- (1.) THE present petition has been preferred under Article 227 of Constitution of India against the order passed by learned Judicial Commissioner, Ranchi dated 2nd December, 2008 in Title Appeal No. 99 of 2008 whereby the order passed by learned Sub Judge -VI, Ranchi in Miscellaneous Case No. 8 of 2008 dated 31st July, 2008 was confirmed. Miscellaneous Case No. 8 of 2008 is an application preferred by the present petitioners under Order XXI Rule 97 of Code of Civil Procedure (hereinafter referred as C.P.C.) in Execution Case No. 8 of 2005. Thus, vide present petition, both the orders passed by the Courts below one by learned Sub -Judge -VI, Ranchi and another which is passed by learned Judicial Commissioner, Ranchi dated 31st July 2008 as well as 2nd December, 2008 respectively are under challenge.
(2.) HAVING heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that: - (i) The present petitioners' father had preferred an application bearing S.A.R. Case No. 163/1980 -81 under Section 71(A) of the Chhotanagpur Tenancy Act, 1908, which was partly allowed for five decimals of land vide order dated 12th September, 1986 and for twenty decimals of land, it was kept pending. (ii) Being aggrieved by this order, petitioners' father had preferred an appeal bearing S.A.R. Appeal No. 162/1986 -87. The said appeal was disposed of vide order dated 28th November, 1991 and the matter was remanded for fresh decision by S.A.R. Court. (iii) Thereafter, one more application was preferred by the present petitioners' father before S.A.R. Court and ultimately final order was passed by the S.A.R. Court on 26th November, 2007 and the whole land was given back to the present petitioners. Meanwhile the present petitioners were substituted petitioners upon death of their father. (iv) It also appears that thereafter, an execution of the aforesaid order has also been done as per order at Annexure - 1/1 to the memo of the present petition dated 1st February, 2008, as stated by counsel for respondent no. 1. (v) Against the final order passed in S.A.R. case dated 26th November, 2007, an appeal was preferred by the present respondent no. 1 bearing S.A.R. Appeal No. 62 (R) -15/ 2007 - 08. This appeal was allowed vide order dated 5th May, 2008 and the matter is again remanded to S.A.R. Court. The said order is at Annexure -2 to the memo of the present petition. (vi) It appears that meanwhile an Eviction Title Suit No. 7 of 1998 was instituted by the present respondent no. 1 against the respondent no. 2, which is alleged to be collusive suit, by the counsel for the petitioners. Thereafter, a compromise decree was passed between respondent nos. 1 and 2 dated 20th April, 2004. It appears that deliberately the present respondent no. 1 had not joined the present petitioners as defendants though he knew through S.A.R. Case No. 163/1980 -81 and S.A.R. Appeal No. 162/1986 -87 that the petitioners are directly interested party. (vii) It appears that thereafter, the present respondent no. 1, who was the original plaintiff in Eviction Title Suit No. 7 of 1998, had filed an Execution Case No. 8 of 2005 and they wanted execution of the judgment and decree of the Title Suit No. 7 of 1998, which was obtained by compromise. (viii) It appears that thereafter present petitioners had preferred an objection application under Order XXI Rule 97 of C.P.C. in an Execution Case No. 8 of 2005 prior to execution dated 1st February, 2008 and, therefore, petitioners' objection application was dismissed vide order dated 31st August, 2007. (ix) It appears that thereafter the present petitioners had preferred a writ petition bearing W.P. (C) No. 5745 of 2007, which was also dismissed vide order dated 8th January, 2008 against which letters patent appeal bearing L.P.A. No. 25 of 2008 was preferred by the present petitioners. Because of the final order passed in S.A.R. Case No. 163/1980 -81 vide order dated 26th November, 2007, which was already executed on 1st February, 2008, letters patent appeal was not pressed and withdrawn. (x) Thus, it appears from the aforesaid facts that the petitioners are in search of getting justice right from S.A.R. Case No. 163/1980 -81, which was instituted by the father of the present petitioners. The matter was firstly remanded by the appellate authority vide order dated 28th November, 1991 and second time it was remanded by the same appellate authority in the appeal preferred by respondent no. 1 vide order dated 5th May, 2008. In meanwhile, a collusive suit (as alleged by the petitioners) was filed by respondent nos. 1 and 2 mainly for the reason that though respondent no. 1 is knowing fully well that long drawn proceeding is going on between the petitioner and respondent no. 1 and they have not joined the petitioners as party defendants and, therefore, it is alleged by the petitioners that Eviction Title Suit No. 7 of 1998 is a collusive suit. Be as it may, the fact remains that once the execution proceedings are over on the basis of compromise decree, it will cause irreparable loss because of an order dated 5th May, 2008 which has remanded the matter to the S.A.R. Court. Looking to the order passed by the appellate authority in S.A.R. Appeal No. 62 (R) -15/2007 -08 (preferred by respondent no. 1), the matter has been remanded to S.A.R. Court for the decision to be taken within sixty days from the date of the order. No decision has been taken by S.A.R. Court till today, as alleged by counsel for the petitioners and in meanwhile respondent no. 1 is pressing hard for the completion of the execution of the proceedings in Execution Case No. 8 of 2005. Counsel for the respondent no. 1 at this stage submits that he is not pressing for getting execution in Execution Case No. 8 of 2005 as stay has been granted by this Court in the writ petition. It is submitted by counsel for respondent no. 1 that status quo order is passed by this Court dated 2nd December, 2008. Thus, the status quo order is continued since 2nd December, 2008 and, therefore, Execution Case No. 8 of 2005 has not yet been finalized and looking to the order passed in an appeal bearing S.A.R. Appeal No. 62 (R) -15/2007 -08 dated 5th May, 2008 at Annexure 2, I hereby direct S.A.R. Court to pass the final order in view of an order passed in S.A.R. Appeal No. 62 (R) -15/2007 -08 dated 5th May, 2008 within a period of four weeks from the date of receipt of a copy of the order of this Court, meanwhile, status quo order passed by this Court dated 2nd December, 2008 shall stand continued to be operative and execution proceedings bearing Execution Case No. 8 of 2005 shall be stayed till final order passed by the S.A.R. Court. The petition is allowed to the aforesaid extent and the order passed by the learned Sub -Judge VI, Ranchi dated 31st July, 2008 in Miscellaneous Case No. 8 of 2008 as well as the order passed by learned Judicial Commissioner, Ranchi dated 2nd December, 2008 in Title Appeal No. 99 of 2008 are hereby quashed and set aside and the application preferred by the present petitioners under Order XXI Rule 97 of C.P.C. in Execution Case No. 8 of 2005 is allowed to the aforesaid extent.
(3.) S .A.R. Court or Execution Court will decide the matter independent of the aforesaid observations and on the merit of the case itself. This order is passed only with a view to dispose of the present writ petition. All the issues raised by respondent no. 1 and respondent no. 2 as well as by the petitioners on merits are kept open.;