Jharkhand High Court
Objector/ vs Savitri Devi on 19 June, 2026
Author: Sanjay Prasad
Bench: Sanjay Prasad
Neutral Citation No.
(2026 JHHC 20030)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 25 of 2026
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Hareram Singh, aged about 69 years, son of Late
Chandrama Singh, res ident of Solanki House, Near
Bank of Baroda, Bhuyadih, Agrico East, P.O. Agrico,
P.S. Sitaramdera, Town Jamshedpur, District East
Singhbhum
….. Objector/Petitioner
Versus
1.Savitri Devi, aged about 62 years, wife of Late Kedar
Prasad,
2.Anil Kumar, aged about 34 years, son of Late Kedar
Prasad,
3.Nisha Kumari, aged about 28 years, daughter of Late
Kedar Prasad,
All residents of Kedar Began, Road No.5,
Sankosai, Dimna Road, P.O. & P.S. Mango, Towns
Jamshedpur, District East Singhbhum.
….. Decree Holders/Opp.Parties
———-
CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD
———-
For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Akhouri Avinash Kumar, Adv.
Mr. Ankit Vishal, Advocate
For the O.P.No. 1,2 & 3 : Mr. Girish Mohan Singh, Advocate
———
C.A.V.reserved on 13.05.2026 Pronounced on 19.06.2026
The instant Civil Revision has been filed on
behalf of the petitioner challenging the order dated
01.04.2026 passed in Execution Case No. 192 of
2023, arising out of Title Suit No. 70 of 2005, by the
learned Civil Judge (Senior Division-IV), Jamshedpur,
by which petition dated 13.10.2023 under Section
151 C.P.C., filed by the petitioner seeking dismissal
of the said Execution Case, has been dismissed as
not maintainable and the petitioner has prayed for
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(2026 JHHC 20030)
dismissal of the above Execution Case No. 192 of
2023 on the ground of res-judicata, inexecutability of
the decree, contravention of the order of the High
Court and suppression of material facts.
2. The case of the original plaintiff-namely
Kedar Prasad (Husband of O.P. No.1 and father of
O.P. No.s 2 and 3)-Decree Holder, in brief, is that he
entered into an agreement for sale of the suit
property with Smt. Bachhi Devi. When Smt. Bachhi
Devi allegedly refused to honour the said agreement,
Kedar Prasad instituted Title Suit No. 70 of 2005
before the Court of learned Civil Judge (Senior
Division)-II, Singhbhum East, Jamshedpur, praying
for a decree of specific performance of the agreement
of sale. The said suit was contested and was
ultimately decreed in favour of Kedar Prasad vide
judgment and decree dated 16.01.2015.
The operative portion of the decree is
significant and reads as follows: “that the suit be and
the same is hereby decreed in favour of the plaintiff
and the plaintiff is directed to pay Rs. 40,00,000/-
(Forty Lacs) (Rs. 30,00,000/- + Rs. 10,00,000/-) to
the defendant no. 1 within 60 days of this order in
two equal instalment of Rs. 20,00,000/-, i.e. 1st
installment to be paid within 30 days and second
installment to be paid within 30 days; receipt only
acknowledged by the defendant no.1; and the
defendant no. 1 is directed to execute a registered
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(2026 JHHC 20030)
sale deed on cost of the plaintiff within 30 days next
following the payment of second instalment; and then
defendants to handover the vacant possession of the
suit land to the plaintiff; failing which the plaintiff
will be at liberty to take recourse of law.”
In furtherance of the said decree, Kedar
Prasad filed Execution Case No. 11 of 2015 before the
Executing Trial Court for levy of execution of the
decree against Smt. Bacchi Devi. In the interregnum,
it came to light that Smt. Bacchi Devi had already
alienated the suit property in favour of the Petitioner-
Hare Ram Singh by means of two registered Sale
Deeds, being Sale Deed No. 4256 dated 02.08.2006
and Sale Deed No. 7208 dated 22.09.2007.
3. The case of the Objector-petitioner-
judgment debtor, in brief, is that he had purchased
the suit property from its owner Bachhi Devi by
means of two registered Sale Deeds, being Sale Deed
No. 4256 dated 02.08.2006 by paying an amount of
Rs.17,30,000/- (Rupees Seventeen lac thirty
thousand) (20.54 Katha land) and Sale Deed No.
7208 dated 22.09.2007 for amount of Rs.24,95,000/-
(39.00 Katha).
4. The further case of the Objector-
petitioner-judgment debtor No.1 is that when the
petitioner-Judgment Debtor No-1 Hareram Singh
came to learn about the decree passed in Title Suit
No. 70/2005 as well as about Execution Case No.
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(2026 JHHC 20030)
11/2015 filed to execute the said decree, then the
petitioner filed an application under Order 21 Rule 97
of CPC, registered as Misc Case No. 21 of 2015 before
the Executing Court i.e. before the court of learned
Civil Judge (Sr. Division), Jamshedpur praying for
appropriate reliefs including an order of
determination of his objection, order to protect his
possession as well as for an order setting aside the
judgment and decree passed in aforementioned suit
i.e. Title Suit No. 70/2005.
The Learned Court, after adjudication
of the objection of objector Hareram Singh (petitioner
herein), allowed his application filed under Order XXI
Rule 97 of CPC vide order dated 23.12.2022 and
ordered as follows:-
“Misc Case is hereby allowed with order
that the decree dated 28.01.2015 passed in the Title
Suit 70/2005 and subject matter of Execution Case
No. 11/2015 has no applicability against the applicant
Hare Ram Singh, without deciding the right, title and
interest of the Applicant with respect to the suit
property”.
On the same day i.e., on 23.12.2022
Civil Judge (Sr. Division -IV), Jamshedpur vide
another order passed in Execution Case No. 11/2015
dismissed the said execution case i.e. the first
execution case, being Execution Case no. 11 of 2015
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(2026 JHHC 20030)
holding that enforceability of said execution case
became infructuous.
However, in the meanwhile legal
representatives of deceased decree holder Kedar
Prasad, namely Smt. Savitri Devi, Anil Kumar & Ms.
Nisha Kumari were substituted in Execution case No.
11 of 2015 vide order dated 26-04-2022 on their
application and these legal representatives of
deceased decree holder Kedar Prasad prayed for
execution of the decree though execution of sale deed
in their favour but, learned Executing Court, i.e.
learned Civil Judge (Sr. Div), Jamshedpur, vide his
order dated 23.12.2022, dismissed said first
Execution Case no. 11 of 2015 holing that same
became infructuous in view of final order passed in
Misc Case No. 21 of 2015.
Though legal representatives of the
decree holder Kedar Prasad i.e. Savitri Devi & Ors.,
got themselves substituted in earlier Execution Case
No. 11 of 2015, vide order dated 26-04-2022, but
they did not got themselves impleaded or substituted
in Misc. Case No. 21 of 2015 (Order XXI Rule 97 CPC
proceeding) which shows their mala fide intention to
somehow get the decree executed circumventing the
claim of the petitioner (Hare Ram Singh), who is a
bona fide purchaser for value without notice and as
such decree for specific performance of contract was
not executable against such subsequent purchaser in
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(2026 JHHC 20030)
view of proviso appended to section19 (b) of Specific
Relief Act.
5. Then, against the order dated 23.12.2022
passed in Miscellaneous Case No. 21 of 2015, by the
learned Civil Judge (Senior Division), Jamshedpur,
the opposite party No.s 1 to 3 had preferred F.A. No.
67 of 2023 before this High Court, which was
dismissed being not maintainable vide order dated
31.07.2023 passed by the Co-ordinate Bench
(Hon’ble Mr. Justice Anil Kumar Choudhary) of this
Court.
In the light of the order dated 31.07.2023
passed in F.A. No. 67 of 2023 by this Court, the
petitioner had filed a petition on 27.08.2024 under
Order XXII Rule 4 of the Code of Civil Procedure read
with section 151 of the Code of Civil Procedure, which
was numbered as Civil Miscellaneous Case No.21 of
2015 with a prayer to substitute the deceased
opposite party i.e. Kedar Prasad by his legal heirs i.e.
opposite parties in the instant case, which was also
allowed vide order dated 20.12.2024 passed by the
Court of Sri Vishal Gaurav, learned Civil Judge
(Senior Division), Jamshedpur and the petitioner was
directed to take necessary steps for service summon
against the newly added opposite parties through
Nazarat as well as registered post, but inspite of
service of notice, the opposite parties did not appear
in the said Civil Miscellaneous Case No. 21 of 2015
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(2026 JHHC 20030)
and the said case was ordered to proceed ex-parte
against the opposite parties and vide Judgment dated
10.09.2025, the court of Sri Vishal Gaurav, Learned
Civil Judge (Senior Division), Jamshedpur allowed
the Civil Miscellaneous Case No. 21 of 2015.
However, opposite parties, without
approaching the learned Court below in view of the
order passed in F.A. No. 67 of 2023, has directly filed
an Execution Case No. 192 of 2023 for writ of delivery
of possession before the court of Learned Civil Judge
(Senior Division), Jamshedpur and in the said case
the petitioner had filed a petition dated 27.08.2024
under Section 151 C.P.C., seeking dismissal of the
said Execution Case.
Thereafter, learned Civil Judge (Senior
Division)-IV, Jamshedpur, without appreciating the
material available on record, has illegally dismissed
the petition filed by the petitioner vide order dated
01.04.2026 passed in Execution Case No. 192 of
2023, arising out of Title Suit No. 70 of 2005.
6. Heard learned Counsel for the
Petitioner, and Mr. Girish Mohan Singh, learned
counsel for the O.P. No. 1, 2 and 3.
7. It is submitted by the learned Counsel
for the petitioner that the impugned order dated
01.04.2026, passed by the learned Court below in
Execution Case No. 192 of 2023 is illegal and not
sustainable in the eye of law.
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(2026 JHHC 20030)
It is submitted that the learned
Executing Court has failed to consider that the
decree has become in-executable owing to rescinding
of contract in terms of Section 28(1) of Specific Relief
Act.
It is submitted that the learned
Executing Court has failed to consider that the
petitioner is bona fide purchaser for value without
having any notice and therefore, the decree has
become in-executable as the bona fide purchaser,
without notice, cannot be compelled to honour an
antecedent agreement for sale for which he had no
knowledge.
It is submitted that present execution
case is itself an abuse of process of law inasmuch as
vide order dated 31.07.2023 passed in F.A. No. 67 of
2023, this High Court had only permitted the decree
holder to get themselves impleaded in Misc. Case No.
21 of 2015 and to get said case re-opened and there
was no direction to file any fresh and independent
execution case.
8. It is submitted that the learned
Executing Court has failed to consider that the earlier
Execution Case No. 11 of 2015 was dismissed by the
Executing Court on 23.12.2022 on merits and
therefore, the present case is barred by res-judicata
under Section 11 of CPC.
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(2026 JHHC 20030)
It is submitted that the learned Executing
Court has failed to consider that the Decree Holder,
with deliberate intent to conceal the dismissal of
Executing Case No. 11 of 2015, withheld material
information at Column 6 of Form-6 (Appendix-E of
the CPC), which requires disclosure of particulars
and results of any previous execution application.
This suppression of material facts disentitles the
Decree Holders from obtaining any relief from the
Court.
It is submitted that the learned
Executing Court has failed to consider that the
Decree Holder Kedar Prasad had to deposit the
balance sale consideration of Rs.40,00,000/- (Rupees
Forty thousand only) in two instalments, i.e. Rs.
30,00,000/- (Rupees Thirty lac only) and
Rs.10,00,000/- (Rupees Ten lac only) within 60 days
from the date of the decree i.e. by 16.03.2015 at the
latest, but neither the original decree holder Kedar
Prasad during his life time, nor his legal
representatives after his death, ever made an
application under Section 28 of the Specific Relief Act
for extension of time so stipulated for depositing the
said amount of Rs.40,00,000/- (Rupees Forty lac
only).
9. It is submitted that after judgment
dated 16.01.2015 passed in Title Suit No. 70 of 2005,
said Kedar Prasad, i.e. the husband of O.P. No.1 and
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(2026 JHHC 20030)
father of the Opposite Party No.s 2 to 3 filed
execution case being Execution Case No. 11 of 2015.
10. It is submitted that against the order
dated 23.12.2022 passed in Miscellaneous Case No.
