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and 22.08.2017 filed under Section 151 of the Code has been rejected.

04. Background of the facts of the cases of the petitioners are that one Lalu Bahelia was the original owner of the suit property, who died leaving behind three sons namely, Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 Ganesh Bahelia, Naresh Bahelia and Timal Bahelia. Ganesh Bahelia had two sons, namely Hira Bahelia and Prahalad Behelia and two daughters, namely Prabhawati and Chandrawati. Hira Bahelia, died leaving behind his widow, five sons and two daughters. The plaintiff/respondent no. 1, Surendra Bahelia @ Surendra Ram claiming himself to be the the son of Timal Bahelia, filed a partition suit bearing No. 209 of 1994 before the court of learned Sub Judge, Chhapra against Ganesh Bahelia and his sons for partition of the suit land to the extent of 1/3rd share in the suit property. The said suit was dismissed vide judgment and decree dated 31.05.2007 and 13.06.2007, respectively. Being aggrieved by the judgment and decree of Partition Suit No. 209 of 1994, the plaintiff/respondent no. 1 filed Title Appeal No. 40 of 2007 and the said appeal was allowed vide judgment and decree dated 19.06.2009 and 24.06.2009, respectively, holding that the plaintiff was entitled to 1/3rd share in the suit land. Now, the petitioner-Raj Kumari Devi purchased 01 kattha 05 dhur of suit land from one Shanti Devi on 17.05.2004 through a registered sale deed and it further transpires that Shanti Devi had purchased the said land from one Panbata Devi, wife of Jhalaku Rai, on 24.05.1997. Jhalaku Rai was the defendant no. 5 in the original partition suit, who Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 subsequently died. On the other hand, petitioner-Rita Devi purchased the part of suit land from one Imdad Ali Khan, who had been sold the land by one of the original defendants, namely Hira Bahelia. Petitioner-Rita Devi purchased this land on 11.09.2007. In the same manner, petitioner-Mangal Rai purchased 1 katha 15 dhurs of suit land through different registered sale-deeds dated 24.10.1997 and 15.06.1999 from one of the defendants, namely Ganesh Bahelia, during the pendency of the appeal.

05. On the basis of judgment and decree dated 19.06.2009 and 24.06.2009 of the learned first appellate court, the plaintiff/respondent no. 1 filed Execution Case No. 03 of 2013 in which the petitioner-Rita Devi filed her objection under Order 21 Rule 97 of the Code whereas petitioners-Raj Kumari Devi and petitioner-Mangal Rai filed their respective objections under Section 151 of the Code, after receiving notice in Execution Case No. 03 of 2013. The learned trial court vide impugned order dated 05.08.2017 dismissed the objection petition of petitioners-Raj Kumari Devi and Rita Devi and also vide impugned order dated 06.09.2017 dismissed the objection petition of the petitioner-Mangal Rai. These impugned orders are under challenge before this Court.

Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025

06. Learned counsel appearing on behalf of the petitioners Rita Devi and Mangal Rai submitted that the decree is not executable and the same is nullity. Petitioner-Rita Devi was not aware about the pendency of the suit and for the first time, she came to know about the same at the stage of preparation of final decree. Thereafter, she filed an application with a prayer to add her as party, but the same has been rejected. However, petitioner-Mangal Rai has been made party at the stage of first appeal. Second Appeal filed by the petitioner- Mangal Rai was dismissed at the stage of admission itself vide order dated 02.05.2012 with observation that petitioner can make prayer in final decree proceeding to allot the purchased land in the share of his vendor. Learned counsel further submitted that though a direction has been passed in Title Appeal No. 40 of 2007 for preparation of preliminary decree, no such preliminary decree was prepared by the learned trial court as per direction of the first appellate court. But plaintiff filed an application for preparation of final decree on the basis of judgment and decree dated 31.05.2007 and 13.06.2007. Now the final decree has been prepared. But it is apparent from bare perusal of the decree that it was based on the decree passed by the learned Sub Jude-VII, Saran at Chapra dated 31.05.2007. Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 But there was no preliminary decree dated 31.05.2007, rather the partition suit was dismissed on 31.05.2007. On the basis of such final decree, the petitioner-Rita Devi has been added as a party in execution case for the first time showing that the decree has been executed against her and other persons. Thereafter, the petitioner-Rita Devi filed her objection under Order 21 Rule 97 of the Code, which was registered as Misc. Case No. 22 of 2013. The plaintiff/respondent no. 1 objected the institution of the miscellaneous case by filing objection petition dated 08.09.2015 under Order 21 Rule 102 of the Code stating therein that the said case was not maintainable since the petitioner-Rita Devi was a purchaser pendente lite. This objection was rejected by learned executing court vide order dated 06.01.2016 and rejection order was challenged by the plaintiff/respondent no. 1 in CWJC No. 2022 of 2016, which was heard and allowed by a learned Single Judge of this Court vide order dated 29.08.2016. Against the said order, the petitioner-Rita Devi filed review petition, which was disposed of with liberty to file a separate suit and consequently, the petitioner has filed Title Suit No. 174 of 2013. Learned counsel further submitted that apart from the fact that the final decree has been based on the judgment and decree of the learned trial court dated 31.05.2007 passed in Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 Partition Suit No. 209 of 1994, which is contrary to the fact as the original suit was dismissed. Further, Hira Bahelia died on 18.06.2008 and was substituted in the title appeal but in the final decree, he has been made a party in place of his legal heirs. The heirs/legal representatives of Hira Bahelia were not made parties in the final decree proceedings and it shows that no opportunity has been given to the petitioner-Rita Devi or heirs/legal representatives of her vendor by the learned Advocate Commissioner at the time of preparation of final decree. Learned counsel further submitted that petitioner-Rita Devi took these objections in her application before the learned trial court, the plaintiff/respondent no. 1 did not respond to these objections. Even other defendants namely, Bodha and Jhalaku also died and their heirs/legal representatives have not been made party. Therefore, the decree against dead persons is a nullity and as the petitioner-Rita Devi is the vendee claiming through one of the defendants who died during the pendency of final decree and was made party in final decree without substituting his heirs/legal representatives, the execution proceeding based on such final decree is illegal. But the learned trial court did not consider these facts and passed the orders and for this reason the impugned order dated 05.08.2017 is not Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 sustainable.

