Umesh Mishra v. Rameshwar Prasad Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.752 of 2024 ====================================================== 1.
Umesh Mishra Son of Late Bishwanath Mishra, Presently residing at Mohalla - Shantipuri, P.O. - Motihari, P.S. - Motihari, District - Motihari, Pin - 845401.
2.
Pramila Devi, Wife of Late Brajesh Mishra @ Mukhu Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - Patna. 3.
Vikash Ranjan Mishra, Son of Late Brajesh Mishra @ Mukhu Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - 4.
Shashi Ranjan Mishra, Son of Late Brajesh Mishra @ Mukhu Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - 5.
Saraswati Devi, Wife of Late Dinesh Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - Patna. 6.
Sushil Kumar Mishra, Son of Late Dinesh Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - Patna. 7.
Sunil Kumar Mishra, Son of Late Dinesh Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - Patna. 8.
Santosh Kumar Mishra, Son of Late Dinesh Mishra, Resident of village Shahbajpur, P.O.- Bishunpura, P.S. - Bihta, District - Patna. ... ... Petitioner/s
Versus
1.
Rameshwar Prasad Sinha Son of Late Guru Prasad Sinha, Resident of Village- Sadisopur Kulwan Chak, P.S.- Bihta, District - Patna. Presently Resding at 498, Shivajee Nagar, Baghambar Gaddi, Alapur, Prayagraj (Allahabad).
2.
Rajni Kant Sinha Son of Late Guru Prasad Sinha, Resident of VillageSadisopur Kulwan Chak, P.S.- Bihta, District - Patna. At Present Residing in Sadispour House, Frazer Road, P.O.- GPO, P.S. - Kotwali, District- Patna. 3.
Kamala Kant Sinha, Son of Late Guru Prasad Sinha, Resident of VillageSadisopur Kulwarn Chak, P.S.- Bihta, District - Patna. At Present Residing in Sadispour House, Frazer Road, P.O.- GPO, P.S. -Kotwali, District- Patna. 4.
Bibhu Sharan Lal, Son of Bimal Bihari Lal, Resident of Village - Sadisopur KulwanChak, Pargana- Maner, P.S. - Bihta, P.O.- Bihta, District- Patna. 5.
Vikash Sharan Lal, Son of Binod Bihari Lal, Resident of Village- Sadisopur 6.
Ashish Sharan Lal, Son of Late Vijay Bihari Lal, Resident of Village7. Anand Sharan Lal, Son of Late Vijay Bihari Lal, Resident of Village8. Ambar Sharan Lal, Son of Late Vijay Bihari Lal, Resident of Village-
2/6 9.
Rajnish Ravomdra Lal, Son of Late Ravindra Bihar Lal, Resident of Village10. Manish Kumar, Sonof Narendra Bihari Lal, Resident of Village- Sadisopur 11.
Nitish Kumar, Son of Narendra Bihari Lal, Resident of Village- Sadisopur 12.
Harendra Bihari Lal, Son of Late Anami Sharan Lal, Resident of Village13. Binay Bihari Lal @ Binu Jee, Son of Late Anami Sharan Lal, Resident of 14.
Kasitji Sharan Lal, Son of Satendra Bihari Lal, Resident of Village15. Rohit Saran Lal, Son of Binay Bihari Lal, Resident of Village- Sadisopur 16.
Rahul Saran Lal, Son of Binay Bihari Lal, Resident of Village- Sadisopur 17.
Simant Son of Late Shankar Sharan Lal, Resident of Village- Sadisopur 18.
Sabal Sanchi Saran Lal, Retired Executive, Resident of Village- Sadisopur 19.
Kamal Saran Lal, Son of Sabal Sanchi Saran Lal, Resident of Village20. Kushum Daughter of Shri Krishan Bihari Lal, Resident of Village21. Niloo, Daughter of Shri Krishan Bihari Lal, Resident of Village- Sadisopur 22.
Madhuri, Daughter of Shri Krishan Bihari Lal, Resident of Village23. Sanjivan Saran Lal, Son of Shwamy Saran Lal, Resident of Village24. Samiran Saran Lal, Son of Shwamy Saran Lal, Resident of Village25. Lal Arjun Deo Aran Lal Maharshi Son of Samiran Sharan Lal Resident of
3/6 26.
La Prabudh Rishiraj, Son of Samiran Sharan Lal, Resident of Village27. Aman Sharan Lal, Son of Shwamy Saran Lal, Resident of Village- Sadisopur 28.
SitalShran lal, Son of Late Samarith Saran Lal, Resident of Village29. Sanjal Saran Lal, Son of Late Samarith Saran Lal, Resident of Village30. Shekhar Sharan Lal, Son of Late Samarith Saran Lal, Resident of Village31. Abinashi Sharan Lal, Son of Late Samarith Saran Lal, Resident of Village32. Anand Sharan Lal, Son of Pramod Bihari Lal, Resident of Village33. Santosh Sharan Lal, Son of Pramod Bihari Lal, Resident of Village34. Dhiraj Sharan Lal, Son of Pramod Bihari Lal, Resident of Village- Sadisopur 35.
