Patna High Court
Kamini Devi And Ors vs Raghvendra Shahi Alias Raghvendra ... on 7 January, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1638 of 2018
======================================================
1. Kamini Devi Wife of Dinesh Singh
2. Dinesh Singh Son of Late Ramchandra Singh Both resident of Village Athari
Rampur, P.S. Runni Saidpur, Dist-Sitamarhi, presently residing at Village-
Sahbajpur, P.S. Ahiyapur, Dist-Muzaffarpur
3. Ram Kali Devi Wife of Shyamnandan Singh R/o Village-Narma,
P.S.Hathauri, Dist-Muzaffarpur presently residing at Village Sahbajpur, P.S.
Ahiyapur, Dist-Muzaffarpur
... ... Petitioners
Versus
1. Raghvendra Shahi Alias Raghvendra Prasad Shahi Son of Late Dhanusha
Lal Shahi R/o Village Sahbajpur Salem, P.O. Bhikhanpur Kothi, P.S.
Ahiyapur, Dist-Muzaffarpur
2. Most Bachchi Devi Wife of Late Ratneshwar Chaudhary R/o Villag
Sahbajpur, P.O. Bhikhanpur Kothi, P.S. Ahiyapur, Dist-Muzaffarpur
3. Raj Kishor Singh Son of Late Kashi Singh
4. Dr Awadhesh Singh Son of Late Kashi Singh Respondent no 3 and 4
resident of Village and P.O.-Narma, P.S. Hathauri, Dist-Muzaffarpur
5. Janki Devi Wife of Ramsanjivan Singh R/o Village Morsand, P.O.
Mananpur, P.S. Runnisaidpur, Dist-Sitamarhi
6. Lalita Devi Wife of Sitaram Singh
7.1. Aash Narayan Singh Son of Shatrughan Singh, Resident of Village and PO
Chahutan, PS Aurai, Dist. - Muzaffarpur.
7.2. Bimal Kumar Singh Son of Shatrughan Singh Resident of Village and PO
Chahutan, PS Aurai, Dist. - Muzaffarpur.
8. Prabhu Singh Son of Late Tapeshwar Singh
9.1. Pinkey Devi Wife of Late Ram Kishore Singh, Resident of Village and Po
Narma, PS Hathauri, Dist. - Muzaffarpur.
9.2. Dipak Kumar Singh Son of Late Ram Kishore Singh, Resident of Village
and Po Narma, PS Hathauri, Dist. - Muzaffarpur.
10. Tuntun Kumar Singh Son of Late Chandra Kishore Singh, Resident of
1. Village Morsand, PS - Runni Saidpur, Dist. - Sitamarhi.
10. Manoj Kumar Singh Son of Late Chandra Kishore Singh, Resident of
2. Village Morsand, PS - Runni Saidpur, Dist. - Sitamarhi.
10. Saroj Kumar Singh Resident of Village Morsand, PS - Runni Saidpur, Dist. -
3. Sitamarhi.
11. Ram Vinay Singh Son of Late Ramashish Singh Respondents 10 and 11
resident of village Morsand, P.O. Mananpur, P.S. Runnisaidpur, Dist-
Sitamarhi
12. Dharmshila Devi Wife of Bhogendra Shahi R/o Village Shahi Minapur, P.S.
Aurai, Dist-Muzaffarpur
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
2/29
13. Usha Devi Wife of Raghvendra Singh R/o Village and P.O.-Athari, P.S.
Runni Saidpur, Dist-Sitamarhi
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Vaidehi Raman Prasad Singh, Advocate
For the Respondent No.1: Mr. K. N. Chaubey, Sr. Advocate
Mr. Dineshwar Pandey, Advocate
Mr. Ashok Kumar Garg, Advocate
Mr. Kumar Kartikeya, Advocate
For the Respondent No.2: Mr. Sunil Kumar Verma, Advocate
Mr. Suman Kumar, Advocate
Mr. Anish Kumar, Advocate
Ms. Anjali Singh, Advocate
Mr. Amresh Kumar Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date: 07-01-2025
The instant petition has been filed under Article 227
of the Constitution of India for quashing the order dated
16.08.2018
passed by the learned Sub Judge-I, East Muzaffarpur
in Execution Case No. 01 of 2007, whereby and whereunder the
learned executing court rejected the application filed by the
petitioners under Order 21 Rule 97 r/w Section 151 of the Code
of Civil Procedure, 1908 (for short 'the Code') for impleading
them as intervenors/judgment debtors in the execution case.
02. Briefly stated, the facts leading to the present
petition, are that one Newazi Lal Shahi filed Partition Suit No.
