appears to be misconceived and
merely filing a suit against respondent no.1, the decree holder,
would not make her entitled to seek relief under Order 21, Rule
29 of the Code, for the obvious reasons that no decree has been
passed against the petitioner and being purchaser pendente lite,
she did not get any right to step into the shoes of her vendor.
Therefore, I am of the considered opinion that there is no
infirmity in the impugned order dated 17.02.2018 passed by the
learned Sub-Judge-IV, Chapra in Execution Case No. 03 of 2013
and the same does not suffer from any jurisdictional error.
Patna High Court C.Misc. No.523 of 2018 dt.19-01-2024
11. Accordingly, the present Civil Misc. Petition
stands dismissed. However, the observations made here are only
for the purpose of disposal of the present petition and will have
no bearing on the case of the petitioner before the learned
subordinate court.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE 03-01-2024
Uploading Date 19-01-2024
Transmission Date N/A