21 of 2015, by the learned Civil Judge (Senior
Division), Jamshedpur, the opposite party No.s 1 to 3
had preferred F.A. No. 67 of 2023 before this High
Court, which was dismissed being not maintainable
vide order dated 31.07.2023 passed by the Co-
ordinate Bench (Hon’ble Mr. Justice Anil Kumar
Choudhary) of this Court.
It is submitted that in the light of the
order dated 31.07.2023 passed in F.A. No. 67 of 2023
by this Court, the petitioner had filed a petition on
27.08.2024 under Order XXII Rule 4 of the Code of
Civil Procedure read with section 151 of the Code of
Civil Procedure, which was numbered as Civil
Miscellaneous Case No.21 of 2015 with a prayer to
substitute the deceased opposite party i.e. Kedar
Prasad by his legal heirs i.e. opposite parties in the
instant case, which was also allowed vide order dated
20.12.2024 passed by the Court of Sri Vishal Gaurav,
learned Civil Judge (Senior Division), Jamshedpur
and the petitioner was directed to take necessary
steps for service summon against the newly added
opposite parties through Nazarat as well as registered
post.
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(2026 JHHC 20030)
11. It is submitted that even after receiving
notice through proper service, the opposite parties
did not appear in the said Civil Miscellaneous Case
No. 21 of 2015 and the said case was ordered to
proceed ex-parte against the opposite parties and
vide Judgment dated 10.09.2025, the court of Sri
Vishal Gaurav, Learned Civil Judge (Senior Division),
Jamshedpur allowed the Civil Miscellaneous Case No.
21 of 2015.
It is submitted that the opposite
parties, without approaching the Learned Court
below in view of the order passed in F.A. No. 67 of
2023, has directly filed fresh Execution Case No. 192
of 2023 for writ of delivery of possession before the
court of Learned Civil Judge (Senior Division),
Jamshedpur, which is not maintainable.
12. In support of his contention, learned
counsel for the petitioner has relied upon the
following judgments:-
(i) (2017) 11 SCC 57, Para No.8 (Prem Jeevan
Versus K.S. Venkata Raman and Another),
(ii) 2023 SCC OnLine SC 184, Para 23
(Shyamala Versus Gundiur Masthan),
(iii) C.M.P. No.926 of 2024 passed by the Co-
ordinate Bench of this Court on 09.01.2025, Para
No.s 5, 6 and 7 (Om Prakash Chabra Vs. Sri
Bijay Kumar Sarawgi & Anr.)
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(2026 JHHC 20030)
13. Learned counsel for the petitioner further
submitted that even if wrong order is passed the
same is binding upon the parties after lapse of
certain period of time and in support of the same,
learned counsel for the petitioner has relied upon the
judgment in the case of Dr. Vidya Sagar Singh
Versus G.B. Pant University of Agriculture and
Technology and Others reported in (2019) SCC
OnLine Uttarakhand 473, at Para 12, 13 and 14.
14. It is further submitted by learned
counsel for the petitioner that the decree is in-
executable due to non-payment of remaining dues of
Rs.40,00,000/- (Rupees Forty Lakh only) and the
plaintiff had not filed any petition before the learned
Trial Court for extension of time in terms of Section 28
of Specific Relief Act.
It is submitted that the learned Trial Court
had directed the Plaintiff to pay Rs.40,00,000/-
(Rupees Forty lac only) vide judgment and decree
dated 16.01.2015 and 28.01.2015 respectively in T.S.
No.70 of 2005, but till date no payment has been
made by the Plaintiff to the Defendant.
In view of the above, order dated 01.04.2026
passed by the learned Trial Court in Execution Case
No. 192 of 2023 may be set aside and this Civil
Revision application may by allowed.
15. On the other hand, learned counsel for
the O.P. No. 1, 2 and 3, who are the substituted heirs
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(2026 JHHC 20030)
of the Original Plaintiff (Late Kedar Prasad) submitted
that the impugned order dated 01.04.2026, passed by
the learned Civil Judge (Senior Division-IV),
Jamshedpur is fit and proper and no interference from
this Court is required.
It is submitted that the Original-
Plaintiff- Kedar Prasad (i.e. the husband of O.P. No.1
and father of O.P. No. 2 and 3) had instituted T.S. No.
70 of 2005 against the Original Defendant Smt.
Bachhi Devi (Judgment-Debtor No.2) and one Ram
Kishore Singh and said Kedar Prasad had entered into
an agreement with said Bachhi Devi by paying Rs.
10,00,000/- (Rupees Ten Lac only) and the Original
Defendant Bachhi Devi was required to execute the
sale deed in favour of the Original Plaintiff on receiving
the balance amount of Rs.40,00,000/- (Rupees Forty
lac only) within 60 days.
It is submitted that the Plaintiff was
always ready and willing to execute his part of the
contract but the same was not executed by the
original defendant Bachhi Devi deliberately.
16. It is submitted that the Original
Defendants contested the suit by filing written
statement and the learned trial court by terms of the
judgment and decree dated 16.01.2015 and
28.01.2015 respectively decreed the suit filed by the
plaintiff directing the Defendant No.1 to execute and
register Sale Deed in favour of the plaintiff and the
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(2026 JHHC 20030)
plaintiff was directed to pay a sum of Rs.40,00,000/-
(Rupees Forty Lac) to the Defendant No.1 in two equal
installments within sixty days and the Defendants
were directed to handover the vacant possession of the
suit land to the plaintiff failing which the plaintiff will
be at liberty to take recourse of law and accordingly
decree was prepared by the learned trial court.
17. It is submitted that T.S. No. 70 of 2005
was decreed in favour of the original Plaintiff vide
judgment dated 16.01.2015 and decree dated
28.01.2015 and the original defendant Bachhi Devi
was directed to execute the sale deed in favour of the
original plaintiff Kedar Prasad.
It is submitted that the judgment
and decree passed by the learned trial court in Title
Suit No.70 of 2005 was never challenged by filing the
appeal or otherwise and the same became final,
conclusive and binding upon the parties.
18. It is submitted that later on the
original plaintiff-Decree Holder namely Kedar Prasad
had filed Execution Case No.11 of 2015 against said
Bachhi Devi for execution of the decree passed in the
said suit.
It is submitted that the petitioner
namely Hare Ram Singh had filed an application
under Order XXI Rule 97 of C.P.C. in the said
Execution Case and on the basis of which Misc. Case
No.21 of 2015 was registered which was wrongly
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Neutral Citation No.
(2026 JHHC 20030)
allowed vide order dated 23.12.2022 passed by the
learned Civil Judge (Senior Division), Jamshedpur.
It is submitted that during the
pendency of Execution Case No.11 of 2015 the original
Decree Holder namely Kedar Prasad had died and the
names of the legal heirs of the deceased namely Savitri
Devi, Anil Kumar and Nisha Kumari were substituted
vide order dated 26.04.2022 and the Execution Case
No.11 of 2015 had been dismissed by the learned
Executing Court in view of the order dated
23.12.2022, passed in Misc. Case No.21 of 2015.
19. It is submitted that the Opposite Party
Nos.1 to 3, being aggrieved by the order dated
23.12.2022, passed in Misc. Case No.21 of 2015
allowing the application filed by Hare Ram Singh
under Order XXI Rule 97 of the C.P.C., had filed First
Appeal No.67 of 2023 before the High Court of
Jharkhand and in the said F.A. No.67 of 2023 it was
held that the appeal is not maintainable as the
Impugned Order had been passed against a dead
person and it was observed as follows:-
“that it is made clear that this order will not
stand in the way of the appellants taking such steps as
permissible in law in the lower court to have the Decree
reopened and to have the legal representatives of the
Respondent No.1 namely Kedar Prasad of Misc. Case
No.21 of 2015 brought on record in that court”.
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20. It is submitted that pursuant to the
order passed by the High Court in First Appeal No.67
of 2013, the legal heirs of original Decree Holder had
filed fresh Execution Case being Execution Case
No.192 of 2023 for execution of the decree passed in
Title Suit No.70 of 2005. Thereafter, the petitioner
herein, filed an application under Section 114 of
C.P.C. praying therein to review the order dated
02.05.2024 and 30.05.2024 passed in the above
execution case debarring the petitioner to file show
cause which was dismissed by terms of order dated
09.08.2024 and the said order was not challenged by
the petitioner and the same became final.
21. It is submitted that the petitioner was
not a party in Title Suit No.70 of 2005 rather the order
passed under Order XXI Rule 97 C.P.C. in Misc. Case
No.21 of 2015 was challenged by the Decree Holders
before the High Court in F.A. No.67 of 2023 and it has
been held that the judgment itself is admittedly a
nullity having been passed in respect of a dead person
and as such it has been held by the High Court that
the judgment and order passed in Misc. Case No.21 of
2015 is nullity in the eye of law. It is submitted that
the petitioner is a stranger and the petitioner has no
locus standi to file any objection in the Execution Case
as he was not a party to the decree passed in Title Suit
No.70 of 2005.
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22. It is submitted that it is a settled
principle of law that the Executing Court cannot go
behind its decree and it has to execute the decree as
per its tenor. It is submitted that the Hon’ble Apex
Court has time and again directed the Executing
Court to execute the decree and dispose of the
Execution Case within six months and in the instant
case the Decree Holders are not getting the fruits of
the decree which has been passed long back in the
year 2015 and the same has attained its finality. It is
stated that the petitioner is a stranger to the decree
passed in Title Suit No. 70 of 2005 and he has no
locus standi to file any objection in the execution case
and as such the learned Executing Court has rightly
rejected the petition filled by the petitioner under
Section 151 of C.P.C.
23. In support of his contention, learned counsel
for the Opposite Parties has relied upon the judgments as
follows:-
(i) Brakewel Automotive Components (India)
Private Limited Versus P.R. Selvamj
Alagappan reported in 2017 5 SCC 371, Para
21, 22 and 23 and
(ii) M.S. Ananthamurthy and Another
Versus J. Manjula Etc. reported in 2025 SCC
OnLine SC 448 at Para 41 to 48.
Hence, in view of the above, this Civil
Revision Application may be dismissed.
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24. Perused the Lower Court Record of this
case and considered the submissions of both the sides.
25. It transpires that the Original Plaintiff,
i.e. husband of the Opposite Party No. 1 and father of
the Opposite Party No.2 and 3, namely Kedar Prasad,
since deceased, had filed said Title Suit No.70 of 2005
in the Court of learned Civil Judge (Senior Division),
East Singhbhum, Jamshedpur against said Bachhi
Devi and Ram Kishore Singh praying therein a decree
for specific performance of contract dated 21.02.2004
with respect to the lands measuring 043.30 Hectares,
i.e. 03 Bighas 05 Kathas appertaining to Plot Nos.
250, 251, 480, 488, 487, 489 and 490 of Khata
Nos.257, 404 and 727 situated at Mouza Baliguma,
P.S. Mango, Notified Area Committee, District East
Singhbhum in the Town of Jamshedpur and prayer
was made for a direction to the Defendant No.1 to
execute and register Sale Deed in favour of the
plaintiff with respect to the aforementioned property
failing which the same may be executed and registered
through the process of the court.
26. It reveals from the two sale deeds that
the Objector-petitioner had purchased approximately
20.54 Katha land by Sale Deed No. 4256 dated
02.08.2006 (Total area measuring 0.1357 hectare =
33.92 Decimal land and again purchased 25.80
Hecteare = 64.5 Decimal = One Bigha- 19 Katha of
Raiyati land vide Sale Deed No. 7208 dated
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22.09.2007, but he had no knowledge of the aforesaid
contract and/or suit for specific performance thereof,
i.e. the Title Suit No.70 of 2005 and/or decree passed
therein till mid of 2015.
27. It transpires from Para 3 of the judgment
dated 16.01.2015 passed in T.S. No. 70 of 2005 by the
learned Civil Judge, Senior Division-II, Jamshedpur that
the original defendants had appeared and filed the Written
Statement and had refuted the claim of the plaintiff
regarding the sale of the suit land. The defendant had also
stated that they had not received the amount. It was also
stated by the defendant that the Plaintiff had not paid the
sum of Rs.10,00,000/-(Rupees Ten lac only) as advance to
the defendant.
It has also been stated in Para 19 that the
defendant had replied to the legal notice dated 07.03.2005
(i.e. Ext.4) and 21.07.2005 (i.e. Ext.4/a) on 16.03.2005 (i.e.
Ext.5) and also replied on 02.08.2005 (i.e. Ext.5/a) and by
which it reveal that the defendant no.1-Bachhi Devi had
rescinded the agreement dated 21.02.2004.