75 of 1964 in the court of learned Sub Judge-I, Muzaffarpur for
partition of the half share in the suit land impleading Dhanukha
Lal Shahi, wife of Dhanukha Lal Shahi and Raghvendra Shahi
(son of Dhanukha Lal Shahi) as defendants. Raghvendra Shahi
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
is respondent no. 1 in the present petition. The portion of suit
land was transferred by both parties to different persons and
they were impleaded as party in the suit. Partition Suit No. 75 of
1964 was decreed ex parte on 16.09.1965. The Pleader
Commissioner submitted its report in the year 1967 in the suit to
effect partition of the suit land. The report was objected to by
the judgment debtors but the objection was rejected. Title
Appeal No. 85 of 1975 was filed against the final decree and by
the judgment and order dated 26.11.1975, the matter was
remanded to trial court with a direction that the Pleader
Commission be again directed to invite objections from the
judgment debtors on 'Raibandi' and 'Pattibandi'. The decree-
holder filed Second Appeal No. 63 of 1976 against the judgment
and decree of the learned first appellate court. In the meantime,
Bachchi Devi, who was the daughter of Newazi Lal Shahi and
one of the parties in the partition suit, transferred one Kattha
land of Khesra No. 764 to her daughter, Urmila Devi, on
02.03.1983 and put her in possession of the same. In Second
Appeal No. 63 of 1976, this Court directed the learned trial
court to appoint a Pleader Commissioner afresh with direction
that Pleader Commissioner would ensure that the property
already sold to third party by the plaintiff/defendants is retained
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
in their respective shares. Second Appeal No. 63 of 1976 was
finally decided by the order dated 22.04.1985 with modification
in the report of Pleader Commissioner that a fresh division of
plot nos. 1, 24, 26, 54 and 56 should be made from South to
North maintaining the area and compactness allotted to the
parties. Bachchi Devi made further gift of 03 kattha land of plot
no. 764 to her another daughter, Anita Devi, and put her in
possession of the same. On 07.06.1994, Bachchi Devi
transferred one kattha land of Khesra No. 268 situated at
Village-Sahbajpur to Ram Kali Devi, petitioner no. 3 herein, and
put her in possession of the same. Ram Kali Devi constructed a
pucca house over the land purchased by her and she has been
residing therein with her family. The Pleader Commissioner
submitted its further report, which was objected by the judgment
debtor and vide order dated 29.04.1999 passed by the learned
trial court, the objection was rejected and the report dated
03.09.1996 of the Pleader Commissioner was accepted.
Meanwhile, Anita Devi transferred 06 decimals (1760 sq. ft.)
land of plot no. 764 to Dinesh Singh, petitioner no. 2 herein,
through a sale deed dated 28.12.1996. Urmila Devi transferred
686 sq. ft. (1.56 decimals) land of Khesra No. 764 to Kamini
Devi, petitioner no. 1 herein, 19.06.1998 through a sale deed
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
and put her in possession of the same. Dinesh Singh executed a
deed of surrender to his wife, Kamini Devi, on 15.06.1999 for
06 decimals of land purchased in his name on 28.12.1996.
Kamini Devi and Dinesh Singh also constructed a pucca
residential house over the land purchased by them and they have
been residing therein with their family. Final decree was
prepared in the suit on 22.06.1999, which was challenged by the
Judgment debtor before this Court in Civil Revision No. 930 of
1999. The civil revision case came to be dismissed vide order
dated 01.09.1999. Thereafter, the judgment debtor filed SLP No.
15756 of 1999 before the Hon'ble Supreme Court challenging
the order passed in C.R. No. 930 of 1999, which was dismissed
on 01.03.2000. Execution Case No. 1 of 2007 was filed by the
respondent no. 1 for execution of the final decree. Petitioner
nos. 1 and 2, on 20.01.2018, filed an application in execution
case for impleading them as intervenors/judgment debtors in the
case. Similarly, petitioner no. 3 also filed an application in the
execution case for impleading her as an intervenor/judgment
debtor on 20.01.2018. The learned Sub Judge-I, East
Muzaffarpur, vide order dated 16.08.2018, rejected the petitions
filed by the petitioners, which is under challenge before this
Court.
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
03. Learned counsel for the petitioner, Mr. Vaidehi
Raman Prasad Singh, submitted that the impugned order is not
sustainable and the same requires interference by this Court.
