ORDER

Heard Mr. Kamal Nayan Chaubey, learned senior counsel for the petitioner.

2. Petitioner has filed the present application for setting aside the order dated 11.11.2019/13.11.2019 passed in Execution Case No. 01/2011 arising out of Eviction Suit No. 18/2003 by learned Munsif, Sadar, Purnea whereby the court below has rejected the petition dated 24.09.2019 filed by the petitioner under Order 21 Rule 97 to 101 of the CPC.

3. The brief fact involved in this case is that the petitioner is the judgment debtor in a decree for eviction passed in Eviction Suit No. 18/2003 filed by the plaintiffs/respondents who are sons and widow of late Ram Prasad Sah. The property/land under decree is situated in M.S. Khata No. 128, M.S. Plot No. 18 which belongs to all the heirs of Late Ram Prasad Sah in which sons of Late Ram Prasad Sah, widow of Ram Prasad Sah, heirs of deceased son of Ram Prasad Sah and daughters of Ram Prasad Sah have got equal interest.

4. Learned senior counsel for the petitioner submits that despite the fact that only sons and widow of Late Ram Prasad Sah got decree in Eviction Suit No. 18/2003, the ownership and interest of daughters of Ram Prasad Sah also exists in the subject matter of decree under execution.

5. During pendency of execution case, the two daughters of late Ram Prasad Sah executed and transferred their shares in the land in favour of the petitioner/judgment debtor by way of registered sale deed and declared that possession pursuant thereto has also been given to the petitioner. The petitioner judgment debtor has already instituted title suit for partition of land and property acquired through registered sale deed dated 17.08.2019 in the land under execution. In the said background, the petitioner filed a petition for instituting Misc. Case under Order 21 Rule 97 to 101 of the CPC with a further prayer to stay the execution case till the bifurcation of land and property described in Schedule-A of the petition.

6. Learned senior counsel for the petitioner submits that by the impugned order, the learned executing court has dismissed the aforesaid application filed under Order 21 Rule 97 to 101 CPC on erroneous ground that the purchase made by the petitioner by way of sale deed dated 17.08.2019, during pendency of execution proceeding, is hit by Section 52 of the Transfer of Property Act without appreciating that the petitioner acquired independent right, title, interest and possession by virtue of sale deed executed by co-sharers admittedly having right, title and interest in the property under execution. He further submits that the petitioner is already in possession of the property and unless his rights/share are appropriately ascertained, the petitioner cannot be deprived of the possession.

7. In support of his arguments, learned counsel relies upon the judgments passed in the case of N.S.S. Narayana Sarma & Ors. Vs. Goldstone Export (P) Ltd & Ors reported in 2007(2) PLJR 201 (SC) and in the case of Silverline Forum Pvt. Ltd Vs. Rajiv Trust & Anr reported in (1998) 3 SCC 723.

8. I have heard learned senior counsel for the petitioner and gone through the material on record along with impugned order. The fact involved in this case is not in dispute that the petitioner is the judgment debtor and during pendency of the execution case, she purchased some portion of the property/land under execution. Accordingly, the petitioner is objecting and resisting the execution of the decree by filing the petition under Order 21 Rule 97.

9. The Hon’ble Supreme Court in a judgment reported in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble & Ors as reported in 2009(4) PLJR (SC)225 has laid down the law that in a given case an undivided share of a coparcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers.

10. In AIR 1953 SC 487