28. It transpires that after the judgment and decree
dated 16.01.2015 and 28.01.2015 respectively was passed
in T.S. No. 70 of 2005 and when the petitioner learnt
about the said execution case, i.e. Execution Case No.
11 of 2015, then the petitioner immediately filed a
miscellaneous case being Miscellaneous Case No. 21 of
2015 under Order XXI Rule 97 of Code of Civil
Procedure for admission of the case and determination
of his objection and for a declaration that the decree
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dated 28.01.2015 passed in Title Suit No. 70 of 2005 in
consonance to judgment dated 16.01.2015 is not
binding against the applicant-petitioner.
Then, after hearing the parties, the court of
Sri Nishant Kumar, then learned Civil Judge (Senior
Division), Jamshedpur has allowed the Miscellaneous
Case No. 21 of 2015 vide order dated 23.12.2022 and
further observed that decree dated 28.01.2015 passed
in Title Suit No. 70 of 2005 and subject matter of
Execution Case No. 11 of 2015 has no applicability
against the applicant-petitioner Hare Ram Singh
without deciding the right, title and interest of the
applicant with respect to the suit property.
(Photocopy of the order dated 23.12.2022 is
enclosed as Annexure-S/3.)
29. The Operative portion of the order dated
23.12.2022, passed in Misc. Case No. 21 of 2015, reads as
follows:-
“In addition to the aforesaid default, the
decree holder ought to have filed separate suit for
setting aside the sale deed bearing no. 4671/4256
dated 02.08.2006 and sale deed no. 8187/7208
dated 21.09.2007 executed in favour of the applicant
in as much as the land has duly been registered in
favour of the applicant and unless the sale deed so
executed in his favour has been set aside, no further
sale deed can be executed pertaining to the same suit
land. Even if the entire statement of the decree holder
be taken to be true, he came to know about the20
Neutral Citation No.
(2026 JHHC 20030)execution of sale deed pertaining to the suit land on
08.06.2015, the day when the applicant filed the
Application under Order XXI Rule 97 of the Code of
Civil Procedure and as per Article 58 of Limitation Act,
the period of limitation for filing suit for setting aside
the sale deed is three year, which has already been
elapsed and thus, even decree holder lost his right to
file suit for setting aside the sale deed no. 4671/4256
dated 02.08.2006 and 8187/7208 dated 21.09.2007
been executed with respect to the suit property and as
such the decree so passed in the Title Suit No.
70/2005 cannot be executed.
Para 17:- Thus, on the basis of above
observation and discussions made hereinabove, this
Misc.Case is hereby allowed with order that the decree
dated 28.01.2015 passed in Title Suit No.70 of 2005
and subject matter of Execution Case No. 11 of 2015
has not applicability against the applicant Hare Ram
Singh without deciding the right, title and interest of
the Applicant with respect to the suit property.”
30. It transpires that learned Nishant Kumar,
learned Civil Judge, Senior (Division), Jamshedpur had
also dismissed the Execution Case No. 11 of 2015 on
23.12.2022.
31. It further transpires that the substituted
Decree Holders-i.e. O.P. No. 1 to 3 have challenged the
order dated 23.12.2022 (Annexure-S/3) passed in Misc.
Case No.21 of 2015 by Sri Nishant Kumar, learned Civil
Judge (Sr. Division), Jamshedpur by filing First Appeal
No.67 of 2023 before the High Court, however, the said
21
Neutral Citation No.
(2026 JHHC 20030)
First Appeal No. 67 of 2023 (Annexure-S/4 to the
supplementary affidavit) was dismissed on 31.07.2023 by
the Co-ordinate Bench (Hon’ble Mr.Justice Anil Kumar
Choudhary) of this Court as being not-maintainable.
(Web Copy of Order dated 31.07.2023
passed by the Jharkhand High Court in F.A. 67 of
2023 is enclosed as Annexure-S/4.)
32. Relevant part of the order dated 31.07.2023
passed in F.A. No. 67 of 2023 by the Co-ordinate Bench
(Hon’ble Mr. Justice Anil Kumar Choudhary) of this Court
is as follows:-
“Since the impugned judgment and
decree itself is admittedly a nullity having been
passed in respect of a dead person, hence, this Court
is of the considered opinion that this First Appeal is
not maintainable having been preferred against the
impugned judgment which is itself admittedly a
nullity.
Learned counsel for the appellants
submits that the appellants will approach the
learned First Appellate Court for incorporating the
legal representatives of the respondent No.1 namely
Kedar Prasad of Miscellaneous Case No. 21 of 2015.
Learned counsel for the appellants also places before
this Court the order passed by a coordinate Bench of
this Court in the case of Alimuddin Ansari Vs. Wasia
Khatoon, reported in (2004) 4 JCR 700 (Jhr.)
It is made clear that this order will
not stand in the way of the appellants taking such
steps as are permissible in law in the lower court to22
Neutral Citation No.
(2026 JHHC 20030)have the decree reopened and to have the legal
representatives of the respondent No.1 namely
Kedar Prasad of Miscellaneous Case No.21 of 2015
brought on record in that court.
Accordingly, this First Appeal is
dismissed, being not maintainable.”
33. It further transpires that even the original
plaintiff-Kedar Prasad had failed to deposit
Rs.40,00,000/- (Rupees Forty lac only) as was directed by
the learned Trial Court in its Judgment and decree dated
16.01.2015 and 28.01.2015 respectively passed in T.S.
No. 70 of 2005. The learned Trial Court had specifically
directed the original plaintiff to pay Rs. 40,00,000/-
(Rs.30,00,000/- + Rs.10,00,000/-) to Defendant No.1
within 60 days in two equal instalments of Rs.20,00,000/-
(Rupees Twenty lac only), i.e. first instalment to be paid
within 30 days and the second instalment to be paid
within next 30 days and only then Original Defendant No.
1-Bachhi Devi was directed to execute a registered sale
deed at the cost of the plaintiff within next 30 days,
following the payment of second instalment.
However, Original Plaintiff-Late Kedar Prasad and
even his legal representatives, i.e. O.P.No.1, 2 and 3 have
failed to do so at the time of filing Execution Case No.11 of
2015 and also till the filing of the Execution Case No. 192
of 2023 and even at the time of passing of the impugned
order dated 01.04.2026 in Execution Case No. 192 of
23
Neutral Citation No.
(2026 JHHC 20030)
2023. Thus, the plaintiff is not entitled to any relief on this
ground alone.
34. It has been held in the case of Prem Jeevan
Versus K.S. Venkata Raman and Another, reported in
(2017) 11 SCC 57, Para No.8 as follows:-
Para 8:- Reference to Order 20 Rule 12-A CPC shows
that in every decree of specific performance of a contract,
the court has to specify the period within which the
payment has to be made. In the present case, the said
period was two months from the date of the decree.
Para 9:- In absence of the said time being extended, the
decree-holder could execute the decree only by making
the payment of the decretal amount to the judgment-
debtor or making the deposit in the court in terms of the
said decree. In the present case, neither the said deposit
was made within the stipulated time nor extension of
time was sought or granted and also no explanation has
been furnished for the delay in the making of the
deposit. No doubt, as contended by the learned counsel
for the decree-holders, relying on the judgment of this
Court in Ramankutty Guptan v. Avara [Ramankutty
Guptan v. Avara, (1994) 2 SCC 642] , in an appropriate
case the court which passed the decree could extend the
time as envisaged in the Specific Relief Act, 1963. In the
present case no such steps have been taken by the
decree-holders.
Para 10:- In the above circumstances, the contention
advanced on behalf of the decree-holders, respondents
herein, that unless the judgment-debtor seeks rescission
of the contract in terms of Section 28 of the Specific Relief
Act, the decree remains executable in spite of expiry of
the period for deposit, with the only obligation on the
part of the decree-holders to pay interest, cannot be
accepted.
Para 11:- Section 28 of the Specific Relief Act is as
follows:
“28. Rescission in certain circumstances of contracts for
the sale or lease of immovable property, the specific
performance of which has been decreed.–(1) Where in
any suit a decree for specific performance of a contract24
Neutral Citation No.
(2026 JHHC 20030)for the sale or lease of immovable property has been
made and the purchaser or lessee does not, within the
period allowed by the decree or such further period as
the court may allow, pay the purchase money or other
sum which the court has ordered him to pay, the
vendor or lessor may apply in the same suit in which
the decree is made, to have the contract rescinded and
on such application the court may, by order, rescind the
contract either so far as regards the party in default or
altogether, as the justice of the case may require.
(2) Where a contract is rescinded under sub-section (1),
the court–
(a) shall direct the purchaser or the lessee, if he has
obtained possession of the property under the contract,
to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the
rents and profits which have accrued in respect of the
property from the date on which possession was so
obtained by the purchaser or lessee until restoration of
possession to the vendor or lessor, and, if the justice of
the case so requires, the refund of any sum paid by the
vendee or lessee as earnest money or deposit in
connection with the contract.
(3) If the purchaser or lessee pays the purchase money
or other sum which he is ordered to pay under the
decree within the period referred to in sub-section (1),
the court may, on application made in the same suit,
award the purchaser or lessee such further relief as he
may be entitled to, including in appropriate cases all or
any of the following reliefs, namely–
(a) the execution of a proper conveyance or lease by the
vendor or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such
conveyance or lease.
(4) No separate suit in respect of any relief which may
be claimed under this section shall lie at the instance of
a vendor, purchaser, lessor or lessee, as the case may
be.
(5) The costs of any proceedings under this section
shall be in the discretion of the court.”
25
Neutral Citation No.
(2026 JHHC 20030)
Para 12:- There is no doubt that the above provision
permits the judgment-debtor to seek rescission of a
contract and also permits extension of time by the court
but merely because rescission of contract is not sought
by the judgment-debtor, does not automatically result in
extension of time.
Para 13:- In view of the above, we allow these appeals,
set aside the order passed by the High Court and restore
the order of the executing court. No costs. The
respondents decree-holders will be entitled to withdraw
the amount deposited by them.
35. It has been held in P.Shyamala Versus
Gundiur Masthan reported in 2023 SCC OnLine SC
184, at Para 23 to 26 as follows:-
“Para 23:- Therefore, as observed by this Court, the
power under Section 28 of the Specific Relief Act is
discretionary and the Court has to pass an order as the
justice may require.
Para 24:- Applying the law laid down by this Court in
the aforesaid decision to the facts of the case on hand
and considering Section 28 of the Specific Relief Act, we
are of the opinion that the trial Court erred in exercising
the discretion in favour of the plaintiff and erred in
extending the time in favour of the plaintiff to deposit
the balance sale consideration of Rs. 15,00,000/- by
condoning the huge delay of 853 days, which as
observed hereinabove has not been explained
sufficiently at all. As observed hereinabove, after the
plaintiff was directed to deposit the balance sale
consideration of Rs. 15,00,000/-within a period of two
weeks from the date of ex-parte judgment and decree
dated 12.10.2013, which the plaintiff failed to26
Neutral Citation No.
(2026 JHHC 20030)deposit/pay, even no application for extension of time
under Section 148 CPC and Section 28 of the Specific
Relief Act was made thereafter within a reasonable
time and was made after a period of 853 days. Nothing
is on record that in between any notice was given to the
defendant to execute the sale deed as per the judgment
and decree on deposit of the balance sale
consideration. The application filed by the plaintiff
under Section 148 CPC and Section 28 of the Specific
Relief Act seeking extension of time to deposit the
balance sale consideration was hopelessly delayed. As
observed hereinabove, Section 28 of the Specific Relief
Act seeks to provide complete relief to both the parties
in terms of a decree of specific performance. Therefore,
the trial Court failed to exercise the discretion
judiciously in favour of the defendant and erred in
exercising the discretionary power in favour of the
plaintiff, that too with a delay of 853 days. The High
Court has erred in confirming the same and dismissing
the revision applications. Under the circumstances, the
order passed by the trial Court allowing the application
of the plaintiff being I.A. No. 732/2016 seeking
extension of time to deposit the balance sale
consideration deserves to be dismissed and I.A. No.
914/2017 filed by the defendant appellant under
Section 28 of the Specific Relief Act to rescind the
agreement to sell dated 9.5.2012 deserves to be
allowed.
27
Neutral Citation No.
(2026 JHHC 20030)Para 25:- However, at the same time, to strike the
balance between the parties the amount of Rs.