The petitioners were not made parties in the execution case
despite full knowledge of the decree-holder about the sale-deeds
executed by the owner and the co-sharer. The petitioners have
constructed buildings on their purchased land 20 years back and
mutation of the land has also been made in their favour but the
Advocate Commissioner, without visiting the spot prepared
Pattibandi and carved out separate Patti for respondent no. 1
and the same has been accepted by the executing court and
order for delivery of possession has been passed. The petitioners
were neither made parties in the partition suit or in the execution
proceeding though the decree-holder was all along having the
knowledge of transfer of properties to the petitioners by his co-
sharer. Mr. Singh further submitted that vendors of petitioner
nos. 1 and 2 were the ostensible owners of the land purchased
by the petitioner nos. 1 and 2 under Section 41 of the Transfer of
Property Act, 1882 (for short 'the Act'). Petitioners had
purchased the land in good faith from their vendors, who
transferred the land for valid consideration. The petitioners had
taken reasonable care to ascertain that their vendors had power
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
to make the alienation and they have purchased the land in good
faith. Mr. Singh reiterated that the petitioners have constructed
their pucca residential houses over the land purchased by them
and they have been residing in it for the last 25-30 years and
could not be dispossessed in casual manner. The learned
executing court was duty bound to decide the objection of the
judgment debtors in judicious manner and could not have
brushed aside their objection merely on the ground of the
petitioners being the purchasers lis pendens. Moreover, in the
light of the order dated 18.05.1984 passed in Second Appeal No.
63 of 1976, the land transferred by the parties in the title suit to
the third party ought to have been given in the share of the
transferors, but the Pleader Commissioner prepared pattibandi
against the orders of this Court, which would cause great
hardship to the petitioners, who are bonafide transferors from
the parties in the suit. Even the respondent no. 1 has transferred
the share of respondent no. 2 to the third parties through four
sale deeds dated 04.03.2020, 07.08.2020, 08.12.2020 and
04.07.2021, respectively, which have been executed by the
respondent no. 1. This buttresses the fact that the land purchased
by the petitioners ought to have been given in the share of their
transferors and the other-side could have been compensated by
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
allotting the land from the share of the vendors of the
petitioners. In these facts and circumstances, the sale deeds of
the petitioners are neither void nor voidable and the petitioners
ought to have been given a chance of hearing in the execution
case. Mr. Singh further submitted that towards compliance of
orders of this Court passed in second appeal, the report was
submitted by the Pleader Commissioner on 03.09.1996 and the
same was confirmed on 29.04.1999 and the sale deeds have
been executed on 07.06.1994, 28.12.1996 and 19.06.1998 and
these three sale deeds would be safe by orders of this Court
passed in Second Appeal No. 63 of 1976.
04. Mr. Singh relied on a number of decisions in
support of his submission. Mr. Singh first relied on the decision
of a Single Judge Bench of this Court in the case of Ramjanam
Ahir & Ors. Vs. Beyas Singh & Ors., reported in AIR 1958 Pat
537 wherein it has been held that the true meaning and
interpretation of Section 41 is that the person who is the
ostensible owner of the property must be such ostensible owner
of the property with the consent, express or implied, of the
person interested in such property, and, for a transfer by such an
ostensible owner the consent of the real owner is not needed;
and if the transferee takes the transfer from such an ostensible
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
owner then he is protected under the Proviso to Section 41 of
the Act, only if it is proved by him that he, after taking requisite
care to ascertain that the transferor had power to make transfer,
had acted in good faith. Mr. Singh further relied on the decision
of Full Bench of Lahore High Court in the case of Shamsher
Chand v. Bakhshi Mehr Chand and others, reported in AIR
(34) 1947 Lahore 147, wherein it has been held that in order to
deprive under Section 41 of the Act, a real owner of his rights in
immovable property, it must be established that he had given his
consent, express or implied, to another person to represent
himself as the owner of the said property. This consent may be
by word or by conduct. Mr. Singh submitted that the decree-
holder/respondent no.1 has all along in knowing about the
transfer and has, in fact, acquiesced it. Moreover, it was a joint
family property and both the parties have transferred the land of
joint stock and there has been implied consent of the decree
holder to the transfer of the suit property to the petitioners. Mr.
