Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 209 (JHR)

Jay Kumar Sah v. Anil Prasad Keshri

2007-03-28

M.Y.EQBAL

body2007
Order Heard the counsel for the parties. 2. This application by the petitioner judgment debtor is directed against the order dated 29.8.2006 passed by Sub-Judge III, Deoghar in Execution Case No.1/2002 whereby he has dismissed the petition filed by the petitioner for dropping the execution proceeding. 3. The facts of the case lie in a narrow compass: The plaintiff-decree holder filed a suit being No. 21/99 for eviction against the petitioner on the ground of personal necessity. The suit was decreed. Against the judgment and decree passed in the eviction suit, the petitioner preferred civil revision before this court being Civil Revision No. 380/2001. The said civil revision was heard and finally dismissed on 17.5.2002 and the judgment and decree of the trial court was affirmed. The plaintiff-decree holder, thereafter, filed execution case no.1/2002 for executing the decree. The execution case remain pending for several years. Before the decree was executed, the decree holder transferred the suit premises alongwith the decree in favour of the respondent by virtue of a registered deed of sale dated 19.9.2003. The transferee, thereafter, filed an application under Order XXI Rule 16 C.P.C. for impleading the decree holder and seeking relief to prosecute the execution case. The said application was allowed by the executing court in terms of order dated 23.1.2006. The petitioner thereafter, challenged the said order by filing civil revision no. 31/2006 before this Court. The civil revision was finally dismissed on 15.5.2006 holding that no error was committed by the executing court in allowing the transferee to execute the decree. It was only thereafter, the petitioner filed application on 21.8.2006 under section 151 CPC questioning maintainability of the execution proceeding on the ground that the decree for eviction obtained by the landlord on the ground of personal necessity in respect of the suit property could not have been transferred. The said petition was dismissed by the executing court. The petitioner, thereafter, filed a review petition which too was dismissed. Hence this application. 4. Learned counsel appearing for the petitioner assailed the impugned order on- the ground that in view of Section 17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, the decree for eviction on the ground of personal necessity could not have been executed by the transferee of the decree. Hence this application. 4. Learned counsel appearing for the petitioner assailed the impugned order on- the ground that in view of Section 17 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, the decree for eviction on the ground of personal necessity could not have been executed by the transferee of the decree. Learned counsel submitted that in the facts and circumstances of the case, the petitioner is entitled to get restoration of possession of the suit premises. 5. On the other hand learned counsel appearing for the transferee-decree holder submitted that the petition by which the respondent decree holder was allowed to execute the decree, was challenged by the petitioner by filing Civil Revision No. 31/2006 and the said revision application was dismissed. Thereafter, on 13.9.2006 writ of delivery of possession was issued and the possession of the suit premises has been given to the decree holder after evicting the petitioner there from. It was only, thereafter, the instant application has been filed. According to the learned counsel after the order was passed in Civil Revision No. 31/2006, the instant application is not maintainable. 6. As noticed above, the decree was passed in 2002 which was affirmed by this Court in the Civil Revision filed by the petitioner. The Execution case remain pending for more than a year and -it was in September 2003, the suit property alongwith the decree was transferred by the decree holder in favour of the transferee-decree holder. The transferee thereafter, filed an application under Order XXI Rule 16 CPC which was contested by the petitioner on the ground that the decree holder has no right to transfer the said property and the transferee cannot be substituted in his place. The said application was allowed and against that order the petitioner preferred Civil Revision No. 31/2006 which was dismissed by a Bench of this Court holding that the executing court rightly allowed the transferee to be substituted. Admittedly, the petitioner did not challenge the said order passed by this Court in Civil Revision No. 31/2006. 7. Having regard to the aforesaid facts and also considering the fact that delivery of possession has already been effected, I am of the view that at this stage, it cannot be held that the execution proceeding is not maintainable. 8. For the aforesaid reasons, I do not find any merit in this writ application, which is, accordingly, dismissed.