8,00,000/- paid by the plaintiff as an advance is to be
returned to the plaintiff with 12% interest per annum
from 9.5.2012 till the actual payment, within a period
of six weeks from today, failing which it shall carry
interest 18% per annum.
Para 26:- In view of the above and for the reasons
stated above, both these appeals succeed. The
impugned common judgment and order dated
17.01.2022 passed by the High Court dismissing the
revision applications and the common order passed by
the trial Court dated 29.06.2019 allowing I.A. No.
732/2016 filed by the plaintiff seeking extension of time
with a huge delay of 853 days and dismissing I.A. No.
914/2017 filed by the defendant to rescind the
agreement to sell dated 09.05.2012 are hereby quashed
and set aside. I.A. No. 732/2016 filed by the plaintiff
under Section 148 CPC and Section 28 of the Specific
Relief Act seeking extension of time with a huge delay of
853 days to deposit the balance sale consideration
stands dismissed. I.A. No. 914/2017 filed by the
appellant defendant under Section 28 of the Specific
Relief Act to rescind the agreement to sell dated
09.05.2012 on non-payment of/deposit of the balance
sale consideration by the plaintiff, which the plaintiff
was required to deposit/pay within a period of two
weeks from the date of ex-parte judgment and decree28
Neutral Citation No.
(2026 JHHC 20030)dated 12.10.2013, stands allowed. Agreement to sell
dated 09.05.2012 stands rescinded in exercise of
powers under Section 28 of the Specific Relief Act.
However, the appellant herein is directed to refund the
amount of Rs. 8,00,000/- to the plaintiff with 12%
interest from 09.05.2012 till the actual payment, within
a period of six weeks from today, failing which it shall
carry interest @ 18% per annum.”
36. Thus, in the above case, the Hon’ble
Supreme Court has deprecated the Trial Court for
exercising the discretion by condoning the delay of 853
days for depositing the balance amount by the plaintiff
and has also set aside the judgment of the High Court for
affirming the Trial Court’s judgment.
37. It is further evident that plaintiff-Opp. Party
No.s 1, 2 and 3 have failed to comply with the Column 6,
Form 6 (Appendix E of C.P.C.) because in the said form it
was incumbent upon the plaintiff -decree holder to
refer/mention the previous Execution Case decided
between the parties and no such application was filed by
plaintiff decree holder while filing Execution Case No. 192
of 2023 and thus, plaintiff-Opp.Party No.s 1, 2 and 3 are
guilty of suppression of fact which amounts to false
statement -“suppressio veri, suggestio falsi”.
38. It also appears that one cheque of
Rs.1,10,000/- (Rupees One lac Ten thousand only) was
dishonoured on 02.04.2004, which was given by the
plaintiff to the Defendant No. 1 and which was later on
29
Neutral Citation No.
(2026 JHHC 20030)
said to be paid by the plaintiff to Defendant No.1, but the
said act shows that the plaintiff had no sufficient money.
It is evident that the plaintiff had given
several dates, i.e. on 15.01.2005, 25.01.2005, 22.02.2005
for visiting the house of the original defendant-Bachhi
Devi, but he had not shown the mode of payment by
documentary evidence to the defendant no.1 or to show
that he was ready with the balance amount rather the
plaintiff-Decree Holder has taken an ornamental plea that
the original plaintiff has visited the house of the original
defendant on 15.01.2005, 25.01.2005, 05.02.2005,
22.02.2005 and 27.03.2005.
39. It further appears that even the defendant
no.1 has replied to the notice of the plaintiff on
02.08.2005 (Ext.5/a) through her counsel to take money
back as advance.
Thus, the contract/Agreement had already
been terminated by the original Defendant No.1-Bachhi
Devi in terms of Section 19 (b) and 28(1) of Specific Relief
Act by rescinding the contract between the parties. Thus,
the judgment and decree dated 16.01.2015 and
28.01.2015 respectively passed in T.S. No. 76 of 2005 was
not executable.
40. It is well settled that in a suit for specific
performance of contract it is the bounden duty of the
plaintiff that the plaintiff is always and still ready to pay
the balance consideration amount to the defendant in
order to show the performance of contract, but there is no
30
Neutral Citation No.
(2026 JHHC 20030)
such proper pleading and averment made even in Execution
Case No.11 of 2015 and Execution Case No. 192 of 2023
that the plaintiff was and is still ready and willing to pay the
balance consideration amount of Rs. 30,00,000/-(Rupees
Thirty lacs) at the time of filing Execution Case No.11 of
2015/Execution Case No. 192 of 2023.
41. It has been held in B. Vijaya Bharathi
Versus P. Savitri and Ors., reported in (2018) 11 SCC
761 at Para No. 15, 16 and 17 as follows:-
“Para 15:- Ram Awadh is a judgment by three
Judges of this Court overruling Jugraj Singh v. Labh
Singh, in which it was held that the plea that the
plaintiff is not ready and willing to perform the contract
is personal only to the seller defendant. Subsequent
purchasers cannot take this plea. This was stated to be
an erroneous view of the law by the three-Judge Bench,
and the judgment in Jugrag Singh was set aside as
follows: (Ram Awadh case, SCC p. 431. para 6)
“6. The obligation imposed by Section 16 is upon
the court not to grant specific performance to a plaintiff
who has not met the requirements of clauses (a), (b) and
(c) thereof. A court may not, therefore, grant to a plaintiff
who has failed to aver and to prove that he has
performed or has always been ready and willing to
perform his part of the agreement the specific
performance whereof he seeks. There is, therefore, no
question of the plea being available to one defendant
and not to another. It is open to any defendant to
31
Neutral Citation No.
(2026 JHHC 20030)
contend and establish that the mandatory requirement
of Section 16(c) has not been complied with and it is for
the court to determine whether it has or has not been
complied with and, depending upon its conclusion,
decree or decline to decree the suit. We are of the view
that the decision in Jugraj Singh case is erroneous.”
Para 16:- In the facts of M.M.S. Investments case³, after
the trial court decreed the suit, the property was
conveyed to the plaintiff. It is only thereafter that the
appellants in that case purchased the property. In the
facts of the present case, Defendants 2 and 3
purchased the property even before the suit for specific
performance was filed. In the present case there is no
conveyance in favour of the plaintiff after which
Defendants 2 and 3 purchased the property. The ratio
of M.M.S. Investments³ would therefore be of no
assistance to the appellant herein. On the other hand,
the three-Judge Bench decision in Ram Awadh would
apply on all fours.
Para 17:- It must also be noted that
though aware of two conveyances of the same property,
the plaintiff did not ask for their cancellation. This
again, would stand in the way of a decree of specific
performance for unless the sale made by Defendant 1 to
Defendant 2, and thereafter by Defendant 2 to
Defendant 3 are set aside, no decree for specific
performance could possibly follow. While Mr Rao may
be right in stating that mere delay without more would
32
Neutral Citation No.
(2026 JHHC 20030)
not disentitle his client to the relief of specific
performance, for the reasons stated above, we find that
this is not such a case. The High Court was clearly right
in finding that the bar of Section 16(c) was squarely
attracted on the facts of the present case, and that
therefore, the fact that Defendants 2 and 3 may not be
bona fide purchasers would not come in the way of
stating that such suit must be dismissed at the
threshold because of lack of readiness and willingness,
which is a basic condition for the grant of specific
performance.”
42. It is further evident that the Co-ordinate
Bench (Hon’ble Mr. Justice Anil Kumar Choudhary) of this
Court had directed the substituted Decree Holders-O.P.
No. 1, 2 and 3 vide order dated 31.07.2023 passed in F.A.
No. 67 of 2023, to take steps for revival of Miscellaneous
Case No. 21 of 2015 by impleading themselves as legal
heirs-parties, but the Plaintiffs-Opp. Party No.s 1, 2 and 3,
instead of doing so, have filed fresh Execution Case No.
192 of 2023 in contravention of the direction of the
Jharkhand High Court passed in F.A. No. 67 of 2023 on
31.07.2023.
43. Although, the plaintiff has claimed that the
sale is hit by the principles of Lis Pendens, but this Court
finds that even the plaintiff was not aware of Execution of
two Sale Deeds by the Original Defendant No.1-Bachhi
Devi to the Objector-judgment debtor-Petitioner herein.
33
Neutral Citation No.
(2026 JHHC 20030)
44. Even the plaintiff has not prayed for
cancellation of sale deed No. 4256 dated 02.08.2006 and
Sale Deed No. 7208 dated 22.09.2007 by filing Execution
Case No. 11 of 2015 and also Execution Case No. 192 of
2023 and as such, in absence of any such averment and
pleading and prayer for cancellation of sale deed, the
Execution Case No. 192 of 2023 is also not maintainable
as the judgment-Debtor-Objector has already purchased
the said property vide sale deeds, being Sale Deed No.
4256 dated 02.08.2006 and Sale Deed No. 7208 dated
22.09.2007 and got his name mutated and enjoying the
right, title and possession for around 19-20 years.
45. It has been held in Jagan Nath Vs.
Jagdish Rai and others reported in AIR 1998 SC 2028,
at Para 13 to 15 and 18 as follows:-
“Para 13:- ………………… Thus the plaintiff’s aforesaid
version regarding the talk with Kishan Chand as revealed
from the last lines of his cross-examination stands completely
falsified by his own witness Jagan Nath P.W. 4 and also by
his own laconic statement aforesaid. It is also obvious that this
version of the plaintiff does not stand the test of probability for
the simple reason that if that were so defendant No. 2 through
his guardian would not have entered into two suit transactions
piecemeal as reflected by the documents to which we have
made a reference earlier especially when it was in the interest
of defendant No. 1 not to divulge about the suit agreement to
these prospective purchasers as that would have sabotaged
his efforts to sell off his property and to encash his interest in
the suit property even by suffering a loss of Rs. 10,000/-, as
noted earlier. Defendant No. 1 was examined as D.W. 1. In his
cross-examination he stated that a partition suit was pending
between him, his brother and his father and that was
compromised on 2nd or 3rd January, 1974. It appears that
only thereafter that he sold off a part of the suit property to
Jagar Singh and thereafter another part to defendant No. 2.
34
Neutral Citation No.
(2026 JHHC 20030)D.2 W.1 Vidya Parkash son of Dev Raj was an attesting
witness to sale deed Ex. D-2 by which defendant No. 1 sold
his remaining 1/2 interest in the suit property to defendant
No. 2 for Rs. 30,000/-. Witness stated that at the time of the
document Kishan Chand was in the possession of the house.
Witness denied the suggestion that he was tendering false
evidence on account of his relationship with Kishan Chand.
Witness Jagtar Singh D.2 W.2 was an attesting witness to Ex.
D-1 as well as to sale deed Ex. D-4. D.2 W.3 Sardara Singh
was an attesting witness to Ex. D-1. As these transactions are
not in dispute we need not dilate on evidence of these
witnesses. Kishan Chand was examined as D.2 W.5. He is the
guardian of defendant No. 2. On the question about his
knowledge of the suit agreement he stated in his examination-
in-chief that he was not aware of any transaction between the
plaintiff and defendant No. 1 Jagan Nath, plaintiff or any
person never talked to him about agreement of sale in favour
of the plaintiff. This statement of his in his examination-in-
chief is not at all challenged in the cross-examination on behalf
of the plaintiff. He had stated in his examination-in-chief that
he had taken the house in dispute before sale as a tenant.
Earlier he took the house from defendant No. 1 Jagdish Rai
and later he started paying rent to mortgagee Rajinder Singh.
It has to be kept in view that Rajinder Singh was the
mortgagee in possession under usufructuary mortgage Ex. D-3
as noted earlier. Therefore, his version that earlier he was a
tenant of defendant No. 1 and thereafter started paying rent to
the mortgagee in possession Rajinder Singh stands well
corroborated by the registered Mortgage Deed Ex. D-3. In his
cross-examination it was brought out that no rent note was
executed by him in favour of Jagdish Rai, Jagir Singh
defendant No. 3 or Rajinder Singh, the mortgagee in
possession. But he re-affirmed that he used to pay Rs. 50/- as
rent, but the payment of rent was not entered in his account
books. Learned senior counsel Shri Sachar vehemently
contended in the light of this evidence that this witness cannot
be believed about his alleged tenancy of the suit property as
he had nothing to show that he had paid rent of Rs. 50/- per
month to any of the aforesaid persons. There was no
documentary evidence in this connection. It has to be kept in
view that this house was said to be occupied by the witness
Kishan Chand as a residential premises. He was not carrying35
Neutral Citation No.
