Research › Browse › Judgment

Madhya Pradesh High Court · body

1978 DIGILAW 348 (MP)

Jagdish Singh Sodhi v. Roman Catholic Mission

1978-04-15

H.G.MISHRA

body1978
Short Note : 1. The decree-holder/non-applicant no. 1 Roman Catholic Mission Jhansi obtained a decree on compromise for ejectment against the non-applicant nos. 2 and 3 on 30.1.1974. 2. This decree was put in execution, execution case number being 66-A/73-76. Warrant for possession was issued. The applicant herein resisted the delivery of possession and submitted an application purporting to be under Order 21, Rule 98, read with section 101 CPC dated 11.5.1977 to the Executing Court. The Executing Court, on that date ordered the case to be fixed for hearing on 12.5.1977. 3. On 12.5.1977, in the Executing Court, the decree-holder filed reply to the aforesaid application moved by the applicant along with certain documents, the objector (applicant herein) also filed a copy of judgment of the Court of Additional Sessions Judge (wrongly stated to be that of the Court of Additional District Judge in the order-sheet). 4. On the same day, the Court heard arguments and fixed the case for orders on 13.5.1977. On 13.5.1977, the executing Court rejected the application submitted by the objector applicant. 5. Aggrieved by this order, appeal was preferred by the objector under Order 21, Rule 103 CPC. This appeal was rejected by the impugned order. 6. Order 21, Rule 97 CPC, marks the beginning of the procedure to be observed in such cases. After the receipt of an application complaining of resistance or of obstruction, the Court is enjoined by sub-rule (2) of Rule 97 of Order 21 CPC to proceed to adjudicate upon the application in accordance with the provisions herein contained. Thereafter, Rule 101 of Order 21 CPC speaks to the effect that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, not withstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction, shall be determined by the Court dealing with the application. Thereafter rule 98 enjoins on the Court that upon the determination of the questions referred to in Rule 101, the Court shall in accordance with such determination and subject to the provisions of sub-rule (2), (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or (b) pass such other order as, in the circumstances of the case, it may deem fit. 7. Sub-rule (2) of Rule 98 of Order 21 CPC, prescribes the type of satisfaction which is necessary for giving direction against an objector to put the decree-holder into the possession of the property. 8. From the aforesaid analysis of the relevant rules, it emerges that there must be an enquiry into the matter falling within Rule 97 read with Rule 101 of Order 21, CPC. 9. The determination of questions arising between the parties to a proceeding on an application under Rule 97 of Order 21, CPC, is to be done in a judicial manner. More so, because now none of such questions can be decided by a separate suit. By enacting the provision debarring filing of a separate suit, consequences of the determination of such questions are to have serious effect. With it the obligation of the Court to determine the question in a judicial manner has also increased. 10. While adjudicating upon such matters, no Court can act arbitrarily and in violation of the mandatory provisions of law contained in the aforesaid rules. Revision allowed, case remanded for enquiry, in accordance with law.