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2001 DIGILAW 1030 (PAT)

Bikrama Prasad v. Bharat Prasad

2001-11-12

NAGENDRA RAI

body2001
Judgment 1. This Civil Revision application is directed against the order dated 23.12,2000 passed in Execution Case No. 9 of 2000 by the Munsif 2nd Court, Siwan by which he has entertained the application filed by the opposite party No.2 (Objector) under Order XXI Rule 97 of the Code of Civil Procedure and stayed the proceeding of the said execution case. 2. The relevant facts of this case are as follows; The petitioner/plaintiff filed a Eviction suit against the father of the opposite party No. 2-objector on the ground of personal necessity with regard to house situate over Khata No. 359, Khesra No. 446 area 9 dhurs in village-Mairwa, district-Siwan. As the suit was of personal necessity, procedure under Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act was followed and the suit was decreed on contest against the father of opposite party No. 2-Objector. He filed a civil revision before this court being C.R. No. 262 of 2000 which was also dismissed on 17.8.2000. 3. The decree holder/petitioner levied Execution Case No. 9 of 2000 on 28.8.2000 before the Court below. Thereafter the case was adjourned at the instance of the judgment debtor on the pretext of pendency of the said civil revision filed by him which was as stated above dismissed on 17.8.2000. In spite of request made by the petitioner, the Court of Munsif did not take steps for giving delivery of possession in terms of the Order XXI Rule 35 of the Civil Procedure Code to him and postponed the matter on one pretext or the other till an objection was filed by the son of the judgment-debtor (Opposite Party No. 2) claiming that the decree was obtained by the decree holder by taking his father in collusion and also on the ground that the land belongs to his grand father and he has share in the same. The said prayer was objected by the decree holder/petitioner on the grounds, firstly, that the objector has virtually challenged the validity of the earlier order passed against his father and secondly that the sale deed by which the land was purchased by the plaintiff from his grand father was with regard to different plot and not with regard to suit property. 4. 4. The learned Munsif by the impugned order entertained the objection under Order XXI Rule 97 of the Code filed by Opposite Party No. 2 and stayed the execution case. Hence the present civil revision application. 5. The learned counsel appearing for the decree holder-petitioner submitted that though under Order XXI Rule 97 in a case of obstruction raised by the 3rd party not bound by the decree, an inquiry has to be conducted in terms of Order XXI Rule 98 of the Code and onwards as provided therein, but the same is not the case here. In this case, the decree was passed against the father of the Opposite party No. 2. The objector (Opposite Party No. 2) being the son of the judgment-debtor by filing the objection under Order XXI rule 97 has challenged the validity of the decree and has not claimed any independent right. He is bound by the decree and as such the execution Court should not have entertained the objection filed by opposite party No. 2. Secondly, he submitted that the Court below did not consider the fact that the other claim of the objector that land was purchased by his grand father was with regard to different piece of land and not with regard to suit property. 6. The learned counsel for the Opposite party No. 2-objector on the other hand submitted that once the Objector claimed an independent title over the suit land and he was not party to the decree, he is covered by the word any person given under Order XXI Rule 97 of the Code and the Court below rightly entertained his application and ordered to hold inquiry. He further submitted that in such a case where any person not party to the suit is threatened with dispossession by decree-holder, he may make an application to the Court complaining of such dispossession and that question has to be decided by the Execution Court in terms of the relevant provision under Order XXI of the Code and the law settled by the Apex Court. In this connection, he referred to the decisions of the Apex Court in the cases of Brahmdeo Choudhary V/s. Rishikesh Prasad Jaiswal and another, reported in 1997 (3) SCC 694 , Shree Nath and another V/s. Rajesh and others, reported in AIR 1998 Supreme Court 1827; Prasantha Banerji V/s. Pushpa Ashoke Chandani & others, AIR 2000 Supreme Court 3567(2). 7. So far as the legal position is concerned, it is well settled that in case of threat of dispossession of any person not bound by the judgment and decree, if an objection is filed under Order XXI Rule 97 of the Code, then that has to be considered and disposed of under the relevant provision and remedy of appeal or revision is provided under the said Order. Suit is not remedy in such matter and the same is barred. But the question in this case is as to whether the objector /opposite party no. 2 is bound by the decree or not? 8. Admitted fact is that the suit was filed by the petitioner/plaintiffs against the father of the objector. It was contested by the father of the Opp.party No. 2 who lost up to the High Court. The objection petition filed by Opposite Party No. 2 in substance amounts to challenging the validity of the decree on the ground that his father was gained over by the plaintiff /decree holder, on that account, thus his claim is independent of the claim of his father. In my view, tor such relief the remedy is elsewhere and not an application under Order XXI Rule 97 of the Code. The objector is bound by the decree unless it is set aside on the ground taken by him. His case is not covered by Order XXI Rule 97 of the Code. This apart, the Court has to consider that the proceeding of the Court is not abused by a party by taking recourse to the pure technical view of the matter. The eviction suit was lost by the father of Objector. The Objector does not have any independent title over the suit land and as such entertainment of his objection is an abuse of the process of the Court. 9. The eviction suit was lost by the father of Objector. The Objector does not have any independent title over the suit land and as such entertainment of his objection is an abuse of the process of the Court. 9. In this civil revision application, it has been specifically stated that even the sale deed which has been produced by the objector is with regard to Khata No. 319 Khesra No. 449 area one Katha five dhurs, whereas the decree was with regard to lands of plot bearing Khata no. 359 Khesra No. 446 area 9 dhurs. No rejoinder has been filed to the aforesaid statement made in the civil revision. Thus, on that ground also it can be safely said that the Court below could not have entertained the objection and stayed the execution case. 10. Accordingly, the impugned order dated 23.12.2000 passed by the Munsif 2nd Court, Siwan in Execution Case No. 9 of 2000 is set aside and the Court Itelow is directed to proceed with the execution case immediately. 11. In the result, the civil revision application is allowed.