Singh next referred to a Division Bench decision of Madras
High Court in the case of Sethumadhava Aiyar v. Bacha Bibi
& Ors, reported in AIR 1928 Mad 778 on the proposition that
the petitioners were required only to take reasonable care in
ascertaining whether the transferor had power to transfer the suit
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
land and acting in that belief and finding that his vendor had
been in uninterrupted possession of the property for many years
obtain a transfer, such a case may also be covered by the terms
of Section 41 as the Hon'ble Division Bench held that the
reasonable care prescribed by Section 41 should have reference
only to the reasonable care to see whether by the terms under
which the ostensible ownership itself is constituted the power to
transfer is given or possessed. Being joint owner, there was no
doubt over the title of the vendors of the petitioners and by such
transfer right have accrued in favour of the petitioners and their
purchase and possession must be protected since they have been
coming into possession for more than 20 years. Mr. Singh,
thereafter, referred to the decision of Hon'ble Supreme Court in
the case of Bangalore Development Authority Vs. N. Nanjappa
& Anr., reported in (2022) 18 SCC 156 on the scope of Order 21
Rule 97, 99 and 101 of the Code, wherein the Hon'ble Supreme
Court has held that objection is required to be adjudicated upon
by the executing court while considering the
application/obstruction under Order 21 Rule 97 or Rule 99 of
the Code and held the order of the executing court dismissing
application filed by the objector for impleadment in execution
proceeding and/or dismissing obstruction application as
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
erroneous. Thus, Mr. Singh submitted that the impugned order is
not justifiable in the eyes of law as the petitioners have
purchased the land from the rightful owner and the share of the
petitioners in suit land ought to have been carved out from the
share of their transferor and for this reason, the impugned order
needs to be set aside.
05. Learned Senior counsel, Mr. K. N. Chaubey,
appearing on behalf of respondent no. 1 vehemently contended
that there is no merit in the present petition and the same needs
to be dismissed in limine. Mr. Chaubey, at the outset, submitted
that Section 41 of the Act has no application in the present case
as it was not a transfer by the ostensible owner. Admittedly, the
transfer was made by co-sharers in a joint family property
during pendency of the partition suit and the same is hit by
Section 52 of the Act. A transferee pendente lite cannot put any
objection to execution of decree. Resistance to execution of
decree of third party could be allowed under Order 21 Rule 97
to 106 of the Code. Those rules are intended to deal with every
sort of resistance or obstructions offered by any person.
However, if the resistance was made by a transferee pendente
lite of the judgment debtor, the scope of the adjudication would
be shrunk to the limited question whether he is such transferee
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
and on a finding in the affirmative regarding that point the
executing court has to hold that he has no right to resist in view
of the clear language contained in Rule 102 of Order 21 of the
Code.
06. In support of his submission, Mr. Chaubey
referred to a decision of Hon'ble Supreme Court in the case of
Silverline Forum Pvt. Ltd v. Rajiv Trust & Anr., reported in
AIR 1998 SC 1754, wherein the Hon'ble Supreme Court in
Para-10 held as under:
"10. It is true that R. 99 of O. 21 is not
available to any person until he is dispossessed
of immovable property by the decree-holder.
Rule 101 stipulates that all questions "arising
between the parties to a proceeding on an
application under Rule 97 or Rule 99" shall be
determined by the executing court, if such
questions are "relevant to the adjudication of
the application". A third party to the decree who
offers resistance would thus fall within the
ambit of Rule 101 if an adjudication is
warranted as a consequence of the resistance or
obstruction made by him to the execution of the
decree. No doubt if the resistance was made by
a transferee pendente lite of the judgment
debtor, the scope of the adjudication would be
shrunk to the limited question whether he is
such transferee and on a finding in the
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
affirmative regarding that point the execution
court has to hold that he has no right to resist in
view of the clear language contained in Rule
102. Exclusion of such a transferee from raising
further contentions is based on the salutary
principle adumbrated in Section 52 of the
Transfer of property Act.
When a decree-holder complains of
resistance to the execution of a decree it is
incumbent on the execution court to adjudicate
upon it. But while making adjudication, the
court is obliged to determine only such question
as may be arising between the parties to a
proceeding on such complaint and that such
questions must be relevant to the adjudication of
the complaint.
The words "all questions arising between
the parties to a proceeding on an application
under Rule 97" would envelop only such
questions as would legally arise for
determination between those parties. In other
words, the Court is not obliged to determine a
question merely because the resistor raised it.
The questions which executing Court is obliged
to determine under Rule 101, must possess two
adjuncts. First is that such questions should
have legally arisen between the parties, and the
second is, such questions must be relevant for
consideration and determination between the
parties, e.g. if the obstructor admits that he is a
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
transferee pendente lite it is not necessary to
determine a question raised by him that he was
unaware of the litigation when he purchased the
property. similarly, a third party, who questions
the validity of a transfer made by a decree-
holder to an assignee, cannot claim that the
question regarding its validity should be decided
during execution proceedings. Hence, it is
necessary that the questions raised by the
resistor or the obstructor must legally arise
between him and the decree-holder. in the
adjudication process envisaged in Order 21
Rule 97(2) of the Code, execution court can
decide whether the question raised by a resistor
or obstructor legally arises between the parties.
