1. The petitioner, by way of the present petition, under Article 227 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 16th January, 2013 (Annexure-6), whereby the petition of the Judgment Debtor dated 11.06.2012 (Annexure-4) filed under Section 47 of the Code of Civil Procedure has been rejected at the time of admission.

2. Heard the learned counsel for the petitioner as well as respondent.

3. Perused the impugned order as well as other materials placed on record.

4. The learned counsel for the petitioner submitted that the application filed under Section 47 of the Code of Civil Procedure before the executing court was maintainable as the inherent jurisdiction for passing a decree was questioned by the petitioner. According to the learned counsel for the petitioner, the suit was filed under Section 11 (1) (e) of the Bihar Building (Lease, Rent and Eviction) Control Act and there is no provision for recovery of possession of fixture, fittings and furnitures, provided under Section 14 of the

Bihar Building (Lease, Rent and Eviction) Control Act and therefore, special procedure prescribed under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act

is not applicable to the relief, which has been sought in the suit. According to the learned counsel for the petitioner, the court below failed to appreciate this aspect of the matter and thereby rejected the application filed under Section 47 of the Code of Civil Procedure. The learned counsel for the petitioner by referring Section 47 of the Code of Civil Procedure further submitted that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit and therefore, it was the duty of the executing court to entertain the said application and decide the same in accordance with law. It is further submitted that the said application was not registered as a Miscellaneous case and without registering the said application as a Miscellaneous case, the court below dismissed the same and therefore, such cause is not open to the court below under Section 47 of the Code of Civil Procedure. It is further submitted that the application filed under Section 47 of the Code of Civil Procedure cannot be rejected in limine without registering it as a miscellaneous case.

The learned counsel for the petitioner in support of his contentions, has referred to and relied upon the following case laws : -

(i) AIR 1951 Patna 372;

(ii) (1973) 2 SCC 474 ;

(iii) AIR 1990 Punjab & Haryana 92.

The learned counsel for the petitioner further submitted that the application filed under Section 47 of the Code of Civil Procedure can not be summarily dismissed. It is always open to the Court to which a petition is presented to consider it on its own merit at the time of presentation. In this context, the learned counsel for the petitioner has also placed reliance upon one Circular, issued by the Patna High court, which was also referred by the learned counsel for the Respondent.

5. As against that, the learned counsel for the respondent supported the order passed by the court below and submitted that the court below has rightly and properly rejected the application filed under Section 47 of the Code of Civil Procedure. It is further submitted that the suit was filed by the plaintiff for a decree for eviction of the defendant from the suit premises described in Schedule 'A' and 'B'. The learned counsel for the respondent by referring the averments made in the Eviction (Title) Suit No. 10 of 2006, submitted that in paragraph-2, specific averments were made to that effect. The learned counsel for the respondent also referred to the judgment and decree passed by the court below (Annexure-A to the counter affidavit) and by referring