(2026 JHHC 20030)on any business in the said premises. No such case is put up
by even the plaintiff. Therefore, merely because he had not
entered the payment of Rs. 50/- in his account books it would
not be a clinching circumstance for disproving defendant No.
2’s father’s tenancy. On the contrary in his cross-examination
he reiterated that he used to pay Rs. 50/- to Rajinder Singh as
the house was under mortgage with him. As noted earlier, this
part of his statement is fully corroborated by the clinching
documentary evidence of usufructuary mortgage Ex. D-3 in
favour of Rajinder Singh which had seen the light of the day
months prior to the suit agreement in favour of the plaintiff.
Our attention was invited by Shri Sachar, learned senior
counsel for the plaintiff, to the further evidence in cross-
examination of witness Kishan Chand to the effect that it is
correct that he was anxious to purchase the house prior to the
agreement but he did not know when the agreement was
executed. It is difficult to appreciate how the said statement
contra-indicates his theory of being a tenant of the suit house
or that it visits him with the knowledge of the suit agreement.
When he had clearly stated that he did not know when that
agreement took place, his statement that he was anxious to
purchase the house prior to the agreement only show that he
was anxious to purchase even prior to the date on which the
suit agreement came to be executed. That has reference to the
time of execution of such agreement and has nothing to do
with the knowledge about the suit agreement with defendant
No. 2’s guardian, as tried to be suggested by Shri Sachar for
the plaintiff. In the light of this evidence, therefore, learned
single Judge was right in his view that defendant No. 2’s
father was a sitting tenant of the suit house and because he
was anxious to purchase the house he purchased the same in
two instalments, as seen earlier. Shri Sachar, learned senior
counsel for the plaintiff in this connection submitted that if
defendant No. 2 was held to be a sitting tenant of the house it
would be obvious, as held by the trial Court, that he would
come to know about the suit agreement as the plaintiff had
stated that he had visited the suit house at the time of the
execution of the suit agreement. It is difficult to appreciate this
contention for the simple reason that when the plaintiff stated
in his deposition as P.W. 7 that he had visited the house which
was lying vacant at the time of the execution of the agreement,
his said version is found to be a false one, as discussed36
Neutral Citation No.
(2026 JHHC 20030)earlier. It is well established on record that as the suit house
was not vacant by the time suit agreement was executed as it
was already under usufructuary mortgage of Rajinder Singh,
plaintiff’s version that when he visited the house it was vacant
has to be held to be a concocted one. Consequently it must be
held that witness Kishan Chand was right when he contended
that he was a sitting tenant of the house who was paying rent
earlier to defendant No. 1 and thereafter to the usufructuary
mortgagee Rajinder Singh and that the statement of the
plaintiff that he visited the house at the time of suit agreement
was not believable. Consequently there was no occasion for
defendant No. 2’s father to ever come in contact_his version
that he had no talk with the plaintiff regarding the said
transaction nor did he talk about the same prior to his
purchase as deposed to in his examination-in-chief had
remained unchallenged in his cross-examination and,
therefore, this version of his was rightly accepted by the
learned Appellate Judge. When we turn to the rebuttal
evidence of plaintiff P.W. 7 we find that he has tried to make
out a new case which was not deposed to by him even earlier.
In his rebuttal evidence he stated that the day he went to see
the house in dispute it was Jagdish Rai who had the keys
with him and had shown the house after opening the door.
This version of his is completely falsified by the fact that the
house was in possession of usufructuary mortgagee or his
tenant defendant No. 2 and the keys thereof could never have
been with defendant No. 1. It, therefore, becomes clear that the
witness had no regard for truth. His further evidence in
rebuttal that he talked three times with Kishan Chand about
having entered into agreement with defendant No. 1 regarding
purchase of house is clearly falsfied by the fact that earlier
when he entered the box he never whispered about the same.
Not only that but in cross-examination at the stage of rebuttal
evidence he stated that he did not remember about his having
talk with his counsel about his aforesaid talk with Kishan
Chand. Plaint was, however, written at his instance. Neither in
the plaint nor in his earlier deposition he had ever stated to
that effect. It is difficult to appreciate how he missed to state
this vital aspect of the matter to his Advocate earlier when he
got his plaint drafted and also at the stage of his earlier
evidence on oath. It, therefore, becomes clear that at the stage
of rebuttal he tried to make out a new case which was neither37
Neutral Citation No.
(2026 JHHC 20030)pleaded by him nor deposed to earlier and it was celarly an
afterthought and a false version. In the light of the aforesaid
oral evidence, therefore, the conclusion reached by the learned
single Judge of the High Court that defendant No. 2 through
his gurdian was a bona fide purchaser for value without notice
of the suit agreement, stands well established. The
documentary as well as oral evidence leave no room for doubt
that the aforesaid findings are well sustained on the record of
the case and call for no intererence in the present appeal.
Para 14:- Learned senior counsel Shri Sachar for the plaintiff,
however, was right when he contended that the learned single
Judge of the High Court was in error when he took the view
that because Kishan Chand was a sitting tenant he had a
better right to purchase the property. Such a right of pre-
emption obviously was not even pleaded by defendant No. 2,
nor was it supported by learned senior counsel Shri Verma for
the contesting defendant, defendant No. 4. Learned senior
counsel Shri Sachar was also right when he contended that
the learned single Judge was in error when he took the view
that because the time for execution of the sale deed had
expired on 30th December, 1973 there was nothing wrong in
defendant No. 1 selling off the property in January, 1974
onwards. Shri Verma, learned senior counsel for the
respondents fairly stated that the said reasoning of the High
Court cannot be sustained in the light of Ex. P-2 extending the
time up to 30th June 1974. But the said errors demonstrated
by learned senior counsel Shri Sachar for the plaintiff from the
judgment of the learned single Judge of the High Court cannot
shake the main foundation of the finding reached by the
learned Appellate Judge, namely, that defendant No. 2’s father
Kishan Chand was a bona fide purchaser of the suit house
without notice of suit agreement.
Para 15:- Learned senior counsel for the appellant also invited
our attention to the written statement of defendant No. 1,
especially para thereof, wherein it is stated that plaintiff had
committed breach of contract, market had come down and due
to the fact that there was an agreement between the plaintiff
third persons were not willing to pay the market value. As a
matter of fact defendant No. 1 suffered a loss of Rs. 10,000/-
on account of breach of contract on behalf of the plaintiff.
Learned senior counsel for the appellant on the basis of these
averments of defendant No. 1 in his written statement,38
Neutral Citation No.
(2026 JHHC 20030)submitted that when defendant No. 1 himself had come with a
case that third parties were not willing to pay market value
because of the agreement of defendant No. 1 with the plaintiff
it would be obvious that a third party like defendant No. 2
must have knowledge about the agreement. It is difficult to
appreciate this contention. Whatever defendant No. 1 might
have stated in the written statement, at the stage of his
evidence before the Court when defendant No. 1 examined
himself as D.W. 1 no such case was put to him on behalf of the
plaintiff. Nor did he state to that effect in his evidence. Not only
that similar case was not even put to defendant No. 2’s
guardian Kishan Chand when he was examined as D.2 W.5.
Therefore, the bald assertion of defendant No. 1 in the written
statement merely remained as such. It was next contended
that when defendant No. 1 sold a part of the suit property for
Rs. 20,000/- to Jagir Singh as per Ex. D-1 on 23rd January,
1974 it was most unnatural for Jagir Singh to sell the very
same property within two months on 27th March, 1974 as per
Ex. D-4 to defendant No. 2 by getting a profit only of Rs.
1,000/- and, therefore, all these documents appear to be a
part of a common conspiracy to frustrate the plaintiff’s
agreement. We fail to appreciate how this contention can at all
be advanced by learned senior counsel for the appellant to
foist knowledge of plaintiff’s agreement with defendant No. 1
on defendant No. 2. Whether Jagir Singh was justified in
selling within two months the property purchased by him by
getting profit only of Rs. 1,000/- or not, is a circumstance
which has no bearing on this moot question. On the contrary it
suggests that at the relevant time when defendant No. 2 was
a sitting tenant Jagir Singh might have been persuaded to sell
off the property purchased by him by getting profit of only Rs.
1,000/-. That also indicates that the price of property might
not have got higher escalation in those days and the real
estate market appeared to have remained almost steady. To
say the least it is an equivocal circumstances which cannot
conclusively establish that defendant No. 2 had knowledge of
plaintiff’s agreement when he entered into this transaction
with Jagir Singh. It is of course true, as rightly pointed out by
learned senior counsel for the appellant Shri Sachar, that the
time limit for execution of the sale document as per plaintiff’s
agreement with defendant No. 1 which was to expire on 30th
December, 1973 was extended at the request of the vendor39
Neutral Citation No.
(2026 JHHC 20030)defendant No. 1 up to June, 1974. But that would not
necessarily show that when defendant No. 1 entered into sale
deed in favour of defendant No. 2 as per document Ex. D-2
dated 2nd April, 1974 defendant No. 2 must have got
knowledge about the plaintiff’s agreement by that time. Nor
would it show that defendant No. 1 when he sold the half of
its interest in the suit property to Jagir Singh as per Ex. D-1 on
23rd January, 1974 he would have conveyed to Jagir Singh
that there was already an agreement entered into by
defendant No. 1 with the plaintiff. On the contrary, as seen
earlier, it is probable that he would never convey this fact
either to Jagir Singh or to defendant No. 2 as then they would
get scared and would not like to enter into sale transactions
and pay consideration money to defendant No. 1 pursuant to
those two sale documents. Consequently even on the
touchstone of broad probabilities it is difficult to appreciate
how it could be said that defendant No. 2 must have got
knowledge of the suit agreement when he purchased part of
the suit property from defendant No. 1 or that his vendor Jagir
Singh had knowledge about the suit agreement when
defendant No. 1 sold his half interest in the suit property to
said Jagir Singh.
Para 18:- Before parting with this appeal it may be mentioned
that Shri Verma, learned senior counsel for defendant No. 4 in
order to buy peace and to put an end to this litigation fairly
stated on behalf of defendant No. 4 that even though plaintiff
has been awarded damages of Rs. 10,000/- against
defendant No. 1 by the learned single Judge and which decree
has been confirmed by the Division Bench of the High Court,
defendant No. 4 would not mind in paying an amount of Rs.
1,00,000/- to the plaintiff to avoid heart-burning, if any, for the
plaintiff. We appreciate this fair stand taken by learned senior
counsel for defendant No. 4 and accordingly while disposing of
this appeal and confirming the judgment and order passed by
the learned single Judge and the Division Bench of the High
Court, grant additional benefit to plaintiff-appellant by way of
fair concession from defendant No. 4 to the effect that
defendant No. 4 shall pay an amount of Rs. 1,00,000/- to the
plaintiff towards full and final satisfaction of his claim for
damages in the present case in lieu of decree for specific
performance. This will be in addition to the decree of Rs.
10,000/- of damages with interest already awarded to the40
Neutral Citation No.
(2026 JHHC 20030)plaintiff. Appeal stands dismissed subject to the modification
that the plaintiff’s suit will also stand decreed to the extent of
Rs. 1,00,000/- against defendant No. 4. Appeal disposed of
accordingly. In the facts and circumstances of the case there
will be no order as to costs.”
46. It further transpires from the impugned
order passed by the learned Trial Court that even the
learned Trial Court has admitted in Para 9.3 of its order
regarding concealment of material fact in Column 6 of
Form 6 (Appendix E of C.P.C.) and had noticed that the
plaintiff has withheld material information at Column 6 of
Form 6 (Appendix E of C.P.C.), which requires disclosure
of particulars and result of any previous Execution
Application.
However, the learned Trial Court has
deliberately ignored the said suppression in Para 28 to 30
of its order.
47. It is further evident that even the learned
Trial Court has noticed regarding inexecutibility of decree
under Section 28 of Specific Relief Act at Para 9.4 of the
impugned order, but the same was also ignored by the
learned Trial Court in Para 25 to Para 27 of its impugned
order by observing that the legal position laid down in
Prem Jeevan Versus K.S. Venkata Raman and Another,
reported in (2017) 11 SCC 57 and P. Shyamala Versus
Gundiur Masthan reported in 2023 SCC OnLine SC 184 is
a correct statement of law and also admitted that the
Executing Court does not dispute the legal principles but,
instead of the same the learned Executing Court, i.e.
learned Civil Judge (Senior Division)-IV, Jamshedpur by
41
Neutral Citation No.