An answer to the said question also would be
the result of the adjudication contemplated in
the sub-section."
07. Mr. Chaubey referring to the aforesaid decision of
Hon'ble Supreme Court submitted that scope of proceeding
under Order 21 Rule 97 to 106 of the Code cannot be enlarged
and a transferee pendente lite cannot obstruct the execution
proceeding or resist delivery of possession to decree holder. Mr.
Chaubey pointed out that the litigation in this matter started in
1964 and for about 60 years the matter has been pending
depriving the decree holder of the suit after decree. Mr. Chaubey
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
next referred to the decision of this Court in the case of Dhira
Mishra @ Dhira Devi & Ors. vs Md. Laique Ahmad & Ors.
(Civil Misc. No. 26 of 2019) decided on 06.02.2024 wherein
this Court quoted the observation of the Privy Council in the
case of Court of Wards vs. Maharajah Coomar Ramaput
Sing), (1871-72)14 MIA 605, also reported in (1872) SCC
OnLine PC 16 wherein it has been held "that the difficulties of
a litigant in India begin when he has obtained a decree" still
holds true and the situation has not improved even after a
century and half.
08. Mr. Chaubey further submitted that there has been
never any acquiescence on part of the respondent no. 1 to the
sale effected by the co-sharers and the petitioners could not
claim any right on the basis of such claim. Mr. Chaubey further
submitted that the petitioners were all along knowing about the
proceedings pending before the learned trial court and still, they
purchased the litigation and now they seek condonation of their
wrongful act by this Court, which is simply not permissible. Mr.
Chaubey, thereafter, pointed out that powers under Article 227
of the Constitution of India is not to be exercised in such matter
when there is no infirmity in the impugned order. The impugned
order is a well reasoned and speaking order and could not be be
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
faulted. In such circumstances, there is very little scope for this
Court to intervene in the matter. Mr. Chaubey referred to the
decision of the Hon'ble Supreme Court in the case of Jai Singh
and Ors. vs. Municipal Corporation of Delhi and another
reported in (2010) 9 SCC 385 wherein it has been held that the
powers under Article 227 should not be exercised like "a bull in
a china shop", to correct all errors of judgment of a court, or
tribunal, acting within the limits of its jurisdiction. This
correctional jurisdiction can be exercised in cases where orders
have been passed in grave dereliction of duty or in flagrant
abuse of fundamental principles of law or justice. It has further
been held that the High Court has the power to reach injustice
whenever, wherever found within the scope and ambit of its
powers under Article 227 of the Constitution of India. Mr.
Chaubey further submitted that though the petitioners have been
seeking sympathy of this Court on the ground that they have
purchased the property 20-25 years back and have been coming
into its possession and have constructed pucca houses, but any
sympathy in their favour would be misplaced as the same would
be against the law. Mr. Chaubey further submitted that the legal
maxim "dura lex sed lex" which means "the law is hard but it is
the law", stands attracted in such a situation. Thus, Mr. Chaubey
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
submitted that there is no infirmity in the impugned order and
the same needs to be sustained.
09. Joining the issue with learned senior counsel, Mr.
Chaubey, learned counsel, Mr. Sunil Kumar Verma, appearing
on behalf of respondent no. 2, vehemently contended that the
impugned order is not sustainable and the same ought to be set
aside. Mr. Verma further submitted that the learned executing
court did not consider the pertinent and relevant questions of
law, propriety and equity arising in this case in the factual
background. The case relates to protection and saving of the
interest of the plaintiff as well as defendants qua the transfer of
the lands in favour of the third parties and the interest of the
third parties has been sacrificed and negated by the learned
executing court by passing the impugned order. Mr. Verma
further submitted that the learned executing court lost sight of
the relevant and overriding nature of order dated 18 th of May,
1984 passed in Second Appeal No. 63 of 1976 as the same
cannot be construed to mean that only those transferee would be
protected till the date of passing of the order. It was the order of
general effect that any property already sold to a third party by
either the plaintiff or the defendants was to be retained in the
share of his transferors. The said order was in legal force even
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
on the date of rejection of the petition of the petitioners. Further,
the learned executing did not take into consideration subsequent
order dated 22.04.1985 passed in S.A. No. 63 of 1976 wherein it
was directed that the allotments of latter group of plot to the
plaintiff/respondents was justified for the reason that they have
sold the substantial portions of the suit land and the lands
transferred by them have to be allotted to them. It was further
ordered that once the plots have been allotted to them, the
appellants would become entitled to allotment to the extent of
their shares over the lands available in the joint stock. Mr.
