Remanded

Satyanarayan Sao @ Satya Praka v. Naresh Sao and Ors.

Patna HC19 Oct 2012CWJC/17447/2011

Case brief

AI extract

What is this about?

In Execution Case No.1 of 2007, the executing court rejected the petitioner's application under section 47 of the Code of Civil Procedure on the ground that the petitioner was not a party to the suit. The High Court held that the executing court did not apply its mind and remanded the matter for a fresh enquiry under Order 21, rule 97.

What did the court decide?

The matter was remanded back to the executing court to inquire into the matter under Order 21, rule 97 of the Code and pass an order afresh.

Satyanarayan Sao @ Satya Praka Vs Naresh Sao and Ors. — Execution and Attachment | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17447 of 2011

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====================================================== Satyanarayan Sao @ Satya Prakash @ Satya Narayan Gupta @ Sato Sao, son of Ramchandra Prasad Halwai and adopted son of late Bhola Sao, resident of Village- Chandni Chowk, P.S. Sheikhpura. .... .... Petitioner/s Versus 1. Naresh Sao, son of late Shiv Sao. 2. Shrawan Kumar, son of late Shiv Sao Both are residents of Sheikhpura, Mohalla- Pool Part, P.S. and District- Sheikhpura, at present M.S. Ravi Cycle Works Proprietor Narain Sao, son of late Shiv Sao, Chandni Chowk, Sheikhpura, P.S. and District- Sheikhpura. 3. Most. Parbati Devi (since deceased), wife of late Bhola Halwai, resident of Village- Kamuri Bazar Tola Kamianari, P.S. + DistrictSheikhpura. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Devendra Prasad Singh For the Respondent/s : Mr. Manoj Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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10 19-10-2012 Heard Mr. Devendra Prasad Singh, learned counsel appearing on behalf of the petitioner and Mr. Manoj Kumar, learned counsel appearing on behalf of the respondents.

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The petitioner is aggrieved by the order dated 15.3.2008 passed by the learned Civil Judge (Junior Division), Sheikhpura in Execution Case No.1 of 2007, whereby the executing court has been pleased to reject the application filed by the petitioner, inter alia, in the light of the provisions underlying section 47 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’).

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It is the opinion of the learned executing court that as the petitioner was not a party to the suit proceedings, hence an

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Patna High Court CWJC No.17447 of 2011 (10) dt.19-10-2012

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application under section 47 of the Code at his instance is not maintainable.

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The copy of the application is placed at Annexure 2 to the proceedings and which manifests that the application was filed by the petitioner under section 47 of the Code read with Order 21, rule 97 and section 151 thereof. It is thus not an application exclusively under the provisions of section 47 of the Code. Even if the same was an application under section 47 of the Code, it did not preclude the executing court to examine the issues raised by the petitioner in exercise of powers vested under the provisions of Order 21, rule 97of the Code. Reference in this regard is made to a judgment of the Supreme Court reported in (1996)3 SCC 154 (Babu Lal vs. Raj Kumar).

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As the executing court has not applied its mind to this aspect of the matter, this Court is of the opinion that the best course would be to remand back the matter to the executing court to enquire into the matter in terms of the provisions of Order 21 rule 97 of the Code and pass order afresh in accordance with law and after hearing the contesting parties.

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With the observation aforesaid this application stands disposed of.

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(Jyoti Saran, J)

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SKPathak/-

Satyanarayan Sao @ Satya Praka v. Naresh Sao and Ors.

Case brief

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Satyanarayan Sao @ Satya Praka v. Naresh Sao and Ors.

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