Navin Sharan Lal, Son of Pramod Bihari Lal, Resident of Village- Sadisopur 36.
Kumari Sadhana Sharan Lal, Daughter of Pramod Bihari Lal, Resident of 37.
Kumari Kumud Saran Lal, Daughter of Pramod Bihari Lal, Resident of 38.
Kumari Tripati, Daughter of Pramod Bihari Lal, Resident of Village39. Kumari Deepa, daughter of Pramod Bihari Lal, Resident of Village40. Sant Saran Lal, Son of Alok Bihar Saran Lal, Resident of Village- Sadisopur 41.
Alok Saran Lal, son of Alok Bihari Saran Lal Resident of Village- Sadisopur 42.
Radha Raman Bihari Lal, Son of Late Surendra Saran Lal, Resident of
4/6 43.
Ashok Raman Bihari Lal, Son of Late Surendra Saran Lal, Resident of 44.
Rajesh Bihar Lal Son of Radha Raman Lal, Resident of Village- Sadisopur 45.
Slok Bihari Lal Son of Ashok Bihari Lal, Resident of Village- Sadisopur 46.
Arun Sharan Lal, Son of Late Anom Sharan Lal, Resident of Village47. Sidharth Sharan Lal, Son of Arun Saran Lal, Resident of Village- Sadisopur 48.
Shambhu Sharan Lal, Son of Sant Saran Lal, Resident of Village- Sadisopur 49.
Ranbir Saran Lal, Son of Sant Saran Lal, Resident of Village- Sadisopur 50.
Kailash Saran Lal, Son of Sant Saran Lal, Resident of Village- Sadisopur 51.
Deepak Saran Lal, Son of Sant Saran Lal, Resident of Village- Sadisopur 52.
Dushyant Sharan Lal, Resident of Village- Sadisopur Kulwan Chak, Pargana- Maner, P.S.- Bihta, P.O. - Bihta, District - Patna. 53.
Prabhat Sharan Lal, Resident of Village- Sadisopur Kulwan Chak, ParganaManer, P.S.- Bihta, P.O. - Bihta, District - Patna. 54.
Sumant Saran Lal, Resident of Village- Sadisopur Kulwan Chak, ParganaManer, P.S.- Bihta, P.O. - Bihta, District - Patna. 55.
Hemant Sharan Lal, Resident of Village- Sadisopur Kulwan Chak, ParganaManer, P.S.- Bihta, P.O. - Bihta, District - Patna. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Dr. Ranjit Kumar, Advocate Mr.Rishikesh Ojha, Advocate For the Respondent/s :
Mr.
====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL ORDER 22-08-2024 The record has been taken up on mentioning being made on behalf of the petitioners.
2. The learned counsel for the petitioners submits that the present petition has been filed for setting aside the order
5/6 dated 05.06.2024 passed by learned Additional District JudgeIV, Patna in Misc. Case No.39/2018. The learned counsel further submits that the petitioners have filed Misc. Case No.09/2012 in Execution Case No. 01/2009, initiated for executing the judgment and decree of Title Partition Suit Nos. 93 of 1950 & 36 of 1954 by learned Sub Judge, IV, Patna. In the decree, Khata Nos. 267 and 282 were neither the subject matter of aforesaid title partition suit nor have been mentioned in the final decree of the aforesaid suit. However, at the time of execution, the other side has included the entire land of Khata Nos. 267 and 282 in Execution Case Nos.01/2009 & 03/2012. But this fact could not be mentioned in the Misc. Case No.09/2012 which was subsequently rejected by the learned executing court vide order dated 07.04.2018 and Misc. Appeal No.
39/2018 was preferred against the said rejection order and in the said Misc. Appeal No.39/2018, an application for amendment under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure has been moved. But the learned appellate court rejected the said amendment petition vide impugned order dated 05.06.2024 on the ground that some new facts were sought to be added after 12 years from the date of institution of Misc. Case No.09/2012 and there is no explanation.
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3. Perused the record.
4. If Khata Nos. 267 and 282 were not the part of subject matter of suit for which decree has been issued in Title Partition Suit Nos.93 of 1950 and 36 of 1954, I fail to understand how the execution could be sought against the above-noted two Khata Nos. 267 and 282 because the executing court is not allowed to go beyond the decree and to add or subtract anything from the decree while executing the decree.
5. At this stage, learned counsel for the petitioners seeks permission to withdraw the present petition to approach the learned executing court again to bring to its notice the aforesaid fact since the same could not be brought to the notice of the learned executing court during proceeding of Misc. Case No.09/2012.
6. Permission is accorded.
7. Accordingly, the present petition is dismissed as withdrawn with liberty as aforesaid. If this matter is brought to the notice of learned executing court by moving appropriate application, it would take due notice of the fact and pass orders after consideration of all the facts available on record. (Arun Kumar Jha, J) V.K.Pandey/- U