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1979 Supreme(Ori) 28
High Court Of Orissa
N. K. Das, J.
ABDUL RASID KHAN - Appellant
Versus
SK.RAHIMTULLA - Respondent
Civil Revn. 510 Of 1978
Decided On : 05/14/1979
A.K.TRIPATHY, A.MOHANTY, N.Prusty, P.K.ROUTRAY, R.N.SINHA, S.N.SINHA, Y.S.N.MURTY
A person who is not a party to a suit cannot file a petition under Section 151 of the CPC to challenge the execution of a decree passed in that suit.
Headnote:
CIVIL PROCEDURE CODE, 1908 - Section 151 - Execution of decree - Benamidar - Locus standi to file petition under Section 151 - Decree-holder not bound by decree against Benamidar - Benamidar bound by decree against real owner.
Fact of the Case:
The petitioner, claiming to be the real owner of the suit property, filed a petition under Section 151 of the Civil Procedure Code (CPC) in an execution case, seeking to restrain the decree-holders from delivering possession of the property to them. The petitioner had obtained a decree in a separate suit declaring that he was the real owner of the property and that the judgment-debtor was his Benamidar. However, the petitioner was not a party to the suit in which the decree was passed against the judgment-debtor.
Finding of the Court:
The court held that the petitioner had no locus standi to file the petition under Section 151 of the CPC as he was not a party to the suit in which the decree was passed. The court further held that the decree-holders were not bound by the decree obtained by the petitioner in the separate suit, as the petitioner was not a party to the suit in which the decree was passed against the judgment-debtor.
Issues: 1. Whether the petitioner had locus standi to file the petition under Section 151 of the CPC? 2. Whether the decree-holders were bound by the decree obtained by the petitioner in the separate suit?
Ratio Decidendi: 1. A person who is not a party to a suit cannot file a petition under Section 151 of the CPC to challenge the execution of a decree passed in that suit. 2. A decree-holder is not bound by a decree obtained by a third party in a separate suit, as the third party was not a party to the suit in which the decree was passed against the judgment-debtor.
Final Decision: The court dismissed the petitioner's revisions, holding that the executing court had rightly held that the petitioner had no locus standi to move the executing court on the grounds stated in his petitions.
N. K. DAS, J.
( 1 ) BOTH the revisions have been filed against the same order. In C. R. 509/78 the prayer is in a concise form and this has been clearly stated in C. R. 510/78. Both the revisions are the same, the latter being in a clarified form only. So, both the revisions are considered to be one.
( 2 ) THE petitioner filed an application under Section 151 of the Civil P. C. in an execution case. The said petition has been rejected and as against that order the revision has been preferred. The decree-holders in O. S. No. 48/71-I, which was instituted on 11-5-1971 and finally disposed of on 22-6-1976, are executing the decree. The decree directs opposite party No. 6 to deliver vacant possession of the suit premises, failing which he is to be evicted through the process of Court. In that execution case, the present petitioner filed petitions under Section 151, Civil P. C. which have been rejected.
( 3 ) IN O. S. No. 48/71-1, the petitioner filed a petition to be added as a party, but the said petition was rejected. The matter was carried by him to this Court, but to no effect. Thereafter, he instituted O. S. No. 96/73-1 for declaration that he is the real purchaser of 'kha' schedule property by virtue of sale-deed dated 10-8-1970 and opposite party No. 6 is only a Benamidar and that he is not bound by the decision in O. S. No. 48/71-1. A declaration has been made in that suit that the transaction under Ext. I is Benami and the present petitioner is the owner of the property and is not bound by the decision in O. S. No. 48/71-1. He now claims to be in possession of the suit house stating that opposite party No. 6 has no concern in it and since the decree-holders are trying to evict him, he has prayed for restraining the process-server from delivering possession of the' same to the decree-holders,
( 4 ) OBJECTION has been made by the opposite parties that the present petitioner is a man of the judgment-debtors and Sk. Sobhan was never a Benamidar. As the petitioner was not a party to O. S. No. 48/71-1 and his petition for being added as a party having been rejected, he cannot resist the delivery of possession. It has further been asserted that the petitioner cannot invoke the inherent jurisdiction of the Court without filing a fresh suit.
( 5 ) THE plaintiffs in O. S. No. 48/71-1 have prayed for delivery of possession as per the direction in the decree passed in their favour. Opposite party Nos. 1 to 4 are brothers. Opposite party No. 4 sold his share to opposite party No. 5. Opposite party No. 5 is said to have sold the disputed property to opposite party No. 6. On 11-5-71, opposite party Nos. 1 to 3 filed O. ;s. No. 48/71-1. They prayed for declaration of title and for repurchase under Section 4 of the partition Act along with recovery of possession from opposite parties 5 and 6. The present petitioner filed an application to be added as a party in that suit on 12-11-71. This was rejected. The matter came up to High Court in revision and the revision was dismissed. Thereafter, the petitioner filed O. S. No. 96/73-1 alleging that opposite party No. 6 was his Benamidar. All the present opposite parties were parties to that suit and ex parte decree was obtained by the-petitioner on 1-3-74. Thereafter, O. S. No. 48/71-1 was also decreed. Execution was levied by the decree-holders in O. S. No. 48/71-1 in Execution Case No. 17/77. In this Execution Case the present opposite parties 1 to 3 prayed to take possession of the suit property alleging that the petitioner was in possession on behalf of the judgment debtor-opposite party No. 6. This petitioner filed an application in that Execution Case alleging that he is the title holder and the execution Case can no longer proceed against opposite party No. 6. The executing court rejected this petition on the ground that the petitioner is a third party and has no locus standi to file the petition under S, 151 C. P. C.
( 6 ) IT is contended by the counsel for the petitioner that after
