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    CMP Jharkhand s.47 CPC

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    CMP Jharkhand s.47 CPC

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    Shan 059 [R]
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    cmp jharkhand s.47 cpc

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    CMP Jharkhand s.47 CPC

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI

    C.M.P. 108 of 2024

    Sarita Tekriwalla, aged about 62 years, wife of Shri Bimal Kumar


    Tekriwalla, resident of Gandhi Chowk, T.P. Bose Road, Madhupur, P.O.
    Madhupur, P.S. Madhupur, District Deoghar, Jharkhand through its Power of
    Attorney Holder, namely, Vaibhav Tekriwal, aged about 30 years, son of
    Shri Bimal Kumar Tekriwalla, resident of Jeevan Jyoti Apartment, Flat-402,
    4th Floor, DA/5A, Railpukur Road, Baguiati, Rajarhat Gopalpur (M), Desh
    Bandhu Nagar, P.O. & P.S. Desh Bandhu Nagar, District North 24
    Paraganas, West Bengal ..... … Petitioner
    Versus
    1.Srawan Kumar Gutgutia, son of Late Ram Niranjan Gutgutia.
    2.Shiv Kumar Gutgutia, son of Late Ram Niranjan Gutgutia.
    3.Kunal Gutgutia, son of Shri Sajan Kumar Gutgutia.
    Sl. No.1 to 3 are resident of Ramjus Road, Madhupur, P.O. Madhupur and
    P.S. Madhupur, District Deoghar
    4. Rajendra Kumar Gutgutia, son of Late Lajpat Rai Gutgutia, resident of
    Hatia Road, Madhupur, P.O. Madhupur and P.S. Madhupur, District Deoghar,
    Jharkhand …. …. Opp. Parties
    --------
    CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND
    ------
    For the Petitioner : Mr. Ankit Vishal, Advocate
    For the O.P. :
    --------

    03/21.10.2024 The instant civil miscellaneous petition has been filed on


    behalf of the petitioner for quashing the order dated 24th January, 2023
    passed by the learned Civil Judge (Sr. Division)-I, Madhupur in Misc. Civil
    Application No.96 of 2022 arising out of Execution Case No.20 of 2016
    whereby the petition dated 31st March, 2022 filed by the petitioner under
    Section 47 of the CPC has been rejected.
    2. Learned counsel for the petitioner has submitted that Eviction Suit
    No.06 of 2000 was filed in the court of learned Civil Judge (Senior
    Division)-IV, Deoghar and same was decreed vide order dated 30th
    January, 2015. It is further submitted that the very suit was filed by one of
    the co-owner for eviction of the tenant in the property in suit and that very
    suit being decreed, the execution proceeding was initiated on behalf of the
    plaintiff/decree holder. It is also submitted that in that very suit, the
    petitioner was neither arrayed as a plaintiff nor was impleaded as
    proforma defendant while the plaintiff was also one of the co-owner of the
    very property in suit. As such, the objection under Section 47 CPC which
    was rejected by the learned trial court by the impugned order is against
    the law.
    3. Admittedly, the eviction suit which was filed by the plaintiff against
    the tenant which was decreed in the very suit, the relationship of landlord
    and tenant was to be adjudicated by the learned trial court and after
    adjudication of the relationship of landlord and tenant the ground of
    eviction being found, the very suit was decreed. It is also admitted fact
    that the petitioner was neither the decree holder nor the judgment debtor
    of the eviction suit and his claim is that he is also one of the co-owner of
    the property in question against which eviction has been sought by one of
    the co-owner/plaintiff. There is a material difference between the landlord
    and the owner with regard to the property in question. If there are more
    co-owners of any property and any one of the co-owner, who has received
    the rent from the tenant or to whom the rent had been paid would be the
    landlord. If in a rent eviction suit, the tenant has been evicted and the
    plaintiff/landlord has been directed to handover the possession of the
    same, the right, title or interest of co-ownership of the petitioner is not
    extinguished from the same. If after delivery of the possession to the
    decree holder of the property in question any right, title or interest in the
    very property of the petitioner being a co-owner is being prejudiced or
    adversely affected for the same there is alternate remedy to file
    application under Order XXI Rule 97 or 99 of the CPC for the right, title
    and interest against the another co-owner; but the very objection under
    Section 47 CPC against the impugned decree execution of which is
    pending before the learned trial court is not at all maintainable. Thus, the
    learned trial court has rightly rejected the application under Section 47
    CPC moved on behalf of the petitioner.
    4. In view of the above, discussion, I find that learned trial court has
    not committed any mistake in rejecting the application of the petitioner
    filed under Section 47 CPC.
    5. Accordingly, this CMP stands dismissed.

    (Subhash Chand, J.)


    Rohit/AFR

    -2-

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