(2026 JHHC 20030)
rejecting the petition dated 27.08.2024 in Execution Case
No. 192 of 2023.
48. The petitioner has relied upon Durga
Prasad v. Deep Chand, reported in AIR 1954 SC 75 and
Rathnavathi v. Kavita Ganashayamadas reported in
(2015) 5 SCC 223 before the learned Trial Court in
Execution Case No. 192 of 2023 on the point that no writ
of delivery of possession can issue directly against him in
the absence of such a sale deed, however, the learned
Trial Court has observed that principles enumerated in
the above cases is not applicable in the facts and
circumstances of this Case on the principles of Lis
Pendens.
49. Thus, the purchaser had no prior
knowledge of purchase and the petitioner was not aware of
pendency of Civil Suit between the plaintiff-Kedar Prasad
and Defendant No. 1 and 2, namely Bachhi Devi and Ram
Kishore Singh respectively.
The plaintiff had not visited even the said suit
properties till 2015 after entering into the agreement in
the year 2004 on 21.02.2004, otherwise Original Plaintiff-
Decree Holders would be aware of transfer of the suit
properties.
50. It further reveals from the Trial Court
record that in the light of observation made by the Co-
ordinate Bench of this Court in F.A. No. 67 of 2023, the
Trial Court, learned Civil Judge, Senior Division,
Jamshedpur, vide order dated 20.12.2024 passed in
42
Neutral Citation No.
(2026 JHHC 20030)
Misc. Case No. 21 of 2015 has allowed the application of
the petitioner (Objector-Hare Ram Singh) by directing
that the order passed against Opposite Party No.1 be re-
opened and further directed that the O.P. No.1, Kedar
Prasad be substituted by his legal heirs-1. Savitri, wife of
Kedar Prasad, 2. Anil Kumar, son of Kedar Prasad and
Ms. Nisha Kumari, daughter of Late Kedar Prasad and
the applicant was directed to take necessary step for
service of summon against the newly added opposite
party through Nazarat as well as registered post.
(Photocopy of the order dated 20.12.2024
passed in Civil Miscellaneous Case No.21 of 2015 is
enclosed as Annexure-S/5.)- last para.
The operative part of the order dated
20.12.2024, passed in Misc. Case No. 21 of 2015, by the
learned Civil Judge, Senior Division, Jamshedpur, is as
follows:-
“Having regard to the facts on record and
circumstances, petition stands allowed.
Judgment/order passed against the opposite party
no.1 is reopened. Let deceased O.P no. 1 Kedar
Prasad be substituted by his legal heirs 1. Savitri
Devi, wife of Kedar Prasad, 2. Anil Kumar son of
Late Kedar Prasad and 3. Ms.Nisha Kumari
daughter of Late Kedar Prasad along with the
address as mentioned in the petition. Applicant is
directed to take necessary step for service of
summon against the newly added opposite party
through Nazarat as well as registered post.
43
Neutral Citation No.
(2026 JHHC 20030)Put up on 20.1.25 for step of applicant.”
51. However, in the meantime the Decree
Holder-O.P. No.s 1 to 3-Smt. Savitri Devi, Anil Kumar
and Ms. Nisha Kumari filed another Execution Case,
being Execution Case No. 192 of 2023 on 04.09.2023
against the judgment-debtor Hare Ram Singh (i.e. the
petitioner herein) Smt. Bachhi Devi and Ram Kishore
Singh in the Court of learned Civil Judge, Senior
Division, Jamshedpur for possession of decretal
premises decreed by T.S. No. 70 of 2005.
52. It reveals that the above case, i.e.
Execution Case No. 192 of 2023 was admitted on
06.10.2023 and notices etc. were issued. However, the
judgment Debtor No.1-Hare Ram Singh (i.e. the
petitioner in the instant civil revision) had appeared on
12.02.2024, but the vendor, i.e. O.P. No.2-Bachhi Devi,
and O.P. No.3-Ram Kishore Singh did not appear.
However, even after service of Notice in
the said Execution Case No. 192 of 2023, the vendors
of the petitioner did not appear and as such an ex-parte
proceeding was made against them although it was not
drawn in the ordersheet of the Execution Case No. 192
of 2023.
53. In the meantime, the Execution Case No.
192 of 2023 continued further after filing of petition
under Order 21 Rule 35 of C.P.C. by the Decree Holder-
Respondents.
44
Neutral Citation No.
(2026 JHHC 20030)
54. It further reveals that in the meantime
vide order dated 09.08.2024 passed by Shri Ravi
Shankar Pandey, Civil Judge (Sr.Div.)-IV, Jamshedpur,
the review application dated 10.06.2024 filed under
Section 114 of C.P.C. by the judgment-Debtor-
Petitioner Hare Ram Singh was dismissed.
It further reveals that even the petitioner
was debarred from filing show-cause in the said
Execution Case No. 192 of 2023, although he had
pointed out certain circumstances of delay, i.e. delay in
getting certified copy of order and other miscellaneous
reasons.
55. It is further evident that even the
petitioner had filed an application under Section 114 of
C.P.C. on 10.06.2024 in Execution Case No.192 of
2023 to recall order dated 02.05.2024 and 30.05.2024.
The same cannot be said to be improper as the party
has got right to file the review petition for recall/review
of any order passed by the trial Court.
Thus, there was no bar for the petitioner
to file Review Petition under Section 114 of C.P.C. to
recall the order dated 02.05.2024 and 30.05.2024
passed by the learned Civil Judge, Senior Division,
Jamshedpur.
56. Thereafter, the Judgment-Debtor-1, i.e.
the petitioner-Hare Ram Singh filed petition under
Section 151 of C.P.C. on 27.08.2024.
45
Neutral Citation No.
(2026 JHHC 20030)
It was also stated in the said petition
dated 27.08.2024 that the present Judgment Debtor
Hare Ram Singh-Objector was not impleaded as a party
in Title Suit No.70 of 2005 and he had no knowledge of
T.S. No. 70 of 2005 till mid of 2015.
57. It further transpires that the petitioner-
Judgment Debtor-Objector had filed Misc. Case No. 21
of 2015 with respect to Execution Case No. 11 of 2015,
which was allowed on 23.12.2022 earlier. However,
after the observation of the Jharkhand High Court vide
order dated 31.07.2023 passed in F.A. No. 67 of 2023,
the Misc. Case No. 21 of 2015 was got reopened by the
petitioner-Objector-Judgment Debtor No.1 and in that
case the plaintiff-decree holders-O.P. No.1, 2 and 3
were substituted as O.P. No.1a, 1b and 1c respectively
as legal heirs of Late Kedar Prasad and thereafter, the
learned Civil Judge, Senior Division, Jamshedpur, vide
order dated 10.09.2025 has held that the petitioner
Hare Ram Singh has purchased the said land from
Bachhi Devi by registered sale deed dated 02.08.2006
and 21.09.2007 respectively and the names were
mutated over the lands of Khata No. 727, Plot No.s 487,
489 and 490 and even correction slips with respect to
Khatan no.727, Plot No. 487, 489, 490 were issued and
rent receipts were also issued for Khata No. 404
and Khata No. 727, (i.e. Ext.2, Ext.3, Ext.4, Ext.4/1,
Ext.5, Ext.5/1 respectively) and the learned Civil
Judge, Senior Division has allowed the Civil Misc.
46
Neutral Citation No.
(2026 JHHC 20030)
Case No. 21 of 2015 vide judgment dated 10.09.2025
by observing as follows:-
“Para 27:- Having regard to the facts and
circumstances, point of determination no.I and II have
been decided in favour of the applicant. Applicant
being the purchaser of decretal/suit property for
value and has paid money in good faith and without
notice of original contract. Therefore, he entitled for
relief and decree passed in T.S. no. 70 of 2005 is not
binding upon him.
Such being position, it is, hereby
ORDERED
that the present misc. case preferred by
the applicant is hereby allowed against the
opposite party nos. 1(a), 1(b), 1(c), 2 and 3.
Further it is hereby ordered that interest of
applicant is protected under the provision of
section 19(b) of the Specific Relief Act, 1963
being transferee of the value and has been paid
money in good faith and without notice of
original contract. Therefore, decree dated
16.01.15 passed in T.S. no. 70/2005 will not be
binding upon the applicant. Under the provisions
of Order 21 Rule 103 CPC this order shall have
the same force as decree. As to the facts and
circumstances both parties shall bear their own
cost. ”
47
Neutral Citation No.
(2026 JHHC 20030)
(Photocopy of the Judgment dated 10.09.2025
is enclosed as Annexure-S/1 to supplementary affidavit
dated 27.04.2026.)
58. However, the substituted decree holders-
O.P. No. 1, 2 and 3 have not challenged the judgment
dated 10.09.2025, passed in Civil Misc. Case No. 21 of
2015 by Vishal Gaurav, Civil Judge (Sr. Division),
Jamshedpur rather they continued to proceed with
Execution Case No. 192 of 2023, which is not
maintainable.
59. It has been held in Brakewel
Automotive Components (India) Private Limited
Versus P.R. Selvamj Alagappan, reported in (2017) 5
SCC 371, Para 21, 22 and 23 as follows:-
“Para 21:- As it is, Section 47 of the Code
mandates determination by an executing court,
questions arising between the parties or their
representatives relating to the execution, discharge or
satisfaction of the decree and does not contemplate
any adjudication beyond the same. A decree of court of
law being sacrosanct in nature, the execution thereof
ought not to be thwarted on mere asking and on
untenable and purported grounds having no bearing
on the validity or the executability thereof.
Para 22:- Judicial precedents to the effect that the
purview of scrutiny under Section 47 of the Code qua a
decree is limited to objections to its executability on the
ground of jurisdictional infirmity or voidness are
plethoric. This Court, amongst others in Vasudev48
Neutral Citation No.
(2026 JHHC 20030)Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence
enunciated that only a decree which is a nullity can be
the subject-matter of objection under Section 47 of the
Code and not one which is erroneous either in law or
on facts. The following extract from this decision seems
apt: (SCC pp. 672-73, paras 6-7)
“6. A court executing a decree cannot go behind the
decree: between the parties or their representatives
it must take the decree according to its tenor, and
cannot entertain any objection that the decree was
incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a
decree even if it be erroneous is still binding between
the parties.
7. When a decree which is a nullity, for instance,
where it is passed without bringing the legal
representative on the record of a person who was
dead at the date of the decree, or against a ruling
prince without a certificate, is sought to be executed
an objection in that behalf may be raised in a
proceeding for execution. Again, when the decree is
made by a court which has no inherent jurisdiction
to make it, objection as to its validity may be raised
in an execution proceeding if the objection appears
on the face of the record: where the objection as to
the jurisdiction of the court to pass the decree does
not appear on the face of the record and requires
examination of the questions raised and decided at
the trial or which could have been but have not been
raised, the executing court will have no jurisdiction to49
Neutral Citation No.
(2026 JHHC 20030)entertain an objection as to the validity of the decree
even on the ground of absence of jurisdiction.”
Para 23:- Though this view has echoed time out of
number in similar pronouncements of this Court, in
Dhurandhar Prasad Singh v. Jai Prakash University,
while dwelling on the scope of Section 47 of the Code, it
was ruled that the powers of the court thereunder are
quite different and much narrower than those in
appeal/revision or review. It was reiterated that the
exercise of power under Section 47 of the Code is
microscopic and lies in a very narrow inspection hole
and an executing court can allow objection to the
executability of the decree if it is found that the same is
void ab initio and is a nullity, apart from the ground that
it is not capable of execution under the law, either
because the same was passed in ignorance of such
provision of law or the law was promulgated making a
decree unexecutable after its passing. None of the above
eventualities as recognised in law for rendering a decree
unexecutable, exists in the case in hand. For obvious
reasons, we do not wish to burden this adjudication by
multiplying the decisions favouring the same view.”
60. So far as the judgment reported in
Brakewel Automotive Components (India) Private
Limited Versus P.R. Selvamj Alagappan reported in
2017 5 SCC 371, relied upon by the learned counsel for
the O.P.No. 1 to 3, is concerned, the same is not
applicable also on the facts and in the circumstances of
this case because in the above case one civil suit was filed
for recovery of Rs.20,94,953/- from the concerned
50
Neutral Citation No.
(2026 JHHC 20030)
respondent, arising from the business transactions
between the parties. The issue was related to payment of
business money and the defendant-respondent had
appeared, but could not file his written statement and his
defence was struck off and the civil suit was decided in
favour of the plaintiff appellant.
