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Judgment
Gautam Kumar Choudhary, J
Both the civil misc. petitions have been preferred against the order dated 08.08.2024 passed in Title Execution Case No. 07/2013, whereby and whereunder, the execution was permitted to be withdrawn at the instance of three legal substituted heirs of the co-decree-holders.
C.M.P. No. 1120 of 2024 has been preferred by one of the legal heirs of the decree-holders Dilip Kumar Roy (since dead) against the permission of withdrawal of the execution case at the instance of other legal heirs of the decree-holders.
C.M.P. No. 520 of 2025 has been preferred by the petitioners /pendente lite purchasers of the suit property and are aggrieved by the withdrawal of the execution case without passing any order on the intervention application filed by the Petitioner.
One Dilip Kumar Roy @ Ray filed Title Eviction Suit No.17/1999 impleading Suman Singh for eviction from the scheduled property which is a residential house situated in Holding No. 46, Ward No.18, Deoghar Municipality. The suit was decreed vide judgment dated 20.06.2002. No appeal was preferred against the judgment and it consequently attained finality. Execution Case No. 07/2013 was filed by the decree-holder. Before filing the execution case, Dilip Kumar Roy died in the year, 2012 and execution case was filed by his wife, sons and daughter namely, Margaret Anna Roy, Mitra Lobanya Kar, Robin Roy and Arun Kumar Roy. During pendency of the execution case, Margret Anna Ray died on 11.08.2020 and Arun Kumar Roy died on 06.08.2020. On their death, vide order dated 19.05.2023, substitution was allowed for Barnali Roy and Deep Narayan Roy in place of Arun Kumar Roy, whereas the name of Margaret Anna Roy
was deleted. In the meantime, Braj Mohan Singh (petitioner in C.M.P. No. 520 of 2025) filed an intervention application which was heard on 04.07.2023 and further was heard on 22.11.2023. During pendency of the intervention application, at the instance of Margaret Ann Roy, Robin Roy and Arun Kumar Roy, withdrawal application was allowed by the impugned order dated 08.08.2024. The withdrawal application was filed on 04.03.2020, signed by Margaret Ann Roy, Robin Kumar Roy and Arun Kumar Roy.
The main point for determination in the instant CMP is that can execution case be withdrawn by some of the legal heirs of the decree-holder(s), without the consent of the other legal heirs.
It is argued by learned counsel for the petitioner(s) that it was impermissible to have allowed the withdrawal application without the consent of the petitioner- Mitra Lobanya Kar who admittedly is the daughter of the decree-holder, Late Dilip Kumar Roy.
Further after filing of the withdrawal application on 04.03.2020, both Margaret Anna Roy and Arun Kumar Roy died before any order could be passed on the said withdrawal petition. After their death, the legal heirs were substituted and brought on record.
However, without hearing the intervenor application filed by the petitioners of CMP No.520 of 2025, the withdrawal was allowed of the original applicant who had died and were substituted at the time of passing of the impugned order.
It is argued by learned counsel for the Opp. Party(s) that out of the four legal heirs and descendants of the decree-holders, three of them entered into an agreement of sale dated 11.09.2019 between Margaret Ann. Ray, Robin Kumar Ray with Pushpesh Kumar Kashyap, Binod Kumar, Rahul Kumar, Anjani Kumar Singh, Rakesh Kumar, and Mina Devi and for selling the share of the decreed property in their favour and in pursuant to it, a sum of
Rs.2.77 Crores have already been paid to these three legal heirs of the decree-holder on the basis of which, the withdrawal petition was filed.
Opp. Party (Suman Singh) happens to be the husband of the proposed purchaser, Mina Devi.
It is further argued by learned counsel for the petitioner that Original Title Suit No.43 of 2020 has also been filed by the proposed purchasers including
Mina Devi, [W/o Suman Singh] impleading the petitioners of CMP No.520 of 2025 as the legal heirs of decree-holder who had entered into an agreement to sell for cancellation of sale-deed. In the said suit, written statement has been filed by Margaret Ann. Ray, Robin Kumar Roy and Arun Kumar Roy wherein it has been stated that the sale-deed was executed by playing fraud and representing that it was only a settlement deed resolving the dispute between the parties.
Having considered the submissions advanced on behalf of both the sides and on perusal of materials on record, it is evident that the present petitioner, Mitra Lobanya Kar, and opposite parties Margaret Ann. Ray, Robin Kumar Roy and Arun Kumar Roy are all legal heirs and descendants of the decree-holder, Dilip Kumar Ray who died before institution of Execution Case No.07 of 2013. Consequently, the execution case was filed by all the four legal heirs and descendants of the decree-holder.
During the pendency of the execution case, part of the suit property was sold out by the heirs and descendants of the decree-holders, to the petitioners in CMP No.520 of 2025 vide two registered sale-deeds executed on 16.01.2020 and 20.01.2020. Once a sale-deed is executed, the title in the property is transferred to the purchasers on the date of execution of the sale-deed in terms of Section 47 of the Registration of Property Act.
Thus, the purchasers from the legal heirs of the decree holders, who are petitioners in CMP No.520 of 2025, had acquired proportionate share in the decretal property, became the necessary party in the execution proceeding and, therefore, learned Executing Court committed egregious error to permit withdrawal of the execution case without hearing and disposing of their intervenor application.
Further, three of the legal heirs, as referred to above, entered into an agreement to sale, for selling their share in the decretal property to the proposed purchasers, and withdrew the case. Permitting withdrawal without the consent of the Petitioner- Mitra Lobanya Kar ex facie was impermissible.
An eviction suit can be prosecuted by anyone of the co-owner(s). Even if, it is assumed that the other decree-holders had sold their share or entered into an agreement of sale with respect to their respective share, it was incumbent on the part of the executing court to demarcate and exclude the share of petitioner, Mitra Lobanya Kar who had not consented to the withdrawal of the case.
Under the circumstances, the impugned order being not sustainable is accordingly set aside.
The matter is remanded to the learned Executing Court to pass the order afresh after hearing both the parties. Both sides to appear before the learned Executing Court on 24.11.2025. It is also settled that agreement of sale does not transfer title. Learned Executing Court to dispose of the Execution Case in the light of guidelines laid down by Hon’ble the Apex Court in Rahul S. Shah vs. Jinendra Kumar Gandhi and Ors., [(2021) 6 SCC 418].
In the event of non-appearance of the party(s), learned Executing Court without granting further adjournment will proceed and dispose of the matter in accordance with law.
Both the C.M.Ps. stand disposed of. Pending I.As, if any, also stands disposed of.