Verma reiterated the contention taken by the learned counsel for
the petitioner that the respondent no. 1 executed sale deeds in
favour of certain vendees on 04.03.2020, 07.08.2020,
08.12.2020 and 04.07.2021 with respect to the suit property
covered under Plot No. 636 (new), which has been carved out
from Plot No. 481(old) and Plot No. 668 (old). Three plots 636,
637 and 638 emerged out of old Plot No. 481 and 668. Now,
plot no. 481(old) and plot no. 668 (old) were allotted to the
share of mother of respondent no. 1 and notwithstanding
preparation of final decree and allotment of share in favour of
mother of respondent no.1, he chose to alienate and execute sale
deeds relating to plot no. 636(new) which stands carved out of
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
old Plot Nos. 481 and 668. Mr. Verma further submitted that the
vendees/transferees of both co-sharers, respondent nos. 1 and 2
have come into possession over the subject land and this shows
the parties have been transferred the land of their co-sharer
without any reservation. Mr. Verma further submitted that the
learned Pleader Commissioner did not comply the directions of
this Court passed in Second Appeal No. 63 of 1976 under its
order dated 22.04.1985 as the Pleader Commissioner did not
embark upon dividing plot nos. 1, 24, 51, 54 and 56 in equal
measure between the parties from South to North protecting the
vital property interest of both the parties. Only Plot No. 26 has
been divided between the parties. Plot Nos. 54, 56 and 24 in its
entirety were allotted to the share of respondent no.1 whereas
plot nos. 1 and 51 were allotted to the share of respondent no.2
herein. Thus, Mr. Verma submitted that there is complete non
compliance of order dated 22.04.1985 passed by this Court in
Second Appeal No. 63 of 1976 to the extent of exclusion of Plot
Nos. 1, 24, 51, 54 and 56 from south to north afresh, causing
serious prejudice to the vital interest of respondent no.2 and the
learned Sub Judge-I, East Muzaffarpur has lost sight of the
objection of the plaintiff/respondent no.2 herein and affirmed
the report of learned Advocate Commissioner dated 03.09.1996
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
order dated 29.04.1999/01.05.1999 rejecting the objection of the
plaintiff/respondent no. 2 in respect of said report. This fact has
also not been taken into consideration by the learned executing
court while passing the order dated 16.08.2018 in Execution
Case No. 01 of 2007. Thus, Mr. Verma submitted that the order
of the learned executing court could not be sustained and the
same be set aside.
10. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. It would
be advantageous to quote the relevant legal provisions, which
are Sections 41 and 52 of the Transfer of Property Act and Order
21 Rule 97 to 106 of the Code. Sections 41 and 52 of the
Transfer of Property Act reads as under:
"41. Transfer by ostensible owner.--Where,
with the consent, express or implied, of the
persons interested in immoveable property, a
person is the ostensible owner of such property
and transfers the same for consideration, the
transfer shall not be violable on the ground that
the transferor was not authorised to make it:
Provided that the transferee, after taking
reasonable care to ascertain that the transferor
had power to make the transfer, has acted in
good faith.
52. Transfer of property pending suit relating
thereto.--During the [pendency] in any Court
having authority [within the limits of India
excluding the State of Jammu and Kashmir] or
established beyond such limits] by [the Central
Government ***], of [any] suit or proceeding
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
[which is not collusive and] in. which any right
to immoveable property is directly and
specifically in question, the property cannot be
transferred or otherwise dealt with by any party
to the suit or proceeding so as to affect the
rights of any other party thereto under any
decree or order which may be made therein,
except under the authority of the Court and on
such terms as it may impose.
[Explanation.--For the purposes of this
section, the pendency of a suit or proceeding
shall be deemed to commence from the date of
the presentation of the plaint or the institution
of the proceeding in a Court of competent
jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final
decree or order and complete satisfaction or
discharge of such decree or order, has been
obtained, or has become unobtainable by
reason of the expiration of any period of
limitation prescribed for the execution thereof
by any law for the time being in force.]"
Order 21 Rules 97 to 106 of the Code reads as under:
"97. Resistance or obstruction to possession of
immovable property.--(1) Where the holder of
a decree for the possession of immovable
property or the purchaser of any such property
sold in execution of a decree is resisted or
obstructed by any person in obtaining
possession of the property, he may make an
application to the Court complaining of such
resistance or obstruction.