The said decree was challenged by filing
an defective appeal, which was later on withdrawn by the
concerned respondent. In the meantime, the plaintiff-
appellant had filed execution petition to execute the decree
and only thereafter, an application for review was filed by
the respondent before the High Court seeking to reply the
judgment and order dated 16.12.2013.
Thus, the above judgment is not applicable
on the facts and in the circumstances of the case.
61. So far as judgment passed in M.S.
Ananthamurthy and Another Versus J. Manjula Etc
reported in 2025 SCC OnLine SC 448, relied upon by the
learned counsel for the O.P.No. 1 to 3, is concerned, the
same is not applicable on the facts and in the
circumstances of this case because in the above case the
following question of law has been framed by Hon’ble the
Supreme Court at Para 25, which is as follows:-
“25. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
following questions fall for our consideration:
a. Whether the agent, A. Saraswathi, by virtue of being
a holder of the General Power of Attorney along with
Agreement to Sell had any right, title or interest in the
subject-matter of the agency, to execute the registered
sale deed dated 01.04.1998 in favour of her son i.e.,51
Neutral Citation No.
(2026 JHHC 20030)the appellant no.2, after the death of the principal, on
30.01.1997?
b. Whether it was obligatory for the answering
respondent to challenge the execution and validity of
this General Power of Attorney and the Agreement to
Sell dated 04.04.1986 and a further prayer to declare
that the registered sale deed dated 01.04.1998 is
valid, non-est or illegal in O.S. 133/2007?
The above question was answered by the Hon’ble
Supreme Court at Para 47, 48, 56 and 59 as follows:-
“Para 47:- It is a settled law that a transfer of immovable
property by way of sale can only be by a deed of
conveyance. An agreement to sell is not a conveyance. It is
not a document of title or a deed of transfer of property and
does not confer ownership right or title. In Suraj Lamp [Suraj
Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1
SCC 656 : (2012) 1 SCC (Civ) 351 : (2012) 340 ITR 1 : (2012)
169 Comp Cas 133] this Court had reiterated that an
agreement to sell does not meet the requirements of Sections
54 and 55 of the TPA to effectuate a “transfer”.
Para 48:- From the independent reading of the PoA and
the agreement to sell, the submissions of the appellants fail
on two grounds, first, the PoA is general in nature and does
not secure agent’s right in the subject-matter of the agency,
and secondly, an agreement to sell simpliciter does not
confer ownership in the immovable property so as to
transfer a better title to anyone else.
Para 56:- The practice of transferring an immovable
property vide a GPA and agreement to sell has been
discouraged by the following observations of this Court
in Suraj Lamp [Suraj Lamp & Industries (P) Ltd. (2) v. State
of Haryana, (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351 :
(2012) 340 ITR 1 : (2012) 169 Comp Cas 133] . The
relevant observations are reproduced hereinbelow: (SCC p.
667, para 24)
“24. We therefore reiterate that immovable property can
be legally and lawfully transferred/conveyed only by a
registered deed of conveyance. Transactions of the nature
of “GPA sales” or “SA/GPA/will transfers” do not convey
52
Neutral Citation No.
(2026 JHHC 20030)
title and do not amount to transfer, nor can they be
recognised or valid mode of transfer of immovable property.
The courts will not treat such transactions as completed or
concluded transfers or as conveyances as they neither
convey title nor create any interest in an immovable
property. They cannot be recognised as deeds of title,
except to the limited extent of Section 53-A of the TP Act.
Such transactions cannot be relied upon or made the basis
for mutations in municipal or revenue records. What is
stated above will apply not only to deeds of conveyance in
regard to freehold property but also to transfer of leasehold
property. A lease can be validly transferred only under a
registered assignment of lease. It is time that an end is put
to the pernicious practice of SA/GPA/will transactions
known as GPA sales.”
(emphasis supplied)
Para 59:- Where a finding on an issue of title is not
necessary for deciding the question of possession and the
grant of an injunction, or where no issue on title has been
framed to decide a suit for injunction, any observation or
decision on title would be incidental and collateral and will
not operate as res judicata. However, findings on an issue
of title in an earlier suit will operate as res judicata in a
subsequent suit where the question of title is directly and
substantially in issue in a suit for injunction.”
Thus, the above judgment is not applicable
on the facts and in the circumstances of this case.
62. It is further evident that the Co-ordinate
Bench (Hon’ble Mr. Justice Anil Kumar Choudhary) of
this Court, vide order dated 31.07.2023 passed in the
First Appeal No. 67 of 2023 had directed the Decree
Holders-O.P.No. 1, 2 and 3 herein to get the case,
Miscellaneous Case No. 21 of 2015, re-opened, but they
failed to do so, rather they have filed fresh Execution
Case No. 192 of 2023 before the Executing Court, i.e.
learned Civil Judge, Senior Division-II, Jamshedpur, by
53
Neutral Citation No.
(2026 JHHC 20030)
concealing material information, which was to be
disclosed at Column 6 of the prescribed form of
execution i.e. Form 6 of App-E of CPC, wherein the
decree holders were bound to disclose the details of
previous application with date and result thereof, but
they deliberately failed to do so and had concealed the
fact of the dismissal of earlier Execution Case No. 11 of
2015.
63. This Court has called for the legible
scanned copy of the Lower Court Record vide order
dated 06.05.2026, however, the learned Trial Court, i.e.
the Court of Ms. Avanika Gautam, Civil Judge (Senior
Division)-IV-cum-J.M.F.C., Jamshedpur has sent the
Lower Court Record of Execution Case No.192 of 2023
only.
However, the Court below has not sent the
original record of T.S. No. 70 of 2005 and Execution
Case No. 11 of 2015.
64. It further reveals that the judgment-
Debtor Hare Ram Singh-Petitioner-Objector has taken
the plea in his petition dated 27.08.2024 filed in
Execution Case No. 192 of 2023 that the decree holder
has not challenged the order dated 23.12.2022 passed
in Execution Case No. 11 of 2015, which was dismissed
by learned Civil Judge, Senior Division-II, Jamshedpur.
65. However, as per provisions of the Section
137 of the Limitation Act, the decree holders had
forfeited their right to seek extension of time as
54
Neutral Citation No.
(2026 JHHC 20030)
contemplated under Section 28 of Specific Relief Act
because the plaintiff or the legal heirs of the plaintiff
had failed to deposit the balance amount of
Rs.40,00,000/- (Rupees Forty Lac only) and they have
not made any prayer for extension of time for last eight
years and hence, Execution Case No. 192 of 2023 filed
after Eight years is completely barred by limitation.
66. It is further evident that after passing of
judgment and decree dated 16.01.2015 and 28.01.2015
respectively passed in T.S. No. 70 of 2005, Original
Plaintiff- Kedar Prasad, father of O.P. No.2 had filed
Execution Case No. 11 of 2015 for execution of decree
passed in T.S. 70 of 2005.
67. Therefore, it is evident that Execution Case
No. 192 of 2023 filed on behalf of the Decree Holders-O.P.
No.s 1, 2 and 3 was clearly barred by limitation and delay
was of atleast Five (05) years as the T.S. No. 70 of 2005
was allowed and decreed on 16.01.2015 and 28.01.2015
respectively.
68. For the sake of brevity and convenience,
Article 137 of the Indian Limitation Act is being quoted
here, which reads as follows:-
“137. Any other application Three years When the right to
Which no period of apply accrues.
Limitation is provided
Elsewhere in this division”
69. It further transpires that the Execution
Case No. 11 of 2015 had already been dismissed by then
learned Civil Judge (Senior Division), Jamshedpur, Vide
55
Neutral Citation No.
(2026 JHHC 20030)
order dated 23.12.2022 and which was not got re-opened
after the order dated 31.07.2023 passed in F.A. No.67 of
2023 by the High Court of Jharkhand with respect to
Misc. Case No. 21 of 2015, rather the substituted decree
holders-O.P. No. 1, 2 and 3 had preferred another new
Execution Case, being Execution Case No. 192 of 2023,
before the learned Civil Judge (Sr. Division), Jamshedpur,
i.e. after a delay of Five years because as per Article 137 of
Indian Limitation Act, a specific period of Three (03) years
is prescribed for filing Execution Case. Thus, the
Execution Case No. 192 of 2023 was not maintainable.
Thus, in view of the provisions of Article
137 of the Indian Limitation Act, the Execution Case No.
192 of 2023 was clearly barred by limitation and not
maintainable.
70. It further transpires that the judgment
debtor-Objector-Hare Ram Singh was not impleaded as
a party in T.S. No. 70 of 2005 till the date of passing of
the judgment and decree dated 16.01.2015 and
28.01.2015 respectively.
Even from perusal of the judgment dated
16.01.2015 passed in Title Suit No. 70 of 2005 by the
learned Civil Judge, Senior Division-II, Jamshedpur, it
is clear that the Judgment Debtor No.1-Objector-Hare
Ram Singh was not a party in the said suit.
71. It further reveals from the Trial Court
Records and from perusal of petition of Execution Case
No. 192 of 2023 filed before Civil Judge, Senior
56
Neutral Citation No.
(2026 JHHC 20030)
Division-II, Jamshedpur that O.P. No.1, 2 and 3-Decree
Holders had filed an application for Execution of Decree
under Order 21 Rule 11 of C.P.C. and it was in
complete contravention of the order dated 31.07.2023
passed in First Appeal No. 67 of 2023 (i.e. Annexure-
S4), as from perusal of the order dated 31.07.2023
passed in F.A. No.67 of 2023, it is evident that the
Decree Holder No.s 1,2 and 3 had submitted that they
will approach the learned Court below for incorporating
the legal representatives of the Respondent No.1 Kedar
Prasad of Misc. Case No. 21 of 2015, instead of filing a
new Execution Case No. 192 of 2023.
72. It is further evident that the Co-ordinate
Bench (Hon’ble Mr. Justice Anil Kumar Choudhay) of
this Court had observed that this order dated
31.07.2023 will not stand in the way of the appellants
(i.e. O.P. No.s 1 to 3) taking such steps as are
permissible under law in the Lower Court to have the
Decree reopened and to have the legal representatives
of the Respondent No.1, namely Kedar Prasad Singh be
substituted in Misc. Case No. 21 of 2015 and the First
Appeal was dismissed as being not maintainable.
73. Therefore, it is evident that no positive
relief was granted to the Decree Holders-O.P. No. 1, 2
and 3 and they were merely permitted to get the Misc.
Case No. 21 of 2015 reopened in the Trial court and to
get the legal heir of Respondent No.1 Kedar Prasad of
57
Neutral Citation No.
(2026 JHHC 20030)
Misc. Case No. 21 of 2015 be brought on record in that
case.
74. Thus, it is evident that liberty was only
given by the High Court in F.A. No. 67 of 2023, vide
order dated 31.07.2023, to get reopened the said Misc.
Case No. 21 of 2015 and to get the legal representatives
of Kedar Prasad-Respondent No. 1 of Misc. Case No. 21
of 2015 be brought on record in that case, but instead
of doing so and taking steps in Misc. Case No. 21 of
2015, the O.P. No.1, 2 and 3 (Decree Holders) have filed
fresh Execution Case No. 192 of 2023 for Execution of
the Decree.
75. Therefore, Execution Case No. 192 of
2023, which was filed on 04.09.2023, was not
maintainable, as it is evident that fresh Execution Case
No. 192 of 2023 was barred by limitation by a delay of
more than Five (05) years as Section 137 of Limitation
Act provides for filing of Execution Case within a period
of three years from the date of judgment and decree,
which in the present case is 16.01.2015 and
28.01.2015 respectively passed in T.S. No. 70 of 2005
and for which Execution Case No. 11 of 2015 was
already dismissed vide order dated 23.12.2022.
76. It has been held in Om Prakash
Chabra Vs. Sri Bijay Kumar Sarawgi & Anr. in
C.M.P. No.926 of 2024 passed by the Co-ordinate
Bench (Hon’ble Mr. Justice Sanjay Kumar Dwivedi) of
58
Neutral Citation No.
