Arun Kumar Jha, J. – The instant civil miscellaneous petition stands directed against the order dated 22.12.2023 passed by learned Munsif, Simri Bakhtiyarpur, Saharsa in Title Execution Case No. 02 of 2001 whereby and whereunder the learned trial court rejected the application of the petitioners filed under Order XXI, Rule 97, 100, 104 and Section 151 of the Code of Civil Procedure (in short “the Code”).

2. Shorn of unnecessary details, facts of the case are that one Sachchidanand Bhagat who was maternal grandfather of the petitioners, filed a Title Eviction Suit No. 30 of 1987 against defendant Atmanand Prasad whose heirs/legal representatives are respondent nos. 2-11 in the present case. The Title Eviction Suit No. 30 of 1987 was decreed on 22.09.1989 and being aggrieved by the said judgment and decree, defendant Atmanand Prasad filed Title Appeal No. 17 of 1989 which was also dismissed vide judgment and order dated 07.04.1999. Second Appeal No. 255 of 1999 filed by Atmanand Prasad also came to be dismissed and SLP (Civil) CC 1358-1359/2008 before the Hon’ble Supreme Court was also dismissed. Thereafter, the present Title Execution Case No. 02 of 2001 has been filed. The petitioners claim that Sachchidanand Bhagat had two wives, Jiya Devi and Sudama Devi. Jiya Devi had two daughters, Urmila and Kaushalya, and the petitioner nos. 1 and 2 are the respective sons of the two daughters. From the 2nd marriage of Sachchidanand Bhagat with Sudama Devi, birth of a son, respondent no. 1, Ratan Kumar Bhagat and a daughter Mangali Devi took place. After death of Sachchidanad Bhagat, decree holder of Title Eviction Suit No. 30 of 1987, respondent 1st party, Ratan Kumar Bhagat filed Execution Case No. 02 of 2001 in which neither the petitioners nor Mangali Devi were made parties. It is also claimed by the petitioners that there had been a partition between the heirs of 1st wife and the 2nd wife of Sachchidanand Bhagat and accordingly the disputed land under Mauza Bakhtiyarpur, Old Khata No. 1, Old Plot No. 1973, New Khata No. 1245, New Plot No. 2252 measuring in area 3 decimal including pucca house and mud built house and area measuring 1.5 decimal from northern side was allocated in share of these petitioners and the petitioners are in possession of the same. The petitioners further claim that the decree holder and judgment debtor, in collusion with each other, have not made the petitioners parties with intention of usurping the right of the petitioners. Thus, the petitioners filed an application dated 27.07.2022 under Order XXI, Rule- 97, 100, 104 read with Section 151 of the Code before the learned Executing Court praying therein that right, title and possession of the petitioners be decided first as by family partition they are in possession over the suit land and they have not been made parties. A rejoinder was filed by the respondent 1st party on 26.08.2022 stating therein that the petitioners have filed the application in order to deny decree holders the fruits of decree. The learned Executing Court vide order dated 22.12.2023 dismissed the application of the petitioners dated 27.07.2022 in limine. The said order is under challenge before this Court.

3. Learned counsel for the petitioners submitted that the impugned order is improper and illegal as any application filed under Order XXI, Rule- 97 of the Code by a person in possession of the decretal property is to be disposed of after registration of miscellaneous case under Rule 459 of the Civil Courts Rules of High Court of Judicature at Patna and the claims of the petitioners are required to be decided by the Executing Court by following the procedure of a suit in terms of Section 141 of the Code. The learned counsel further submitted that since the petitioners are in possession of half of the suit property, if they object to the execution of the decree holder/respondent 1st party and have filed the petition under Order XXI, Rule- 97, 100, 104 read with Section 151 of the Code, the