(2) Where any application is made under sub-
rule (1), the Court shall proceed to adjudicate
upon the application in accordance with the
provisions herein contained.
98. Orders after adjudication.--(1) Upon the
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
determination of the questions referred to in
rule 101, the Court shall, in accordance with
such determination and subject to the
provisions of sub-rule (2),--
(a) make an order allowing the application
and directing that the applicant be put into
the possession of the property or dismissing
the application; or
(b) pass such other order as, in the
circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court
is satisfied that the resistance or obstruction
was occasioned without any just cause by the
judgment-debtor or by some other person at his
instigation or on his behalf, or by any
transferee, where such transfer was made
during the pendency of the suit or execution
proceeding, it shall direct that the applicant be
put into possession of the property, and where
the applicant is still resisted or obstructed in
obtaining possession, the Court may also, at
the instance of the applicant, order the
judgment-debtor, or any person acting at his
instigation or on his behalf, to be detained in
the civil prison for a term which may extend to
thirty days.
99. Dispossession by decree-holder or
purchaser.--(1) Where any person other than
the judgment debtor is dispossessed of
immovable property by the holder of a decree
for the possession of such property or, where
such property has been sold in execution of a
decree, by the purchaser thereof, he may make
an application to the Court complaining of
such dispossession.
(2) Where any such application is made, the
Court shall proceed to adjudicate upon the
application in accordance with the provisions
herein contained.
100. Order to be passed upon application
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
complaining of dispossession.--Upon the
determination of the questions referred to in
rule 101, the Court shall, in accordance with
such determination,--
(a) make an order allowing the application
and directing that the applicant be put into
the possession of the property or dismissing
the application; or
(b) pass such other order as, in the
circumstances of the case, it may deem fit.
101. Question to be determined.--All
questions (including questions relating to
right, title or interest in the property) arising
between the parties to a proceeding on an
application under rule 97 or rule 99 or their
representatives, and relevant to the
adjudication of the application, shall be
determined by the Court dealing with the
application and not by a separate suit and for
this purpose, the Court shall, notwithstanding
anything to the contrary contained in any
other law for the time being in force, be
deemed to have jurisdiction to decide such
questions.
102. Rules not applicable to transferee
pendente lite.--Nothing in rules 98 and 100
shall apply to resistance or obstruction in
execution of a decree for the possession of
immovable property by a person to whom the
judgement-debtor has transferred the
property after the institution of the suit in
which the decree was passed or to the
dispossession of any such person.
Explanation.--In this rule, "transfer"
includes a transfer by operation of law.
103. Orders to be treated as decrees.--Where
any application has been adjudicated upon
under rule 98 or rule 100, the order made
thereon shall have the same force and be
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
subject to the same conditions as to an appeal
or otherwise as if it were a decree.
104. Orders under rule 101 or rule 103 to be
subject to the result or pending suit.--Every
order made under rule 101 or rule 103 shall
subject to the result of any suit that may be
pending on the date of commencement of the
proceeding in which such order, is made if in
such suit the party against whom the order
under rule 101 or rule 103 is made has
sought to establish a right which he claims to
the present possession of the property.
105. Hearing of application.--(1) The Court,
before which an application under any of the
foregoing rules of this Order is pending, may
fix a day for the hearing of the application.
(2) Where on the day fixed or on any other
day to which the hearing may be adjourned
the applicant does not appear when the case
is called on for hearing, the Court may make
an order that the application be dismissed.
(3) Where the applicant appears and the
opposite party to whom the notice has been
issued by the Court does not appear, the
Court may hear the application ex parte and
pass such order as it thinks fit.
Explanation.--An application referred to in
sub-rule (1) includes a claim or objection
made under rule 58.
106. Setting aside orders passed ex parte, etc.
--(1) The applicant, against whom an order is
made under sub-rule (2) rule 105 or the
opposite party against whom an order is
passed ex parte under sub-rule (3) of that rule
or under sub-rule (1) of rule 23, may apply to
the Court to set aside the order, and if he
satisfies the Court that there was sufficient
cause for his non-appearance whom the
application was called on for hearing, the
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Court shall set aside the order or such terms
as to costs or otherwise as it thinks fit, and
shall appoint a day for the further hearing of
the application.
(2) No order shall be made on an application
under sub-rule (1) unless notice of the
application has been served on the other
party.
(3) An application under sub-rule (1) shall be
made within thirty days from the date of the
order, or where, in the case of an ex parte
order, the notice was not duly served, within
thirty days from the date when applicant had
knowledge of the order."
