Jharkhand High Court
Pradeep Kumar Agarwal vs Sabita Devi And Ors on 21 September, 2015
Author: D. N. Upadhyay
Bench: D. N. Upadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No.25 of 2014
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Pradeep Kumar Agarwal. .......... Petitioner.
-Versus-
1. Sabita Devi.
2. Rajendra Raut.
3. Yogendra Raut. .......... Opp. Parties.
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CORAM : HON'BLE MR. JUSTICE D. N. UPADHYAY
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For the Petitioner : Mr. V. Shivnath, Sr. Advocate For the Opp. Parties : Mr. Prashant Pallav, Advocate
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CAV On 3rd Sept., 2015 Pronounced on 21stSept., 2015 D. N. Upadhyay, J:
1. This civil revision has been preferred by Pradeep Kumar Agarwal-opposite party/petitioner against the judgment dated 7th June, 2014 passed by learned District Judge-I, Deoghar in Civil Misc. Appeal No.11 of 2009, whereby and whereunder, learned Lower Appellate Court has been pleased to dismiss the appeal filed against the order dated 4th December, 2009 passed by learned Sub Judge-II, Deoghar in Misc. Case No.11 of 2008, arising out of Title Execution Case No.2 of 2002, on a petition filed by Respondent-Sabita Devi under Order XXI Rule 99 read with Rule 97 and Section 151 of the Code of Civil Procedure.
2. The fact, in brief, is that the petitioner-Pradeep Kumar Agarwal filed Title Suit No.25 of 2001 against defendant-
Radhika Rautain for specific performance against agreement to sell dated 20th December, 1998 executed by defendant-Radhika Rautain. In Title Suit No.25 of 2001, the defendant-Radhika Rautain did not appear, as a result ex. parte decree in favour of plaintiff/petitioner-Pradeep Kumar Agarwal was passed.
3. On the other hand, case of Sabita Devi-Opposite Party No.1 is that she got the suit property on the basis of a deed of sale executed and registered on 4th January, 1999 by Radhika Rautain, the original owner and since then she has been enjoying her peaceful possession over the suit property. She also got her name mutated in the year 2004-05. She got a building plan sanctioned from Deoghar 2 Municipality in the year 2005 and constructed a house thereon.
4. The petitioner-Pradeep Kumar Agarwal filed Title Execution Case no.2 of 2002 for execution of the decree passed in Title Suit No.25 of 2001, but it was objected by Sabita Devi by filing a petition under Order XXI Rule 99 read with Rule 97 and Section 151 of the Code of Civil Procedure and the said petition was registered as Misc. Case No.11 of 2008. The decree holder-Pradeep Kumar Agarwal and objector- Sabita Devi filed their documents and adduced evidences and after considering the documents and evidences brought on record by both the parties, learned Sub Judge-II, Deoghar vide order dated 4th December, 2009 decided the petition in favour of objector-Sabita Devi and directed the decree holder-Pradeep Kumar Agarwal to restore possession of Sabita Devi over the suit property.
5. Being aggrieved by the order dated 4th December, 2009 passed in Misc. Case No.11 of 2008, the petitioner/decree holder filed civil miscellaneous appeal, being Civil Misc. Appeal No.11 of 2009, which stood dismissed from the court of learned District Judge-I, Deoghar vide judgment/order dated 7th June, 2014. Hence this civil revision.
6. Both the parties were heard on the point of maintainability of the instant revision application filed against the order dated 7th June, 2014 passed in Civil Misc. Appeal No.11 of 2009. The order passed in Misc. Case No.11 of 2008 appears to be an order passed after adjudication against the petition filed under Order XXI Rule 99 read with Rule 97 and Section 151 of the Code of Civil Procedure. The order so passed after adjudication is treated to be a decree, as indicated under Rule 103 of Order XXI, which is appealable. Accordingly, miscellaneous appeal was preferred before the learned District Judge, Deoghar and after disposal of said civil miscellaneous appeal, present revision application has been filed.
7. The judgments relied upon by the petitioner/decree holder do not appear to be applicable in view of the facts and 3 circumstances appearing in the case at hand, rather the facts and circumstances and the orders passed in connection with miscellaneous case and miscellaneous appeal, referred to above, almost tally with the facts and circumstances appearing in the judgment of this Court in the case of Jogendra Kaur Vs. Kali Prasad @ Kalu Prasad, reported in 2003(2) JLJR 71.
8. According to the judgment passed by this Court in Jogendra Kaur's case (Supra), second appeal under Section 100 CPC is maintainable. Since the issue involved is squarely covered by the said judgment, present civil revision application against the order dated 7th June, 2014 passed in Civil Misc. Appeal No.11 of 2009 does not appear to be maintainable.
9. In view of the above, the petitioner is given liberty either to withdraw the present civil revision application or to take step to convert the same in the form of second appeal required under Section 100 CPC.
10.Two weeks' time is allowed to the petitioner to do needful, failing compliance thereof this revision application shall stand disposed of.
(D. N. Upadhyay, J.) Sanjay/NAFR