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CASE NO.:

Appeal (civil) 5457 of 2002

PETITIONER:

TANZEEM-E-SUFIA

Vs.

RESPONDENT:

BIBI HALIMAN AND ORS.

DATE OF JUDGMENT: 03/09/2002

BENCH:

R.C. Lahoti & Brijesh Kumar.

JUDGMENT:

BRIJESH KUMAR, J.

Leave granted.

Heard learned counsel for the parties.

While issuing notice on 28.9.2001, this Court

passed the following order:

"Issue notice limited to the question as

to why the petitioner should not be allowed

to pursue at least one of the two remedies

either to proceed with application under

Order XXI rule 97 C.P.C. or with civil suit.

Until further orders the petitioner shall not

be removed from possession in execution of

decree."

The brief facts of the case are that the respondent

Bibi Haliman and others had filed a title suit No. 8of

1983 for eviction of the defendants. The suit relates

to holding No. 116 (Old)/182 (New) situated in ward No.

2 of Giridhih Municipality. The suit was decreed in

favour of Bibi Haliman in pursuance whereof the

defendants were to handover the possession of suit

property to the plaintiff. The decree holder Bibi

Haliman and others filed an execution case No. 12 of

1984 for obtaining the possession of the premises

indicated above. It is said that according to the

report of the Nazir dated 26.7.1992, the Judgment

debtors No. 1 to 6 had vacated the suit premises but

Judgment debtor No. 7 Siwaitulla son of Kahamatulla had

not given the possession and at the time the Nazir

went to execute the delivery of the possession he found

that Judgment debtor was lying in bed and doctors

attending him told the Nazir that Judgment debtor was

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a heart patient and he should not be informed about the

warrant of delivery of possession as it may adversely

affect his condition. According to the report, the

son of the Judgment debtor told the Nazir that property

belongs to Sufi Ashram where Sufi Dhyan Kendra has

been established with registration No. 196 Tanzeem-e-

Sufia Sufi Sant Ashram, hence the delivery of

possession could not be affected. The Judgment

debtor No. 7 filed an application under Section 151

C.P.C. on behalf of one Ashok Kumar Gupta, Secretary

Tanzeem Sufia. The said application was registered as

Misc. case No. 1 of 1994 by order dated 14.2.94. The

decree holder preferred a Civil Revision No. 125/94R

against the order dated 14.2.1994 at the Ranchi Bench

of the High Court. The Revision has been allowed on

13.9.1994 and order dated 14.2.1992 was set aside by

the High Court observing that the applications dated

3.8.92 and 12.10.1993, moved on behalf of the

objector, a 3rd party, at the stage of execution

proceeding when the decree holder had not, despite the

report of the Nazir, filed an application under Order

21 Rule 97 CPC, were premature.

The appellant also filed a title suit No.66 of

1993 against the decree holders in respect of the same

premises with a prayer for declaration of title in

their favour, confirmation of possession and in case

found dispossessed during the pendency of the suit,

then a decree for recovery of possession was also

prayed for. It was further prayed that decree obtained

in title suit No. 8 of 1983 be declared not binding on

the plaintiff, namely the present appellant. In

Execution case No. 12 of 1984, the appellant filed a

caveat under Section 148 of the Civil Procedure Code

praying that in case any application under Order 21

Rule 97 CPC is filed by the decree holder in that event

caveator may be heard before passing any order on such

an application. The decree holder, thereafter filed a

petition dated 13.3.1995, for issuance of writ of a

delivery of possession. The appellant requested the

executing court to treat the said application dated

13.3.1995 moved by decree holder as a petition under

Order 21 Rule 97 CPC. The executing court by order

17.8.2001, rejected the prayer of the appell