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Patna High Court · body

1998 DIGILAW 654 (PAT)

Rameshwar Pandey v. Malti Devi

1998-09-10

M.Y.EQBAL

body1998
Order These two civil revision applications arose out of orders dated 22.5.98 and 26.6.98 passed by Munsif, Patna in Execution case no. 19/89 by which prayer of the petitioner for stay of the delivery of possession of the suit property in execution of the decree has been rejected. 2. The facts of the case in nut shell, are that the plaintiff-opposite party. Smt. Malti Devi, filed Eviction suit no. 50/79 against the deceased father of the petitioner for a decree of eviction in respect of house property situated in the district of Patna. The plaintiff's case was that she purchased the aforesaid property from one Brahmdeo Pandey by virtue of sale deed dated 20.6.70 and inducted the father of the petitioner as tenant. Since the tenant defaulted in payment of rent, she instituted the suit for eviction. The eviction suit was decreed by the trial court and against the said judgment and. decree the petitioners father filed Appeal no. 114/89 which too was dismissed. The deceased father of the petitioner then filed Second Appeal no. 64/93 which too was dismissed by this court. However, it is alleged that during the pendency of eviction suit Kundan Pandey executed a deed of gift in favour of Rameshwar Pandey petitioner on 11.5.85. The plaintiff then filed title suit for declaration that the deed of gift dated 11.5.85 executed in favour of the petitioner is forged and fabricated document. The said suit was eventually dismissed, and against the judgment of that suit, plaintiff-opposite party preferred appeal which is pending. However, in view of the subsequent development, the petitioner filed an application before the Executing court in the aforementioned Execution case no. 19/89 and prayed for stay of delivery of possession till the disposal of the Misc. case no. 7/98 which was filed by the petitioner under Section 47 CPC, challenging the execution, discharge and satisfaction of the decree. The said petition was rejected by the court below in terms of the order dated 22.5.98. This order is subject matter of C.R. no. 1248/98- Petitioner then filed another application seeking similar relief for stay of the delivery of possession of the suit property in execution of the decree in Execution case no. 19/89 which too was rejected by order dated 26.6.98 which is subject matter of C.R no. 1310/98. 3. I have heard Mrs. Sheema Ali Khan, learned counsel for the petitioner and Mr. 19/89 which too was rejected by order dated 26.6.98 which is subject matter of C.R no. 1310/98. 3. I have heard Mrs. Sheema Ali Khan, learned counsel for the petitioner and Mr. L.N. Das, learned counsel for the opposite party and also perused the impugned orders passed by the court below. 4. It is not disputed that in the eviction suit filed by opposite party, defendant-petitioner did not dispute the relationship of Landlord and tenant and the trial court after considering the evidence and after hearing the parties decreed the eviction suit. The petitioner challenged the judgment and decree in appeal but the appeal was dismissed. The petitioner then moved this court in Second appeal which too was dismissed. The decree was then not in execution. However, during the pendency of the suit, suit property was alleged to have been transferred in favour of the petitioner. In order to avoid the said deed of transfer, opposite party brought a separate suit seeking declaration that the transfer deed is forged, fraudulent and void. That suit was dismissed but the appeal filed by the opposite party is pending. The petitioner, in the meantime, filed objection under Section 47 CPC which was registered as Misc. case no. 7/98. The petitioner, therefore, filed an application for stay of the delivery of possession till the disposal of Misc. case no. 7/98. The court below after considering the entire facts of the case, came to the conclusion that merely because a Misc. case was filed it was not fit case for stay of the delivery of possession. I do not find any cognent reason to differ with the orders passed by the court below. 5. As stated above, opposite party obtained a decree of eviction in a suit which was tiled in the year 1979 and the decree passed in that suit was affirmed upto this court in Second appeal. In this way although about 20 years have passed but the opposite party could not get possession of the suit premises. Merely because, an instrument of transfer of the suit property was executed in favour of the petitioner, the execution of the decree cannot be stayed. The learned court below, therefore, in my opinion, has not committed any error of law in exercise of jurisdiction. 6. I am, therefore, not inclined to interfere with these orders passed by the court below. 7. The learned court below, therefore, in my opinion, has not committed any error of law in exercise of jurisdiction. 6. I am, therefore, not inclined to interfere with these orders passed by the court below. 7. In the result, there is no merit in these two civil revision applications which are accordingly dismissed.