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Gauhati High Court · body

1990 DIGILAW 89 (GAU)

Tapan Sarkar v. Sukpila Boro

1990-05-21

R.K.MANISANA SINGH

body1990
This revision petition arises from an order of 12. 12. 89 made by the Sadar Munsiff, Gauhati in Misc. (J) Case No. 153 of 1989 arising out of Title Execution No. 1 of 1987. 2. Facts giving rise to this petition, in brief, are thus. One Kalinath Roy instituted Title Suit No. 53 of 1987 in the Court of Sadar Munsiff, Gauhati against Shri Tapan Sarkar. A decree for possession was passed exparte. The decree was executed and Tapan was evicted from the decretal land. Later on the Munsiff set aside the decree, and on the application made by Tapan to the Court, restitution was made to Tapan. Thereafter, one Sukhila Boro filed an application stating that in course of the restitution she has been dispossessed by the Civil Nazir from holding No. 160 which is not within the decretal land, and that description of land in the warrant for execution of delivery of possession in favour of Kalinath and in the warrant for restitution are different. On 23.8.89, the Muasiff in the exercise of his power under section 151, CPC ordered that Nazir shall immediately restore possession of the holding No. 160 of Ward No. 25 to Sukhila Boro as there was no order of eviction in respect of the holding No. 160 occupied by Sukhila. However, at the prayer of the learned counsel for Tapan, the case was adjourned till 76. 8. 89 for further hearing by suspending the order. It appears from the records that Tapan has filed written objection against the petition filed by Sukhila and the hearing of the matter was fixed on 10.11.fc9. On 10.11.89, the date fixed for hearing, Tapan filed an application requesting the Court to fix a date for framing issues and filing of documents. The Munsiff rejected the petition by observing that the petition of Sakhila would be decided and disposed of on merits and in the course of the hearing of the petition Tapan would get every chance to contest the petition. Hence this petition. 3. Mr. A. S. Choudhury, the learned counsel for the petitioner, has contended that the application made by Sukhila is an application under O21, R 99, CPC and, therefore, the provision of O 21, R 101 is attracted. In such a situation, procedure for trial in a suit is to be followed as is provided under section 141, CPC. Mr. 3. Mr. A. S. Choudhury, the learned counsel for the petitioner, has contended that the application made by Sukhila is an application under O21, R 99, CPC and, therefore, the provision of O 21, R 101 is attracted. In such a situation, procedure for trial in a suit is to be followed as is provided under section 141, CPC. Mr. A. Shariff, the learned counsel for the opposite party, has contended that the application of Sukhila is one under section 151, CPC as the provision under Rule 99 is not applicable to the present case for the reason that the land involved in Sukhila's petition is not the subject matter of the suit between Kalinath and Tapan. 4. O 21, R 99 provides that where any person other than judgment debtor is dispossessed of immovable property by a holder of decree for the possession of such property, he may make an application to the Court complaining of such dispossession. O 21, 101 provider that all the questions (including the question of right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 99 shall be determined by the Court dealing with the application and not by a separate suit for this purpose. Rule 101 makes it clear that no separate suit is to be filed for determination of question relating to right, title or interest in the property arising between the parties to a proceeding under Rule 99. Section 141 provides that procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, Therefore, enquiry under Rule 99 shall be treated as if it is trial in a suit and the procedure for trial of the suit shall be followed, as far as it can be made applicable, iu the proceeding. 5. Rule 99 relates to where any person other than the judgment debtor (which 1 shall refer to as the "third party"; is dispossessed of immovable property by a holder of a decree of such property. Therefore, the immovable property., which has been put out of possession of the third party, must be the property under, or covered by, the decree. Rule 99 relates to where any person other than the judgment debtor (which 1 shall refer to as the "third party"; is dispossessed of immovable property by a holder of a decree of such property. Therefore, the immovable property., which has been put out of possession of the third party, must be the property under, or covered by, the decree. The Supreme Court has held that an application for restitution under section 144 CPC is an application for execution of a decree (See Mahijibhai vs. Manibhai, AIR 1965 SC 1477 and Maghbool vs. Md Khodaija, AIR 1966 SC 1194 ). In view of the decision of the Supreme Court, Tapan is the holder of the decree for possession for the purpose of restitution and Sukhila is a third party. But, if the allegations made in the application of Sukhila are accepted, the land claimed by Sukhila is not under, or covered by, the decree and, therefore, Rule 99 shall not be applicable. However, in my judgment, if there is a bona fide dispute regarding the right, title or interest in the immovable property, the matter cannot be decided in a summary enquiry as the summary enquiry is not a legal process which is suited for an adjudication of complicated question. Therefore, in such a situation, the pleadings of the parties, documents filed, etc are to be examined, if there is any bonafide dispute regarding title, right or interest in the property. 6. The Munsiff has not approached the case in the light of the discussion above. But, in this application under section 115,1 decline to examine whether there is a bona fide dispute or not. Therefore, the matter is sent back to the learned Munsiff to dispose of the petition in the light of the observation and discussion above. With the said observation and direction, the petition is allowed and disposed of.