ORAL JUDGMENT

Date : 27-03-2024 Heard learned senior counsel for the petitioners and learned counsel for the respondents and I intend to dispose of the present civil miscellaneous petition at the stage of admission itself.

2. The present petition has been filed under Article 227 of the Constitution of India against the order dated 01.04.2017 passed by the learned Sub Judge III, Khagaria in Title Execution Suit No. 01 of 2012 by which the learned Court below has rejected the application dated 07.01.2017 filed by the petitioner for instituting a miscellaneous case and to decide the matter in accordance with law.

3. Learned senior counsel appearing on behalf of the petitioners submits that the petitioners filed an application under Order 21 Rule 97 read with 101 of the Code of Civil Procedure (in short ‘the Code’) in Title Execution Case No. 01 of 2012 with prayer to add them as intervenor and further to stay the proceeding of Execution Case No. 01 of 2012 till final decision over the petitioner’s application dated 18.01.2014.

4. The said Title Execution Case No. 01 of 2012 has been filed for execution of judgment and decree in Civil Appeal No. 212 of 2006 passed by the learned Additional District and Sessions Judge, F.T.C-I, Khagaria whereby the learned 1st Appellate Court has set aside the judgment and decree passed by the learned Sub Judge III, Khagaria in Title Suit No. 06 of 1993. The judgment debtor preferred Second Appeal and moved before the Hon’ble Supreme Court by filing Special Leave Petition but did not get any succour either from this Court or from the Hon’ble Supreme Court. Learned senior counsel further submits that the petitioners have not been made party in the original suit but they were having title and possession over the suit property and were in possession when the execution proceeding started. Learned senior counsel further submits that the claim of the petitioners is based on the fact that the decree holder was not having any right over the property in possession of the petitioners since the property belongs to one Sukhilal Mahto, common ancestor of the parties and father of Late Yugal Kishore Mahto, who was the original defendant No. 1 and till date there has not been any partition between the parties. For this reason the decree was not executable against the petitioners. Against the petition dated 18.01.2014, a rejoinder was filed by the decree holders denying the claim of the petitioners and it has been submitted on behalf of the decree holder that the suit property was acquired by Yugal Kishore Mahto on 7.12.1952 through registered sale deed which was subsequently transferred to Radha Devi @ Anuradha Devi on 30.12.1971 who had executed the sale deed dated 26.11.1990 in favour of the plaintiff and the suit property was self acquired which has been confirmed up to the stage of second appeal.

5. Learned senior counsel further submits that on the basis of order dated 13.03.2015 the decree holder along with Nazir of the Civil Court tried to interfere with the possession of the petitioners and accordingly, the petitioners prayed to stay the order of delivery of possession and to decide the matter after hearing all the parties. However, the learned Sub Judge III, Khagaria dismissed the application dated 18.01.2014 with the impugned order dated 13.03.2015 on the ground that the intervenors had filed petition for adding them as parties in the Execution case but it would not be proper to make them parties at this stage. The said order was challenged by filing Civil Writ Jurisdiction Case No. 6600 of 2015 by the petitioners and the order of the learned Executing Court was set aside and the writ petition was allowed by order dated 08.10.2015 with direction to consider afresh the petition dated 18.01.2014 filed by the petitioners in accordance with law. Thereafter, the petitioners filed another application on 07.01.2017 with prayer that a miscellaneous case be registered on the basis of petition dated 18.01.2014 filed