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1996 DIGILAW 89 (PAT)

Saroj Kumar Shukla v. State Of Bihar

1996-02-08

GURUSHARAN SHARMA

body1996
Judgment Gurusharan Sharma, J. 1. The petitioner filed Eviction Suit No. 4 of 1992 against the opposite parties No. 1 to 3 eviction under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act) which was decreed on 18.2.1993. Thereafter, the petitioner levied Execution Case No. 4 of 1994 for execution of the said decree, which is pending disposal in the court of the Second Additional Munsif, Hazaribagh. 2. In the meantime, the opposite parties No. 4 and 5 filed Title Suit No. 4 of 1994 in the court of the Subordinate Judge, Hazaribagh, against the petitioner, with respect to the same property which was the subject matter of Eviction Suit No. 4 1992, for declaration of title as well as declaration of the two sale does dated 28.12.1973 and 19.4.1985 executed in favour of the petitioner relating to the property in question and for setting aside the decree dated 18.12.1993 passed in favour of the petitioner in the said Eviction Suit No. 4 of 1992. Besides this, the opposite parties 4 and 5 also claimed relief of permanent injunction restraining the petitioner from receiving payment of rent from the tenant and from making construction in the suit premises. 3. A separate petition under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure was filed in the said suit for grant of temporary injunction restraining the petitioner from receiving rent from the tenant and from making construction in the suit premises and further for restraining the tenant from making payment of arrears of rent as well as monthly rent to the petitioner. By order dated 10.5.1994, the injunction petition was disposed of and the tenant was restrained from making payment of arrears of rent as well as monthly rent to the petitioner and the petitioner was restrained from receiving payment of rent from the tenant. However, in the said order, the learned Subordinate Judge observed that if the aforesaid eviction decree is allowed to be executed, it would certainly cause unnecessary harassment. 4. It is relevant to state that the opposite parties 4 and 5 were neither parties to the Eviction Suit nor to the Execution Proceeding aforesaid. On 24.3.1994, the opposite parties 4 and 5 filed a petition purported to be under Sec. 151 of the Code. 4. It is relevant to state that the opposite parties 4 and 5 were neither parties to the Eviction Suit nor to the Execution Proceeding aforesaid. On 24.3.1994, the opposite parties 4 and 5 filed a petition purported to be under Sec. 151 of the Code. In the said petition prayer was made to stay proceedings till the disposal of Title Suit No. 40 of 1994. By impugned order dated 30.5.1994, the Second Additional Munsif, Hazaribagh, has been pleased to allow the prayer and stayed the execution proceeding till disposal of the suit. The decree holder-petitioner has challenged the said order in this Civil Revision application. 5. Mr. N.K. Prasad, senior counsel for the petitioner submitted that the opposite parties No. 4 and 5 admittedly being a third party and stranger to the decree under execution had no locus stand to make an application under Section 151 of the Code and prayer for stay of the execution proceeding till disposal of the suit filed by them against the decree holder. Since they were not judgment debtors in the eviction decree, they had no locus standi even to make an application under order XXI, Rule 29 of the Code. The impugned order is, therefore, without jurisdiction and is fit to be set aside. 6. On the other hand, Mr. Debi Prasad, senior counsel for the opposite parties 4 and 5 submitted that since they claimed interest in the property, which was the subject matter of the execution proceeding, although they were not parties to the suit, the decree whereof was under execution, a petition under Sec. 151 of the Code was maintainable at their instance and the executing court in its inherent powers was justified in staying the proceedings till disposal of the suit filed by them against the decree holder. 7. Admittedly, the opposite parties 4 and 5 were no parties to the Eviction Suit and consequently they were not judgment debtors against whom the Execution Proceeding was pending. They claimed certain interest in the house property, which was the subject matter of the eviction suit and fro that they have already filed a suit. The execution case has been levied for delivery of possession of the said property in favour of the decree holder, who is the defendant in the suit filed by the opposite parties 4 and 5, after evicting the tenant-judgment debtor. The execution case has been levied for delivery of possession of the said property in favour of the decree holder, who is the defendant in the suit filed by the opposite parties 4 and 5, after evicting the tenant-judgment debtor. In the circumstances, in my opinion, the opposite parties 4 and 5 had no locus standi for making an application under Sec. 151 of the Code and pray for stay of the proceedings in the said Execution case. The opposite parties No. 4 and 5 being third party strangers to the decree in question for possession of immovable property may put resistance/obstruction at the time of the execution of the writ of delivery of possession, but an application under Sec. 151 by them at this stage to stay the execution proceeding till disposal of their title suit was premature and not entertainable by the executing court. 8. It is well settled that an application by a third party moving the executing court under Sec. 151 of the Code to adjudicate on his claim of title or possession over the disputed property before any allegation of resistance or obstruction by the third party have been made by the decree holder under Order XXI, Rule 97 of the Code is premature and the executing court has no jurisdiction to entertain the same. 9. It appears that in their suit, the opposite parties No. 4 and 5 filed an application for grant of injunction against the petitioner as well as opposite parties No. 1 to 3 herein and the trial court passed orders restraining them regarding payment of rent. Likewise, they could have made a prayer to restrain the petitioner to proceed with execution of the eviction decree and the trial court would have passed appropriate orders on its own merits in accordance with law, but they have certainly no locus standi to file an application under Sec. 151 of the Code in the executing proceeding. 10. Mr. Debi Prasad placed reliance on a decision of the Supreme Court in Padam Sen and Anr. V/s. the State of Uttar Pradesh -- . Wherein it was observed that the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. The court is free to exercise them for the purposes mentioned in Sec. 151 of the Code. V/s. the State of Uttar Pradesh -- . Wherein it was observed that the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. The court is free to exercise them for the purposes mentioned in Sec. 151 of the Code. When the exercise of those powers is not any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. It is also well recognised that the inherent powers is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided to the Code. So far as the present matter is concerned, the Code provides remedy for a third party stranger to a decree under execution relating to an immovable property under Order XXI, Rule 97 and such exercise of inherent powers by the executing court in the instant case at the present stage is directly in conflict with and contrary to the procedure expressly provided in the Code and is also against the intentions of the Legislature. 11. Under Order XXI, Rule 29 of the Code, the execution by decree holder of the pending suit between decree holder and judgment debtor can be stayed until the pending suit has been, decided. Here the suit pending is not between the decree holder and the judgment debtor, rather between the third patty stranger and the decree holder and as the opposite parties 4 and 5 are not entitled to take recourse to the said provision of the Code. 12. In my opinion, in the facts and circumstances of the case, the learned Additional Munsif has committed an error of jurisdiction in staying the proceeding of the Execution Case under inherent powers at the instance of third party strangers at this stage. The opposite parties 4 and 5 had no locus standi to make a prayer to the executing court to stay the execution till disposal of their suit. 13. In the result, this Civil Revision application is allowed and the impugned order is set aside. However, there will be no order as to costs.