11. Learned counsel appearing on behalf of the plaintiff/respondent no. 1 vehemently contended that there is no illegality or infirmity in the impugned order and the same is a proper and valid order passed after due consideration of the relevant facts and law. Learned counsel further submitted that Title Partition Suit No. 209 of 1974 was dismissed and decreed against the plaintiff/respondent no. 1. However, in Title Appeal No. 40 of 2007, the learned first appellate court set aside the judgment and decree of the learned trial court and allowed the appeal holding that the plaintiff/appellant was entitled for 1/3 rd share in the suit land and ordered for preparation of preliminary decree. Thereafter, the decree of appellate court was prepared holding that the plaintiff was entitled to 1/3 rd share in the suit land. In the decree in appeal, the heirs/legal representatives of Hira Bahelia were parties. Jhalaku Rai was also a party. Once, the decree in appellate stage has been prepared, there is no merit in the contention of learned counsels for the petitioners that no Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 preliminary decree was prepared as decree of the learned trial court merged with the decree of learned first appellate court. When the application was filed for preparation of final decree, the learned trial court took into consideration these facts and mentioning about allowing of title appeal in favour of plaintiff/respondent confirmed the report of Survey knowing Pleader Commissioner and ordered for preparation of final decree. Learned counsel further submitted that if it has been wrongly mentioned in the final decree that the final decree was prepared in view of the preliminary decree passed by the learned Sub Judge-VII, Saran at Chapra dated 31.05.2007, the same is only a typographical error and could be corrected by the learned trial court at any point of time. Similarly, not mentioning the names of the heirs/legal representatives of deceased-defendant- Hira Bahelia also appears to be a oversight on part of the concerned official who prepared the final decree and it is incumbent upon the court concerned to make necessary correction since the plaintiff/respondent no. 1 is not at fault. Learned counsel further submitted that a number of litigation has taken place between the parties and this Court in Second Appeal No. 201 of 2009 has affirmed the order of the learned first appellate court regarding 1/3rd share of the Patna High Court C.Misc. No.1571 of 2017 dt.08-07-2025 plaintiff/respondent no.1. Learned counsel further submitted that earlier petitioner-Rita Devi came before this Court in Civil Misc. No. 523 of 2016 against the order of learned Sub Judge- IV, Chapra, when her petition filed under Order 21 Rule 9 of the Code was rejected. This Court dismissed the said civil miscellaneous petition. Now, in similar circumstances, the petitioner-Rita Devi and other petitioners have again approached this Court. The petitioners are pendente lite purchasers and they can only stake their claim against the share of their vendors and could have asked for allotment of their property in the share of their vendors, but they could not frustrate the execution proceeding initiated by the plaintiff/respondent no.1. But the petitioners by filing different applications and challenging the each and every orders of the learned executing court, have stalled the execution proceeding since the year 2013 and has deprived the plaintiff/respondent no. 1 from enjoying the fruit of the decree. Therefore, there is no merit in the petitions of the petitioners and the same be dismissed while affirming the impugned orders dated 05.08.2017 and 06.09.2017.