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2009 DIGILAW 934 (ORI)

Sanjukta Sahu v. Sailabala Mishra

2009-12-08

A.S.NAIDU

body2009
JUDGMENT A.S. NAIDU, J. — In this Review Petition, the petition¬er who was petitioner in W.P.(C) No.11060 of 2008 seeks to review the judgment dated 02.12.2008 passed in the said Writ Petition mainly on the ground that the point of law as enunciated in the decisions reported in AIR 1997 SC 856 and (V-93) 2002 CLT 80 could not brought to the notice of this Court in course of hear¬ing of the Writ Petition. 2. Admittedly the petitioner filed W.P.(C) No.11060 of 2008 with a prayer to quash the order dated 25.7.2008 passed by the learned Civil Judge (Senior Division), Talcher in Execution Case No.2 of 2002. In the said execution case the judgment and decree passed in T.S. No.9 of 1979/2 of 1982 of the Court of the then Subordinate Judge, Talcher which was upheld in T.A. No.1 of 1995 by the learned District Judge, Dhenkanal and was con¬formed by this Court in Second Appeal No.23 of 1989 was sought to be executed. 3. In course of execution of the said decree a petition was filed by the decree-holder for issuance of a Writ for effect¬ing delivery of possession of the suit property in his favour. The Amin Commissioner went to the spot, inspected the property and thereafter submitted a report before the Executing Court mentioning that the shop rooms situated over the suit property were locked and as there was no direction to give delivery of possession by breaking open the locks, he could not effect deliv¬ery of possession to the decree-holder. On the aforesaid eventu¬ality a petition was filed by the decree-holder to issue a direc¬tion to the Amin Commissioner to break open the locks and deliver possession of the suit property by evicting the occupants there-from and also for rendering necessary police help. 4. The executing Court after hearing learned counsel for the parties, issued direction to the Amin Commissioner to effect delivery of possession of the suit property by breaking open the locks with the aid of police. It further appears that the peti¬tioner, who is a stranger to the litigation filed a petition under Section 47 read with Order 41, Rule 16 of C.P.C. resisting the execution and prayed that without disposing of the said peti¬tion the executing Court should not issue a Writ of delivery of possession. The executing Court, however, by the impugned order rejected the said petition. The executing Court, however, by the impugned order rejected the said petition. The said order was assailed before this Court in the aforesaid Writ Petition. 5. In spite of notice, except opposite party No.16 no other opposite party appeared before this Court. Opposite party No. 16 also contested the case in person. After hearing learned counsel for the parties this Court dismissed the Writ Petition on the ground that the petitioner being a lis pendens purchaser at her instance the execution cannot be stalled. The said order is sought to be reviewed in this Review Petition. 6. Way back in the year 1964 in the case of M/s. Thungab¬hadra Industries Ltd. v. Government of Andhra Pradesh reported in AIR 1964 SC 1372 the Supreme Court observed as follows : “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law, which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” The first and foremost requirement of entertaining a Review Petition is that a Court has to be satisfied that the order sought to be reviewed (i) suffers from any error apparent on the face of record, (ii) permitting the order to stand will lead to failure of justice (See Rajendra Kumar and others v. Rambhai and others reported in AIR 2003 SC 209 ). 7. Mr. Mukherji, learned Senior Advocate appearing for the review petitioner relying upon the decision reported in AIR 1997 SC 856 submitted that a stranger has also a right to resist a delivery of possession in an execution case till the petition filed by him/her under Order 21, Rule 99 of C.P.C. is disposed of by the executing Court. He further submitted that the said fact was not brought to the notice of this Court while disposing of the aforesaid Writ Petition and as such the order requires review or reconsideration. 8. He further submitted that the said fact was not brought to the notice of this Court while disposing of the aforesaid Writ Petition and as such the order requires review or reconsideration. 8. Notice was issued to all the opposite parties both through registered pots and process server but then except oppo¬site party No.16 who is appearing in person, notice issued to others returned un-served with remarks that they are not avail¬able. Thereafter to avoid controversy this Court directed the petitioner to publish a notice in the daily Oriya newspaper ‘The Samaj’. Accordingly, notice was published in the daily Oriya newspaper ‘The Samaj’ on 31.10.2009. In spite of such notice none of the opposite parties have appeared. 9. Heard Mr. Mukherji, learned Senior Advocate for the petitioner and opposite party No.16 in person. According to oppo¬site party No.16 as the ingredients of Order 41, Rule 1 of C.P.C. are not satisfied the review petition has to be dismissed. Fact remains, the petitioner is a stranger to the litigation. She was neither a party in the suit nor a party before the appellate authority. She claims to be lis pendens purchaser and resists delivery of possession on the ground that she possesses the dis¬puted lands. Law is well settled that a petition by such a person under Section 47 read with Order 41, Rule 16 of C.P.C. is not maintainable but then as has been held by the decision referred to supra it is open to him/her to file a petition under Order 21, Rule 99 of C.P.C. before the executing Court prior to actual dispossession. That being the position of law, the trial Court has rightly rejected the petition filed by the petitioner under Section 47 read with Order 41, Rule 16 of C.P.C. 10. Mr. Mukherji on the other submitted that nomenclature of a petition is not very much material and if a Court possesses the power it can entertain the petition wrongly labelled and exer¬cise such power. There is no quarrel with regard to the aforesaid legal proposition but then in the case at hand the litigation is continuing for the last so many years. The execution case is also at the fag end and only Writ of delivery of possession has to be issued. Under such circumstances. There is no quarrel with regard to the aforesaid legal proposition but then in the case at hand the litigation is continuing for the last so many years. The execution case is also at the fag end and only Writ of delivery of possession has to be issued. Under such circumstances. In the absence of any petition under Order 21, Rule 99 of C.P.C. the executing Court rightly issued a Writ for effecting delivery of possession. Thus, this Court is satisfied that the order impugned in the Writ Petition does not suffer from any infirmity or illegality and requires no interference. 11. However, in view of clear provision of law as enunciat¬ed above, if the petitioner claims to have acquired title in the mean while and is in possession of the property, it will be open to her to file a petition under Order 21, Rule 99 C.P.C. high¬lighting all her grievances before the executing Court within a period of four weeks hence. If such a petition is filed the said Court shall do well to dispose of the same before issuing Writ of delivery of possession. With the aforesaid observation the Review Petition is dis¬posed of. Petition disposed of.