11. Now, plain reading of Section 41 of the Act makes
it clear that the claim of the petitioners being transferees of
ostensible owner is completely misplaced in the given facts and
circumstances. It is not the case of the decree-holder or for that
matter of any of the parties that the transfer of property in
favour of the petitioner is void for the reason that transferor had
got no power. The claim of the petitioners has been assailed on
the ground that they purchased the property while the litigation
has been pending and thus, it is hit by Section 52 of the Act.
Therefore, all the decisions cited by the learned counsel for the
petitioners regarding claim of purchasers from ostensible owner
are misplaced. The orders of this Court passed in Second Appeal
No. 63 of 1976 would not come to the help of the petitioners as
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
the orders protected the transferees who were in existence on the
date of passing of the orders and not the subsequent transferees
as claimed by the learned counsel for the respondent no.2. This
fact becomes clear by the subsequent events. In Second Appeal,
the partition effected between the parties has not been interfered
with. This Court rather observed that interest of both the parties
would be satisfied by maintaining the pattibandi in the report of
the Pleader Commissioner submitted before learned District
Judge, Muzaffarpur with the modification that a fresh division
of plot nos. 1, 24, 26, 54 and 56 was to be made from South to
North maintaining the area and compactness allotted to the
parties, respectively. Therefore, the share of the parties and its
demarcation had already been fixed with passing of final decree
in the second appeal, which was only a modified decree of the
first appellate court with fresh division of plot nos. 1, 24, 26, 54
and 56 to be made from South to North. This fact is important as
the parties have all along been knowing about their respective
shares and despite knowing this fact, respondent no. 2 kept on
alienating the property falling in share of the respondent no. 1
with impunity. It is pertinent to mention here that the final
orders in second appeal were passed on 22.04.1985. So,
respondent no. 2 cannot take plea that shares of the parties were
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
not fixed when the judgment of this Court in second appeal
made it very much clear that the pattibandi report of Pleader
Commissioner would be maintained except for fresh division of
plot nos. 1, 24, 26, 54 and 56 to be made from South to North
maintaining the area and compactness allotted to the parties,
respectively. It is also pertinent to mention here that earlier
pattibandi in dividing the plot nos. 1, 24, 26, 54 and 56 was
from East to West and equal area of that partition was to be
allotted to the parties while making the division from South to
North. Thus, it appears that it is the act of respondent no. 2,
which has put the petitioners in a pitiable condition. For the
aforesaid reason, neither respondent no. 2 nor the petitioners
could claim that the land sold by respondent no. 2 in favour of
the petitioners be allotted in the share of respondent no.2.
12. I also do not find any merit in the submission of
learned counsel for the petitioners about the petitioners not
getting proper opportunity of hearing under Order 21 Rule 97 of
the Code, as Rules 97 to 101 of Order 21 of the Code are not at
all applicable to the transferee pendente lite. For this reason, the
reliance placed on Bangalore Development Authority (supra) is
not relevant to the facts and circumstances of the present case.
Therefore, the petitioners being the transferees pendente lite has
Patna High Court C.Misc. No.1638 of 2018 dt. 07-01-2025
no right to resist or object the execution proceeding. Once it is
admitted that objector to the execution proceeding is a
transferee pendente lite, it is not necessary to determine the
question raised by the objector that he was unaware of the
litigation when he purchased the property.
13. I also find merit in submission of Mr. Chaubey
that the scope and jurisdiction of this Court under Article 227 of
the Constitution of India is limited and is to be exercised
sparingly and could not be used to correct all errors of the court
or tribunal acting within the limits of its jurisdiction. In the
instant case, there does not appear to be any error of jurisdiction
in the impugned order passed by the learned Sub Judge. It is a
well discussed and reasoned order and each contention of the
petitioners have been recorded and negated by the learned
executing court. Unless, there is any infirmity or excess or want
of jurisdiction, there is no occasion for this Court to intervene in
such orders to give credence to saying that the Court has been
acting like 'a bull in a china shop'.
14. In the light of discussion made here-in-before, I do
not find any error of jurisdiction in the impugned order dated
16.08.2018 passed by the learned Sub Judge-I, East Muzaffarpur
in Execution Case No. 01 of 2007 and therefore, the impugned
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order does not suffer from any infirmity and hence, the same is
hereby affirmed.
15. As a result, the present civil miscellaneous
petition stands dismissed.
16. However, it is made clear that the petitioners can
always have recourse of law for their claim against their vendor.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR
CAV DATE 10.12.2024
Uploading Date 08.01.2025
Transmission Date NA
