Indradeo Thakur Vs Surendra Kumar Giri

IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.1016 of 2023

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Indradeo Thakur Son of Late Matuk Thakur Resident of Village Chanauraganj Jhanjharpur, P.S.-Jhanjharpur District Madhubani. At Present Resident of Mohalla Saifullahganj P.S. L.N.M.U. Campus P.O. and District-Darbhanga.

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... ... Petitioner/s

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Surendra Kumar Giri Son Town, P.O. and District-Da ===================	Versus of Ram Sagar Giri Resident of Mohalla-Mufti, P.S. rbhanga. ... ... Respondent/s ===================================
Appearance :
For the Petitioner/s : For the Respondent/s : ===================	Mr. Bhubneshwar Prasad, Adv. Mr. Arvind Kumar Verma, Adv. Mr. Abhishek, Adv. Mr. Binod Kr. Sinha, Adv. ===================================

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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT

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Date : 29-07-2024

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Heard learned counsel for the petitioner as well as learned counsel for the respondent.

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The present application has been filed under Article 227 of the Constitution of India against the order dated 27.09.2023 passed by the learned Sub-Judge-II, Darbhanga in Title Execution Case No. 02 of 2019 whereby and where under, a petition dated 04.08.2023 filed by the decree holder/respondent for delivery of possession of the decretal property has been allowed.

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Learned counsel for the petitioner submits that the impugned order is not sustainable as the same has been passed without considering the overall facts and circumstances of the case. The respondent filed Title Suit No. 340 of 2014

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Patna High Court C.Misc. No.1016 of 2023 dt.29-07-2024 2/5

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before the Court of learned Sub-Judge-I, Darbhanga, seeking relief of specific performance of contract of sale with respect to schedule 1 property. The respondent claimed that he entered into an agreement of sale with defendant/petitioner for consideration amount of Rs. 25 lakh, out of which, he made payment of Rs. 19 lakh as earnest money and the sale deed was to be executed for land and building of Schedule I of plaint on payment of balance amount of Rs. 6 lakh. As the defendant/petitioner failed to honour his commitment, the title suit was filed. Learned counsel further submits that, however, the title suit was decreed ex-parte behind the back of the defendant/petitioner with the judgment dated 29.05.2018 passed by the learned Sub-Judge-II, Darbhanga. Thereafter, Title Execution Case No. 02 of 2019 was instituted for execution and implementation of the judgment and decree of Title Suit No. 340 of 2014. Once again, no notice of the proceedings of Title Execution Case No. 02 of 2019 has been served upon the defendant/petitioner. When a court notice was pasted at the house of the defendant/petitioner, the defendant/petitioner came to know about pendency of the Execution Case No. 02 of 2019 and filed an application on 14.12.2022. Learned counsel further submits that the said objection was rejected vide order dated 12.07.2023.

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Patna High Court C.Misc. No.1016 of 2023 dt.29-07-2024 3/5

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Learned counsel for the petitioner further submits that for setting aside ex-parte proceeding of Title Suit No. 340 of 2014, the defendant/petitioner has filed Miscellaneous Case No. 42 of 2022 which is still pending before the learned trial court. The specific averment of the defendant/petitioner is that he did not enter into any agreement with the plaintiff/decree holder/ respondent and in the light of this fact, the orders against the defendant/petitioner become bad since the defendant/petitioner was proceeded ex-parte both in title suit as well as in execution case. For this reason, the impugned order allowing the plaintiff/decree holder/respondent to deposit cost of appointment of Magistrate and police force for taking appropriate action is not sustainable and the same is required to be set aside.

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Learned counsel appearing on behalf of the plaintiff/decree holder/respondent vehemently submits that there is no infirmity in the impugned order. Learned counsel further submits that the defendant/judgment debtor/petitioner has already moved before the learned trial court by filing miscellaneous case for setting aside the decree against him and he can move proper application for stay of execution proceeding but making objection to the petition filed for delivery of

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Patna High Court C.Misc. No.1016 of 2023 dt.29-07-2024 4/5

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possession is without any merits. The defendant/petitioner has failed to show as to why the present miscellaneous petition should be allowed. Whatever has been submitted regarding exparte proceedings, the same is not correct as the defendant/petitioner deliberately did not appear before the learned trial court, though he has taken consideration money of Rs. 19 lakh and through the process of the court, sale deed was registered in favour of the plaintiff/decree holder/respondent and only the possession was required to be given to the decree holder. For this purpose, the respondent moved application before the learned executing court which was allowed. The defendant/petitioner has not challenged the order whereby his earlier objection petition dated 14.12.2022 was disposed of. The defendant/petitioner has also not sought any stay on the proceedings of execution before the learned executing court, where his Miscellaneous Case No. 42 of 2022 is still pending. Thus, learned counsel for the respondent submits that there is no infirmity in the impugned order and the same does not need any interference.

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Having regard to the rival submissions and in the facts and circumstances of the case, whatever submission has been made on behalf of the defendant/petitioner, the same

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Patna High Court C.Misc. No.1016 of 2023 dt.29-07-2024 5/5

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relates to the merits of the miscellaneous case and does not in any manner assail the orders passed in execution proceeding. Delivery of possession is natural consequence of execution of sale deed and the sale deed has been executed and registered through the process of the Court. Therefore, the order passed by the learned Sub-Judge-II, Darbhanga could not be said to be such an order where there is any error of jurisdiction or for that matter, non-consideration of relevant facts and non-application of judicial mind. For these reasons, I do not find any infirmity in the impugned order and, hence, the same is affirmed.

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Accordingly, the present civil miscellaneous petition stands dismissed.

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(Arun Kumar Jha, J)

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sadique/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	01.08.2024
Transmission Date	NA

Indradeo Thakur v. Surendra Kumar Giri

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Indradeo Thakur v. Surendra Kumar Giri

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