A third party stranger to a decree under execution relating to an immovable property has no locus standi to file an application under Section 151 of the Code of Civil Procedure to stay the execution proceeding till disposal of their suit.

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. 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 in