Syed Md.Mahfooz Alam, J.

1. This Miscellaneous Appeal is directed against the order dated 18.1.1996 passed by Subordinate Judge Ist, Siwan in Miscellaneous Case No. 16 of 1975 arising out of Execution Case No. 7 of 1970 whereby he has allowed the review petition filed by respondents Renuka Mitra and others for review of the order dated 9.2.78 dismissing Miscellaneous Case No. 16 of 1975 and set aside the auction sale and delivery of possession in Execution Case No. 7 of 1970 and ordered that half share of the applicants in the suit properties be restituted to them through the process of court.

2. Appellant Rameshwar Prasad Choudhary and others, who were opposite parties in the said Miscellaneous Case has challenged the said order in this appeal.3.The brief facts of the case are as follows:

One Shambhu Prasad filed Mortgage Suit bearing Title (Mortgage) Suit No. 1 of 1962 / 6 of 1964 for redemption of mortgage against Bishwanath Prasad and Bhagwat Prasad. On 31.7.1965 a preliminary decree was passed in the said suit by the Subordinate Judge III, Chapra and by the said decree, the defendants were ordered to pay Rs. 66,655.45 naie paise to the plaintiff and in case of default the plaintiff was given liberty to pray for final decree for sale of mortgaged property. Thereafter the decree-holder Shambhu Prasad filed an application for preparation of final decree as the judgment debtors defaulted in payment of money. After that Shambhu Prasad assigned decree by a registered deed of assignment dated 14.5.1966 in favour of appellant Rameshwar Prasad Choudhary and accordingly, the appellant was made party in final decree and on 22.9.1966 final decree for sale of mortgaged property was passed. Thereafter on 19.5.1970 the decree-holder filed Execution Case No. 7 of 1970 in the court of the Additional Subordinate Judge III, Chapra in which notices under Order 21 Rule 54 of the C.P.C. were issued and the land appertaining to plot Nos. 5154, 5155 and 5158 comprising an area of 1 bigha 14 kathas 19 dhurs was attached. In the meantime, on 15.12.1975 Misc. Case No. 16 of 1975 was filed by Renuka Mitra and others under Sec. 47 of the C.P.C. praying therein to release the abovementioned property and to dismiss the execution case but by order dated 9.2.1978, the learned Sub Judge, Siwan dismissed the miscellaneous case.

3. Against the said order dated 9.7.1978 Civil Revision No. 849 of 1978 was filed before this Court. During the pendency of the civil revision application, auction sale was held and the lands measuring 1 bigha 14 kathas 19 dhurs in plot Nos. 5154, 5155 and 5158 were auction sold and on 30.3.87 sale certificate was issued. Thereafter on 16.6.1978 delivery of possession of the abovementioned lands was given to the decree holder auction purchaser. After auction sale and delivery of possession, Civil Revision No. 849 of 1978 was disposed of and by order dated 18.7.1984 Civil Revision No. 849 of 1978 was allowed and the order dated 9.2.78 dismissing Misc. Case No. 16 of 1975 was set aside. The court further directed the executing court to execute the decree against defendant Nos. 1, 2 and 6 only. Against the said order the appellant preferred S.L.P. No. 2499 of 1985 before the Supreme Court which was dismissed on 21.1.1991. As "stated above, during the pendency of Civil Revision No. 849 of 1978 the property in dispute was auction sold and delivery of possession was given to the decree holder auction purchaser and as such after disposal of S.L.P. No. 2499 of 1985 by the Supreme Court, respondents (defendant Nos. 3 to 5) filed review application in Misc. Case No. 16 of 1975. In the said revision application one Anjana Dubey respondent No. 4 filed an application for granting permission to prosecute the case in the capacity of purchaser of the disputed property from defendant Nos. 3 to 5 which was allowed. Against the said order, Civil Revision No. 273 of 1995 was filed but the same was dismissed on 26.7.1995. Then the learned Sub Ju