ABHINANDAN JHA Vs. ANANT MISHRA

JUDGEMENT

(1.) THIS civil revision application is directed against the order dated 3.6.2002 passed by the Addl. District Judge II, Madhubani in Title Appeal No.4 of 2002 rejecting the petition filed by the petitioners under Order XXI Rule 29 of the Code of Civil Procedure (hereinafter referred to as the Code) for staying the execution case being Execution Case No. 7 of 1999.

(2.) THE facts leading to the filing of the present application are that the defendants/opposite parties No. 1 to 3 filed a title Suit being Title Suit No. 31 of 1999 against the petitioners in the Court of Munsif 1st, Madhubani for declaration of title and possession over the property described in Schedule I of the plaint and for eviction and permnent injunction with regard to property described in Schedule II of the plaint. The said suit was decreed ex parte on 14.10.1999 against the petitioners. The petitioners filed a Miscellaneous case under Order IX Rule 13 of the Code for setting aside the ex parte decree. The said Misc. Case was dismissed on 15.5.2000. They preferred an appeal before the appellate court and the same was also dismissed. Thereafter the defendants/opposite parties No.1 to 3 levied an execution case being Execution Case No. 7 of 1999 in the Court of Munsif 1st, Madhubani against the judgment debtor/petitioners. The petitioners thereafter filed a Title Suit being T.S. No. 39 of 2001 out of which the present matter arises against the defendants/opposite parties No. 1 to 3 for declaration of their title and confirmation of possession over the same very land which was subject matter of earlier suit and for setting aside the exparte decree dated 14.10.1999 as fraudulent and not binding on them. The decree holder -defendants/ opposite parties No. 1 to 3 raised an objection as to the maintainability of the suit on the ground that the same is barred by principles of res judicata. The Munsif 1st, Madhubani by order dated 25.1.2002 held that the suit is barred by principles of res judicata: Thereafter the petitioners filed Civil Revision No. 235 of 2002 before this Court and this Court by order dated 22.4.2002 held that the civil revision application is not maintainable and the appeal is appropriate remedy against the aforesaid judgment and order and accordingly, the petitioners preferred Title Appeal No. 4 of 2002. During the pendency of the aforesaid appeal, they have filed the aforesaid petition for staying the execution case which has been rejected as stated above.

(3.) THE learned counsel for the defendants/opposite parties No.1 to 3 on the other hand submitted that the application under Order XXI Rule 29 of the Code was not maintainable at all before the appellate Court as the application can be filed only in the court which passed the decree earlier and where the subsequent suit is pending. Alternatively, he submitted that even if the application is treated to be filed under Section 151 of the Code, the appellate Court has considered and rejected the prayer of the petitioners and as such this Court in Civil Revision will not interfere with the order as the case is not covered by any of the clauses of Section 115 of Code.