Patna High Court
Baijnath SahversusKedar Prasad Khandelwal and Ors
- Decided
- Disposal
- DISPOSED
- Bench
- S B P SINGH
Holding
The High Court dismissed the petition to set aside the lower court's order, holding that the execution was already satisfied and the tenant finding cannot be disturbed.
Summary
The petitioner, Baijnath Sah, filed a petition seeking to set aside a District Judge's order that had held him to be a tenant of suit premises and stayed execution of a decree in Title Suit No. 138 of 1987. The lower court had arrived at this finding after dismissing the petitioner's earlier miscellaneous appeals and execution proceedings. The petitioner argued that the tenant finding was unwarranted, the decree had already been satisfied, and the observation allowing eviction under the Bihar Building Rent Control Act conferred no right. The High Court examined whether the order could be set aside given the execution was already satisfied and found no basis to disturb the lower court's decision. Consequently, the application to set aside the order was dismissed, leaving the earlier order intact.
Issues considered
- Whether the District Judge's order finding the petitioner as a tenant and staying execution can be set aside.
- Whether the execution of the decree in Title Suit No. 138 of 1987 is already satisfied, rendering a stay unnecessary.
- Whether the observation permitting eviction under the Bihar Building Rent Control Act creates any enforceable right.
Legislation cited
Subjects
- tenant
- eviction
- execution of decree
- stay of execution
- Bihar Building Rent Control Act
- Transfer of Property Act
- miscellaneous appeal
- title suit
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1767 of 2017
======================================================
Baijnath Sah Son of Late Jangali Sah, resident of Mohalla Shamsherganj near
Ganesh Mandir, P.S. Town, District Darbhanga.
... ... Petitioner/s
Versus
1. Kedar Prasad Khandelwal and Ors
2. Hardwar Prasad Khandelwal, Both resident of Mohalla Shamsherganj P.S.
Town, District Darbhanga.
3. Smt. Chandralekha Singh, Wife of Late Maheshwar Prasad Singh, resident
of Mohalla Shamsherganj, P.S. Town, District- Darbhanga.
4. Jainandan Prasad, Son of Late Maksudan Prasad.
5. Baidyanath Prasad @ Lala, Son of Late Rajendra Prasad.
6. Shyam Prasad, Son of Late Shibnandan Prasad.
7. Ashok Kumar, Son of Late Shibnandan Prasad.
8. Ram Babu Prasad, Son of Late Shivanand Prasad.
9. Murli Prasad, Son of Late Baldeo Prasad.
10. Mohan Prasad, Son of Late Baldeo Prasad. All resident of Mohalla
Barabazar Pargana Rampatti, P.S. Madhubani, District Madhubani. Note-
Raghunandan Prasad Khandelwal, Chhatto Devi and Munna Prasad died as
such not made party.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Nilesh Kumar
For the Respondent/s : Mr. Subodh Kumar Sinha
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL ORDER
13 10-02-2026 The instant application has been filed for setting aside
the order dated 17th of March, 2017 passed by learned District
Judge, Darbhanga in Misc. Appeal No. 14 of 2016 by which he
has allowed the appeal preferred by the petitioner and hold that
the petitioner is a tenant of the disputed plot no. 11701 as
petitioner never claimed and this point is not answered in favour
of the petitioner.
Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
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2. The impugned order has been passed in
Miscellaneous Appeal No. 14 of 2016. The said appeal arose out
of the order dated 18.08.2016 passed in Title Execution Case
No. 07 of 2003, which was under challenge in the aforesaid
miscellaneous appeal. It is an admitted fact that prior to the
filing of Execution Case No. 07 of 2003, the present petitioner,
Baijnath Sah, had instituted a miscellaneous case under Order
XXI Rule 97 of the Code of Civil Procedure before the learned
Executing Court, which was dismissed on merits. Aggrieved by
the said dismissal, the petitioner preferred Miscellaneous Appeal
No. 10 of 2016 before the learned District Judge, which too was
dismissed. After dismissal of his case up to the appellate forum,
the petitioner once again filed a petition before the Executing
Court seeking stay of the execution proceeding. The said
petition came to be decided by the impugned order passed in
Miscellaneous Appeal No. 14 of 2016.
3. Learned counsel for the petitioner submits that the
petitioner has been held to be a tenant of the suit premises,
which finding is wholly unwarranted and contrary to the
materials available on record. It is further submitted that while
adjudicating Point No. 2, as mentioned in paragraph 7 of the
impugned order, the learned court has recorded the following
Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
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findings:-
“7. POINT NO.2:- In view of
above discussions I find that admittedly the
appellant was tenant of the suit premises.
Hence, he should be evicted either under the
provision of T.P. Act or Bihar Building Rent
Control Act. But no such step has been taken
by the Respondents against the petitioner-
appellant under the provision of above said
Act. It is also admitted position by the
Respondent that he has already been taken
vacant possession of the suit premises from
Chandrakala Devi and accordingly the
execution of the decree passed in Title Suit
No. 138 of 1987 is satisfied. Hence, no need
to continue the proceeding. However, on the
basis of factual and legal position of the
execution proceeding as well as the
materials available on the record, it is
desirable to stay the execution proceeding
for the protection of the tenant of the suit
premises. However, the Respondent may take
shelter to the procedure for eviction of the
appellant from the suit premises under Bihar
Rent Control Act if so advised. The
impugned order passed by the learned lower
court dated 18.08.2026 is hereby set aside.
The appeal is allowed.”
4. Learned counsel for the petitioner further submits
Patna High Court C.Misc. No.1767 of 2017(13) dt.10-02-2026
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that once the execution of the decree passed in Title Suit No.
138 of 1987 was held to be satisfied by the learned Appellate
Court, there was no occasion or necessity for the court to make
any further observation granting liberty to the respondent to take
recourse to the procedure for eviction of the appellant from the
suit premises under the BBC Act, if so advised. It is submitted
that since the decree passed in Title Suit No. 138 of 1987
already stands satisfied, the aforesaid observation neither creates
nor confers any right, title, or interest in favour of any party, nor
does it prejudice the rights of either side. The learned counsel
for the respondent further submits that an eviction suit is
presently pending between the parties. Hence, the aforesaid
observation shall not have any bearing or adverse effect on the
rights and contentions of the parties in the said eviction suit. It
shall be decided on its own merit.
5. With the aforesaid, the instant application stands
disposed of.
(S. B. Pd. Singh, J)
Ankit Kumar/-
U
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