(2026 JHHC 20030)
this Court on 09.01.2025, Para No.s 5, 6 and 7, as
follows:-
“Para 5:- Per contra, Mr. Shashank Shekhar, the
learned counsel appearing on behalf of the
O.P.No.1 draws the attention of the Court to Order
IX Rule 4 of CPC and submits that it is open to file
a fresh suit for execution in light of that provision
and only limitation is that it may be within the
limitation period. He submits that the learned
Court has rightly passed the said order and there
is no illegality. He further draws the attention of
the Court to section 141 CPC and submits that
execution case also comes under the parameteria
of the suit. To buttress his argument, he firstly
relied in the case of Brakewell Automotive 2025
JHHC:95 Components (India) Private Limited v.
P.R. Selvam Alagappan, (2017) 5 SCC 371, at
Paragraph Nos.22 and 23 of the said judgment is
quoted below:
“22. Judicial precedents to the effect that the
purview of scrutiny under Section 47 of the Code
qua a decree is limited to objections to its
executability on the ground of jurisdictional
infirmity or voldness are plethoric. This Court,
amongst others in Vasudev Dhanjibhai Modi v.
Rajabhal Abdul Rehman (Vasudev Dhanjibhal
Modi v. Rajabhal Abdul Rehman, (1970) 1 SCC
670: AIR 1970 SC 1475: (1971) 1 SCR 66) in59
Neutral Citation No.
(2026 JHHC 20030)essence enunciated that only a decree which is a
nullity can be the subject-matter of objection
under Section 47 of the Code and not one which
is erroneous either in law or on facts. The
following extract from this decision seems opt:
(SCC pp. 672-73, paras 6-7)
“6. A court executing a decree cannot go behind
the decree: between the parties or their
representatives it must take the decree according
to its tenor, and cannot entertain any objection
that the decree was incorrect in law or on facts.
Until it is set aside by an appropriate proceeding
in appeal or revision, a decree even if it be
erroneous is still binding between the parties.
7. When a decree which is a nullity, for
instance, where it is passed without bringing the
legal representative on the record of a person
who was dead at the date of the decree, or
against a ruling prince without a certificate, is
sought to be executed an objection in that behalf
may be raised in a proceeding for execution.
Again, when the decree is made by a court which
has no inherent jurisdiction to make It, objection
as to its validity may be raised in an execution
proceeding if the objection appears on the face of
the record where the objection as to the
jurisdiction of the court to pass the decree does
not appear on the face of the record and requires60
Neutral Citation No.
(2026 JHHC 20030)examination of the questions raised and decided
at the trial or which could have been but have not
been raised, the executing court will have no
jurisdiction to entertain an objection as to the
validity of the decree even on the ground of
absence of jurisdiction.”
Para 23:- Though this view has echoed time out of
number in similar pronouncements of this Court,
in Dhurandhar Prasad Singh v. Jai Prakash
University (Dhurandhar Prasad Singh v. Jai
Prakash University, (2001) 6 SCC 534: AIR 2001
SC 2552], while dwelling on the scope of Section
47 of the Code, it was ruled that the powers of the
court thereunder are quite different and much
narrower than those in appeal/revision or review.
It was reiterated that the exercise of power under
Section 47 of the Code is microscopic and lies in a
very narrow inspection hole and an executing
court can allow objection to the executability of the
decree if it is found that the same is void ab initio
and is a nullity, apart from the ground that it is
not capable of execution under the law, either
because the same was passed in ignorance of such
provision of law or the law was promulgated
making a decree unexecutable after its passing.
None of the above eventualities as recognised in
law for rendering a decree unexecutable, exists in
the case in hand. For obvious reasons, we do not
61
Neutral Citation No.
(2026 JHHC 20030)
wish to burden this adjudication by multiplying
the decisions favouring the same view.
Para 6:- By way of relying on the above judgment,
he submits that scope of section 47 CPC is
discussed and in light of this judgment, the
argument of learned counsel for the petitioner is
not tenable.
Para 7:- He further draws the attention of the
Court to the judgment of the Privy Council in the
case of Govind Prasad v. Har Kishan (Weir, J.), AIR
1929 Allahabad which is as under:
“This is an application by the plaintiff in a civil
suit to review an order of the Small Cause Court
Judge of Meerut dismissing the plaintiff’s suit. The
facts are those. The plaintiff, who is the applicant
in these proceedings brought a suit against the
defendants, who are the respondents in these
proceedings, on 20th May 1927 that suit was dis-
missed under O. 9, R 3, in consequence of neither
party having appeared when the suit was called
for hearing. The plaintiff applied to the learned
Judge on 3rd September 1927, to have the suit
restored, and the learned Judge dismissed that
application. The plaintiff then brought a new suit
upon the same cause of action on 17th October
1927. In that suit the learned Judge has passed
the following order:
62
Neutral Citation No.
(2026 JHHC 20030)“The application for restoration was dismissed.
The present suit is not maintainable. Dismissed
with costs.”
In my opinion the learned Judge was clearly
wrong in holding that the plaintiff was not entitled
to bring a second suit, when an application to
restore his first suit had been dismissed. Two
authorities have been cited to me, namely, Daya
Shankar v. Raj Kumar (1) and Bhudeo v.
Baikunthi (2). I entirely agree with the leaned
Judge who decided both those cases, and I,
therefore, set aside the order of the Small Cause
Court Judge and direct him to proceed with the
trial of the suit No. 6390 of 1927. Application
allowed. Costs will be costs of the case.”
77. It has been held in Dr. Vidya Sagar Singh
Versus G.B. Pant University of Agriculture and
Technology and Others reported in (2019) SCC
OnLine Uttarakhand 473, at Para 12, 13 and 14 as
follows:-
Para12:- The judgment of a competent Court is
binding inter-parties and cannot be re-agitated in
collateral proceedings. An order or judgment of a
Court/Tribunal, even if erroneous, is binding inter-
parties. The binding character of judgments, of Courts
of competent jurisdiction, is in essence a part of the
rule of law on which administration of justice is
founded. (The Direct Recruit Class-II Engineering63
Neutral Citation No.
(2026 JHHC 20030)Officers’ Association v. State of Maharashtra: (1990) 2
SCC 715; U.P. State Road Transport Corporation v.
State of U.P. (2005) 1 SCC 444). Matters in
controversy, in writ proceedings under Article 226,
decided after full contest, after affording fair
opportunity to the parties to prove their case, by a
Court competent to decide it and which proceedings
have attained finality, is binding inter-parties.
(Gulabchand Chhotalal Parikh v. State of Bombay
(Now Gujarat): AIR 1965 SC 1153; State of Punjab v.
Bua Das Kaushal: (1970) 3 SCC 656: AIR 1971 SC
1676). Once a matter, which was the subject-matter
of a lis, stood determined by a competent Court, no
party can thereafter be permitted to reopen it in a
subsequent litigation. (Swamy Atmananda v. Sri.
Ramakrishna Tapovanam: (2005) 10 SCC 51: AIR
2005 SC 2392; Ishwar Dutt v. Land Acquisition
Collector: (2005) 7 SCC 190). Issues which have been
concluded inter-parties cannot be raised again in
proceedings inter-parties. (State of Haryana v. State
of Punjab (2004) 12 SCC 673). In view of the earlier
order passed by the Division Bench, in Writ Petition
(S/B) No. 352 of 2014 dated 24.10.2016, a judgment
inter-parties which is binding on the petitioner, it
would be wholly inappropriate for us to entertain a
fresh writ petition for the very same cause of action.
Para 13:- With regards the submission, urged on
behalf of the petitioner, that the impugned order ma
64
Neutral Citation No.
(2026 JHHC 20030)
kes no reference to the review application being filed
by the petitioner, it must be borne in mind that mere
filing of a review application matters little, unless an
order is passed therein interdicting the respondents
from recovering the said sum of Rs. 1,75,000/-. It is
not even contended before us that any such order
was passed in the review petition disabling the
respondents from recovering the said amount. Failure
to mention the fact, that the petitioner herein had filed
a review petition, in the order dated 26.04.2019 is of
no consequence.
Para 14:- With regards the petitioner’s contention that
the order of the Division Bench in Writ Petition (S/B) No.
352 of 2019 dated 24.10.2018 is erroneous, such a
contention cannot be examined in collateral proceedings,
and the petitioner’s remedy, against the order passed by
the Division Bench in Writ Petition (S/B) No. 352 of 2014
dated 24.10.2018, is either to question the same in an
appeal before the Supreme Court, or to seek review
thereof, and not to file a writ petition afresh. Since the
petitioner has, on his own showing, filed a review
petition, we see no reason to entertain this writ petition.
The writ petition fails and is, accordingly, dismissed. No
costs.”
78. This decree imposed a positive obligation
upon the decree holder Kedar Prasad to deposit the
balance amount of Rs.40,00,000/- (Rupees Forty Lac
only) within the stipulated time by the learned Trial Court
65
Neutral Citation No.
(2026 JHHC 20030)
vide judgment and decree dated 16.01.2015 and
28.01.2015, as a condition precedent to the execution of
the sale deed by the defendant, but the same was not
done.
79. It has been held in the case of Prem
Jeevan Versus K.S. Venkata Raman and Another,
reported in (2017) 11 SCC 57 that failure of the plaintiff-
decree holder to deposit the payment of the decretal
amount to the judgment-debtor within the stipulated time
is a lacunae and in absence of depositing of decretal
amount or not seeking extension of time is a serious
lacunae and hence, the decree cannot be executed. The
Hon’ble Apex Court has further held that even if the
respondent-judgment debtor has not sought for rescission
of contract in terms of Section 28 of the Specific Relief Act,
the decree cannot be executed after the expiry of the
period of deposit.
80. It has been held in P. Shyamala Versus
Gundiur Masthan reported in 2023 SCC OnLine SC
184 that deposit of balance sale consideration amount
within the specific time is mandatory and the delay of
853 days to deposit the same cannot be condoned. The
Hon’ble Supreme Court has deprecated the order of the
Trial Court for condoning the delay of 853 days on the
application of the plaintiff-decree holder to deposit the
balance sale consideration and said order of the trial
Court was affirmed by the Hon’ble High Court and the
66
Neutral Citation No.
(2026 JHHC 20030)
Hon’ble Supreme Court had set aside the order of the
High Court as well as the Trial Court.
In the present case, the Execution Case
No. 192 of 2023 was filed on 08.09.2023, i.e. after a delay
of more than eight (08) years and till date the required
balance amount of Rs. 40,00,000/- (Rupees Forty lac
only) has not been deposited by the substituted heirs of
plaintiff-decree holder, i.e. O.P. No.1 to 3 pursuant to the
judgment and decree dated 16.01.2015 and 28.01.2015
passed in T.S. No. 70 of 2005 by the learned Trial Court.
81. It has been stated in Paragraph 2.5 of the
judgment passed in T.S. No. 70 of 2005 on 16.01.2005
that the plaintiff sent legal notice dated 21.07.2005 (Ext.
4/a) to the defendant stating that he has paid
Rs.10,00,000/-(Rupees Ten lakh only) and the reply to
that notice (Ext.5/a) was received by him on 02.08.2005.
wherein it has been written that “Please asked your client
to take money back paid as advance”.
82. Thus, it is evident that the contract
between the original plaintiff Kedar Prasad and the
Original defendant No.1 Bachhi Devi stands terminated
and the agreement/contract was rescinded by the
original defendant no.1-Bachhi Devi against the original
plaintiff-decree holder-Kedar Prasad.
83. Therefore, in view of the discussions made
above and in the light of law laid down by the Hon’ble
Supreme Court, this Court finds that the learned Trial
Court has committed grave illegality by passing the
67
Neutral Citation No.
(2026 JHHC 20030)
impugned order dated 01.04.2026 in Execution Case
No.192 of 2023.
84. In the result, order dated 01.04.2026
passed by the Court of Ms. Avanika Gautam, learned
Civil Judge (Senior Division-IV), Jamshedpur in
Execution Case No. 192 of 2023 (arising out of Title Suit
No.70 of 2005), is set aside and it is held that the
Execution Case No.192 of 2023 is not maintainable and
the proceeding of Execution Case No. 192 of 2023 shall
stand closed and the judgment and decree dated
16.01.2015 and 28.01.2015 passed in T.S. No. 70 of
2005 is not binding upon the petitioner and the said
judgment and decree dated 16.01.2015 and 28.01.2015
respectively is also not executable against the petitioner-
Objector.
85. Thus, this Civil Revision No.25 of 2026 is
allowed with the observations made above.
86. Let a copy of this order be sent to the
learned Trial Court at once by the Office.
(Sanjay Prasad, J.)
Jharkhand High Court, Ranchi
Pronounced on 19.06.2026
A.F.R./s.m.
68
