Execution of joint decrees remains valid even with subsequent transfers of interest by decree-holders, and a judgment-debtor cannot escape execution by claiming ownership.

JUDGMENT :

Arun Kumar Jha, J.

The matter has been listed on mentioning being made on behalf of the petitioner.

2. Heard learned counsel for the petitioner and I intend to dispose of the petition at the stage of admission itself.

3. The instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 25.11.2023 passed in Eviction Execution Case No. 17 of 1982 by learned Munsif 1st, Darbhanga, whereby and whereunder the petition dated 28.02.2019 filed by judgment-debtor nos. 2 and 4 for dropping the execution proceeding was rejected.

4. Learned counsel for the petitioner submits that Kedarnath Mishra and others had filed Title Suit No. 98 of 1976 before learned Munsif 1st, Darbhanga against the father of the petitioner and another for declaration of title and recovery of possession of suit land as described in Schedule I of the plaint. The suit was decreed in favour of plaintiff and defendant no. 2 was directed to vacate the premises within two months vide judgment and decree dated 26.02.1982 and 15.03.1982, respectively. Thereafter, plaintiff filed Title Execution Case No. 17 of 1982 before learned Munsif 1st, Darbhanga to execute the judgment and decree passed by learned Munsif 1st, Darbhanga. Learned counsel further submits that after passing of the aforesaid judgment and decree, the decree-holder no. 2 namely, Lakshmi Nath Mishra came in possession and sold the land in favour of the petitioner by registered sale deed dated 08.07.2003. So the petitioner came in possession of his purchased land and thereafter, his name was mutated and he started paying rent to the State of Bihar which issued him rent receipts. On 28.02.2019, a petition was filed on behalf of judgment-debtor nos. 2 to 4 for dropping the proceeding in the court of leaned Munsif 1st, Darbhanga in Execution Case No. 17 of 1982 on the ground that decree-holder no. 2 has already sold the land through a registered sale deed in favour of the petitioner and decree has not remain executable. The decree- holder filed rejoinder on 24.04.2019, wherein he has stated that decree-holder had also filed Partition Suit No. 133 of 2008 before the court of learned Sub-Judge 1st, Darbhanga in which the judgment-debtor had also been made party. Vide order dated 25.11.2023 the learned Munsif 1st, Darbhanga rejected the petition dated 28.02.2019 filed by the judgment-debtor nos. 2 to 4 holding that it was not lawful to drop execution proceeding.

5. Learned counsel for the petitioner argues that the learned executing court did not consider that decree was not executable in view of the fact that judgment-debtor has already purchased the land in question from one of the decree-holders and as such there was no necessity to continue the execution proceeding in the eye of law. The learned executing court further committed error in appreciation of the legal principle that if a co-sharer has sold some of the land out of the land in dispute, it shall be carved out in favour of the defendant purchaser out of the share of the co-sharer. Learned counsel further submits that the learned executing court has failed to appreciate the fact that some of the lands in possession of contesting defendant were acquired by his father under the provisions of BIHAR PRIVILEGED PERSONS HOMESTEAD TENANCY ACT (hereinafter the ‘BPPHT Act’). Hence, such land was out of the purview of the plaintiffs-decree holders stand and consequently the execution could not have been initiated to the extent of that portion of land in dispute which was coming in posse