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Abdul Rasid Khan Vs. Sk. Rahimtulla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 509 and 510 of 1978
Judge
Reported inAIR1979Ori175; 47(1979)CLT643
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 151
AppellantAbdul Rasid Khan
RespondentSk. Rahimtulla and ors.
Appellant AdvocateY.S.N. Murty, Adv.
Respondent AdvocateA. Mohanty, ;N. Prusty and ;A.K. Tripathy, ;R.N. Sinha, ;S.N. Sinha and ;P.K. Routray, Advs.
DispositionPetitions dismissed
Cases ReferredTeja Singh v. A. D. M.
Excerpt:
.....406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 509/78 the prayer is in a concise form and this has been clearly stated in c. , air 1971 sc 374, it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. 7. it is well settled that a benamidar is bound by the decision against the real owner, so also a benamidar can represent the real owner. 8. the revisions, therefore, fail and are accordingly dismissed......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.....
Judgment:
ORDER

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 obtaining decree in O. S. No. 96/73-1, the petitioner filed a petition in O. S. No. 48/ 71-1 stating that the property belongs to him and should not be affected by the decree. No orders were passed on that petition and O. S. No. 48/71-1 has been decreed. He has not agitated this matter in higher court, nor has he filed any appeal against the decree in O. S. No. 48/71-1, even though he was pre-judicially affected by the decree. In Smt. Jatan Kanwar Golcha v. Golcha Properties Pvt. Ltd., AIR 1971 SC 374, it has been held that it is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. This decision has also been followed by a Division Bench of this Court in Teja Singh v. A. D. M. (Executive), Sundargarh, (1975) 1 Cut WR 178. It was open to the petitioner to ask for leave to appeal to the appellate court and if he is prejudicially affected, leave was to be granted, as has been held by the Supreme Court in the case referred to above. But the petitioner did not take recourse to this position.

7. It is well settled that a Benamidar is bound by the decision against the real owner, so also a Benamidar can represent the real owner. But the question involved in the present revisions is that the petitioner was not a party to O. S. No. 48/71-1 and has obtained a decree subsequently. The decree in O. S. No. 48/71-1 is being executed and the executing court cannot go behind the decree and has to execute it as it stands, unless the decree is nullity. Undoubtedly the court which passed the decree has jurisdiction to pass such a decree and the decree is not against a dead man. Simply because the Court did not implead the present petitioner as a party to that suit, it cannot be said that the decree is a nullity or without jurisdiction. There was ample opportunity for the present petitioner to challenge the validity of the decree either on the ground of res judicata or on any other relevant ground of law by instituting a separate suit when the petitioner did not choose to prefer an appeal with the leave of the appellate court against the decree in that suit. The petitioner has now filed the petitions under Section 151 C. P. C. and the executing court has rightly held that the petitioner has no locus standi to move the executing court on the grounds stated in his petitions and the executing court cannot go behind the decree which still stands as a valid decree and has not been declared by a competent court as invalid and the decree has also not yet been set aside. The order of the executing court does not appear to be illegal nor there has been illegal exercise of jurisdiction, or material irregularity in exercise of jurisdiction. Accordingly, I hold that there is no compelling reason to interfere with the orders of the court below. 8. The revisions, therefore, fail and are accordingly dismissed. In the circumstances of the case, there will be no order as to costs.


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