Chaudhary Sia Saran Sinha. J.

This Civil Revision under Section 115 (1) (b) of the Code of Civil Procedure (here In after referred to as 'the Code') is directed against the order dated 16.5.1978 of the Munsif at Ranchi, passed in Misc. Case No. 20 of 1978, by which he dismissed the miscellaneous case for default. The facts, relevant for disposal of this Civil Revision, which are undisputed, are these. on the basis of a deed

of lease dated 25.9.1965, opposite party 1 to 4 of this Civil Revision instituted Title Suit 497 of 1967 against one Md. Shafi (opposite party no.5), the petitioner of this Civil Revision being the full brother of Md Shafi. The suit was for eviction of opposite party no.5 from what was described therein as a vacant piece of land as also for compensation and damages. Md. Shaft contested that suit by filing a written statement. The suit was decreed by judgment dated 31.7.1976 by which Mr. Shafi was directed to give vacant possession of the suit land to opposite party nos. 1 to 4 within 60 days from the passing of the Judgment. Certain amount was also decreed. Md. Shafi carried the matter in appeal and the appeal is still pending.

2. During the pendency of the said appeal preferred by Md. Shafi (opposite party no 5), opposite party nos. l to 4 as decree-holders levied Execution Case No.1 of 1977 with two fold prayers namely, delivery of possession over the land leased out as also for realisation of the decretal amount of Rs.1950/-. The filing of this execution case led Md. Shaft to file a stay petition before the appellate court and the execution proceeding was stayed on the condition that Md. Shafi should deposit Rs.21,000/- within the time stipulated there in. This order did not suit Md. Shafi and he carried the matter in Civil Revision to this Court, it being numbered as Civil Revision 245 of 1977 (R). This Court reduced the amount of Rs.21,000/- to Rs.12,000/- and, as agreed to between the parties, Md. Shafi was further allowed the facility to deposit the sum by instalments. Md. Shaft paid two insalments but, on his failure to pay the further instalments, as ordered, opposite party nos. 1 to 4 again proceeded with the execution proceeding presumably after vacation of the stay order. There was a Civil Revision against the vacation of the stay order as well by Md. Shafi but it remained unsuccessful.

3. On 30.6.1977 Md. Shaft filed a show cause in the execution case praying there in for dismissal of the execution case on the ground that he was running a saw Mill in the land and will be greatly prejudiced if he is evicted there from. This gave rise to Misc. Case No 65 of 1977 but it was dismissed on 10.9.1977 and dell very of possession with the assistance of police was ordered to be issued.

4. It was there after that on 10.5.1978 the petitioner appeared on the scene and filed a petition under order XXI Rule 58 of the Code. It was stated therein that there were two office rooms, three hutments and a machine shed where a Saw Mill was functioning in the firm name M/s Saran Saw mill and that the land in question along with these office rooms, hutments and a machine shed had been taken on rent by the said firm from the decree holders. Although Md. Shafi and the petitioner claimed to be the original partners of this firm but subsequently as alleged therein, Md. Shafi ceased to have any Interest in the same and the petitioner was thus the sole proprietor of the said firm. On these allegations it was asserted that the decree not having been obtained against the petitioner, the entire execution proceedings, although besides the delivery of possession over the land in question it was also levied for realisation of certain amount from Md. Shafi, should be quashed. It may at once be stated that the allegations made in this claim petition was quite inconsistent with the terms of the memorandum of lease (Ext. 10) by which Md. Shafi alone as lessee had taken only the land in question on rent from the opposite party decr