IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.60 of 2020

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Aslam Quraishi @ Md. Aslam Quraishi @ Md. Aslam S/o Late Md. Abdul

Mazid Khan @ Late Abdul Mazid Khan @ Md. Mazeed Quraishi, resident of

Mohalla- Chhoti Khagaul, P.O. and P.S. Khagaul, District- Patna.

... ... Petitioner/s

Versus

1.

Md. Geyasuddin Kuraishi, S/o Late Gaffar Kuraishi, resident of Bari

Khagaul, P.O. and P.S. Khagaul, District- Patna.

2.

Md. Sarfuddin, S/o Late Jamiruddin, resident of Bari Khagaul, P.O. and P.S.

Khagaul, District- Patna.

... ... Respondent/s

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Appearance :

For the Petitioner/s

:

Mr. Mahendra Prasad Bhartee, Advocate

For the Respondent/s

:

Mr. Tilak Sao, Advocate

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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

ORAL JUDGMENT

Date : 05-07-2022

Heard Mr. Mahendra Prasad Bhartee, learned

counsel for the petitioner and Mr. Tilak Sao, learned counsel

for the Respondents.

2. The petitioner is aggrieved by the impugned

order dated 15.11.2019 passed in Execution Case No. 17/2016

by the learned Sub Judge-VI, Danapur, by which the petition

filed by the petitioner dated 27.08.2019 regarding stay of the

proceeding of Execution Case No.17/2016 has been

dismissed.

3. The petitioner claims to be the owner of the

suit property being the heir of Abdul Mazid Khan. According

Patna High Court C.Misc. No.60 of 2020 dt.05-07-2022

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to the learned counsel for the petitioner, before the death of

Abdul Majid Khan, he had given Hibba in favour of the

petitioner on 25.07.1999 and the petitioner is in continuous

possession of the suit land since 1999. One of the heirs of

Abdul Mazid Khan sold the suit property by way of a sale

deed in favour of the Respondent No. 1, i.e. Md. Geyasuddin

Kuraishi who filed Eviction Title Suit No. 5/2014 against the

Respondent No. 2 (Tenant) which was decreed ex-parte and

on the basis of ex-parte decree, an Execution Case No.

17/2016 has been filed by the purchaser (Respondent No. 1).

4. The contention of the petitioner is that upon

execution of the ex-parte decree, the petitioner would be

dispossessed from the suit property in which he has right,

title, possession and interest. Accordingly, the petitioner filed

a Misc. Case No. 44/2018 under Order 21 Rule 97, 99, 101

read with Section 151 of the Civil Procedure Code before the

Executing Court which is pending. The petitioner prayed for

stay of the Execution Proceeding No. 17/2016 till the disposal

of Misc. Case No. 44/2018 filed by him under Order 21, Rule,

97, 99, 101 read with Section 151 CPC.

Patna High Court C.Misc. No.60 of 2020 dt.05-07-2022

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5. By the impugned order dated 15.11.2019 the

Executing Court has refused to stay the Execution Case after

coming to the conclusion that petitioner is neither a decree-

holder nor a party in the Title Eviction Suit No. 5/2014 or in

the Execution Proceeding vide Execution Case No. 17/2016.

6. Learned counsel for the petitioner submits that

it is a settled principle of law that under Order 21, Rule 97,

99, 101 read with Section 151 CPC, the Executing Court is

the authority to decide all the questions pertaining to right,

title and interest in the property arisen between the parties and

it also includes the claim of stranger who has already been

dispossessed from the immovable property. In support of his

argument, he relies upon a judgment of Hon’ble Supreme

Court in a case of Sameer Singh and Anr. Vrs. Abdul Rab

and Ors. reported in (2015) 1 PLJR (SC) 64. Learned counsel

next submits that one of the contentions raised by the

petitioner is that Abdul Mazid Khan has given the suit

property in favour of the petitioner by Zubani (oral) Hibba

and he is in continuous possession over the suit property

which has not been controverted by the Respondent in his

counter affidavit.

Pat