- (1.) Aggrieved by orders dated 22.05.2013, 23.05.2013, 27.05.2013 and 29.05.2013 in Misc. Case No.07 of 2013, the present writ petition has been filed.
(2.) The petitioner no.1 was defendant in Eviction Suit No.03 of 2004 and petitioner nos.2 to 6 are legal heirs and successors of the petitioner no.1. Eviction Suit No.03 of 2004 was instituted by Smt. Chintamani Mitra, wife of Shri Baleshwar Rana for ejection of Smt. Jamuna Devi from ScheduleB property. The plaintiff claimed that she purchased about 38/9th Decimals land comprised in Plot Nos.333 and 340 under Khata Nos.36 and 78, Khewat No.1 within Thana No.30, Touji No.15 of 2011, corresponding to Giridih Municipal Holding No.734 (part) from Ram Prasad Sharma through registered sale deed dated 17.11.1998. The defendant no.1 was a tenant under the said Ram Prasad Sharma on payment of monthly rent of Rs. 150/-. The eviction suit was instituted on the ground of default in payment of rent. The defendant no.1, in the meantime instituted Title Suit No.209 of 1998 seeking a decree of specific performance of agreement for sale dated 15.10.1998. In the title suit, the said Ram Prasad Sharma was defendant no.1 and Smt. Chintamani Mitra was made defendant no.2. It was pleaded that though Ram Prasad Sharma has executed agreement of sale dated 15.10.1998 and received a sum of Rs. 2,000/- as advance and the sale deed was to be executed after receiving the balance consideration amount on 15.10.1999, he sold the said property to Smt. Chintamani Mitra. Title Suit No.209 of 1998 was dismissed on 04.12.2001 and Title Appeal No.05 of 2001 as well as S.A. No.216 of 2003 were also dismissed. Thereafter, Eviction Suit No.03 of 2004 was instituted by Smt. Chintamani Mitra which was decreed and the appeal was also dismissed however, S.A. No.123 of 2012 is pending. During the pendency of Eviction Suit No.03 of 2004, Smt. Chintamani Mitra died and her legal heirs and successors were substituted. After the judgment and decree in Eviction Suit No.03 of 2004, the substituted, plaintiffs filed Execution Case No.01 of 2012, in which the petitioners filed application under Section 47 CPC. Since the application dated 13.02.2013 filed under Section 47 CPC was not disposed of and, in the meantime, date for delivery of possession was fixed by the trial court, the petitioners moved this Court in W.P.(C) No.1240 of 2013 which was disposed of vide order dated 22.04.2013 directing the trial court to decide Section 47 application, within one month. The petitioners are aggrieved by order passed by the trial court whereby, the timepetition filed by the petitioners has been dismissed and the application under Section 47 CPC has been decided on merits.
(3.) The application under Section 47 CPC was filed by the petitioners challenging status of the plaintiffs as not the legal heirs and successors of the original plaintiff namely, Chintamani Mitra. It was pleaded that the plaintiff was not a legally wedded wife of Baleshwar Rana and Uday Kumar is not the son of Chintamani Mitra. It was also asserted that the original judgment-debtor, Jamuna Devi was not tenant under Smt. Chintamani Mitra and thus, the substituted legal heirs of Jamuna Devi are not tenants under the plaintiffs. The respondents-decree holders opposed the said application, which was registered as Misc. Case No.07 of 2013, asserting that the application under Section 47 CPC has been filed only to delay the execution of decree passed in Eviction Suit No.03 of 2004. It was pleaded that the judgment-debtors have filed as many as 11 cases with respect to the suit property and except, S.A. No.123 of 2012, all stood dismissed. The order passed by this Court in W.P.(C) No.1240 of 2013 was produced before the trial court and the trial court noticing the direction of this Court, permitted the applicants/judgment-debtors to produce their evidence. The applicants filed list of witnesses and, on the next date of hearing that is, 21.05.2013, Nakul Rana examined himself as a witness and after cross-examination, he was discharged. On 22.05.2013, judgment-debtors filed a time-petition which was dismissed. On 27.05.2013, the judgment-debtors did not appear and the matter was fixed for 29.05.2013.;