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2003 DIGILAW 295 (PAT)

Mohd. Salauddin v. Anil Kumar Sinha

2003-03-11

P.K.DEB

body2003
Judgment 1. This revision petition has been preferred against the order dated 15.9.2000 passed by the Second Munsif, Buxar, in Execution Case No. 16 of 1988 whereby the Court below refused the prayer of the petitioner to stay delivery of possession in execution case during the pendency of Misc. Case no. 5 of 1998. 2. There is a chequered history of the case. The execution case no. 16 of 1988 arises out of the decree passed in favour of the opposite parties in Title Suit no. 132 of 1982 in the court of Second Munsif, Buxar. When delivery of possession in the execution case was being ensued the petitioner filed a petition under Order 21, Rule 97 of the Code of Civil Procedure stating that he is the purchaser from the heirs of Bibi Sogra who practically got the suit property on partition but her co-sharer Md. Akhtar had sold away the property to Kedar Lal, the predecessor in interest of the opposite parties. In a previous suit i.e. Title Suit no. 30 of 1932, the disputed plot was declared to be in possession of Bibi Sogra but without making her party Title Suit no. 132 of 1982 was filed and that suit was decreed after fighting up to the Supreme Court but admittedly Bibi Sogra was not a party in that suit. Bibi Sogra then filed Title Suit no. 220 of 1996 challenging the decree passed in Title Suit no. 132 of 1982. Bibi Sogra died during the pendency of the suit and her heirs were continuing with the suit. The petitioner had purchased from the heirs of Bibi Sogra during the pendency of the suit. A prayar for injunction was there in the suit filed by Bibi Sogra for staying of the execution case of decree but the same was not allowed and practically the plaintiffs of Title Suit no. 220 of 1996 had failed in receiving injunction after fighting up to the Apex Court. Now in the execution proceeding the petitioner, who happened to be the purchaser from the heirs of Bibi Sogra, had filed a petition under Order 21, Rule 97 of the Code of Civil Procedure which was registered as Misc. Case no. 5 of 1998 but the executing court dismissed that petition holding that the same is not maintainable. Then the petitioner came up before this Court in Civil Revision no. Case no. 5 of 1998 but the executing court dismissed that petition holding that the same is not maintainable. Then the petitioner came up before this Court in Civil Revision no. 1396 of 1998 [reported in 1999(3) PLJR 917]. By an elaborate order the Civil Revision petition was dismissed holding that although the third party has been included within the ambit of Order 21, Rule 97 of the Code of Civil Procedure for the purpose of initiation of an enquiry by the executing court but for entertaining such petition by a third party and not the decree-holder there must be a precondition and pre-requisite that there was actual physical obstruction in delivery of possession by the third party. The revision petition, as mentioned above, has been dismissed by considering the judgments of the Apex Court as reported in 1997 (SC) 856 (Brahmadeo Choudhary V/s. Rishikesh Prasad Jaiswal & anr.) and a Division Bench judgment of this Court as reported in 1999(1) PLJR 19 (Prabhat Kumar Sinha V/s. Nirmala Sinha & anr.) holding that the prerequisite of any physical obstruction by the third party and vis-a-vis Nazirs report to that effect being not there, there was no scope of the executing court to entertain a petition under Order 21, Rule 97 of the Code of Civil. Then it appears that the execution case proceeded further and the petitioner had given actual physical obstruction to such delivery of possession and a report of the Nazir was there in the records. Then again the petitioner filed a second petition under Order 21, Rule 97 of the Code of Civil Procedure in the execution case no. 16 of 1988 itself. That petition was numbered as Misc. case no. 2 of 2000. In view of the earlier order of this Court in the earlier revision petition as reported in 1999(3) PLJR 917 the executing court held the second petition under Order 21, Rule 97 of the Code of Civil Procedure not maintainable. Against that order again the petitioner came up before this Court in Civil Revision No. 647 of 2000. After hearing both the parties at length that civil revision petition had been disposed of vide order dated 1.8.2000, the photo copy of which has been annexed as Annexure-A to the rejoinder filed from the side of the opposite parties in this revision petition. After hearing both the parties at length that civil revision petition had been disposed of vide order dated 1.8.2000, the photo copy of which has been annexed as Annexure-A to the rejoinder filed from the side of the opposite parties in this revision petition. By that order it was held that the pre-requisite for entertaining a petition filed by third party under Order 21, Rule 97 of the Code of Civil Procedure has not been questioned now because on actual physical obstruction being given the petition was maintainable to be enquired into under Order 21, Rule 97 of the Code of Civil Procedure. But then again it was held by the same order that as already there was a suit pending being Title Suit no. 220 of 1996 and as the scope of the suit is larger than that of the enquiry to be held under Order 21, Rule 97 of the Code of Civil Procedure, the proceeding of enquiry under Order 21, Rule 97 of the Code of Civil Procedure was ordered to be kept in abeyance till the decision is arrived at in the suit itself as that is mandate of law under Order 21, Rules 97 and 98 of the Code of Civil Procedure. Now the position remains that at one hand the Title Suit is pending while on the other hand a petition under Order 21, Rule 97 of the Code of Civil Procedure is also pending although kept in abeyance by the earlier order passed in Civil Revision no. 647 of 2000 and, in such circumstances, it is to be considered as to whether in such a position the execution proceedings should be allowed to proceed further or not. 3. The petitioner had prayed for stay of the execution but the same had been rejected by the impugned order as this court had held the further proceeding of the Misc. case registered under Order 21, Rule 97 of the Code of Civil Procedure to be kept in abeyance and the execution proceedings should not be stayed. Practically the position emerges in the present case is totally same and similar as was there in the case of Prabhat Kumar Sinha (supra) as reported in 1999 (1) PLJR 19 . In that case also injunction etc. Practically the position emerges in the present case is totally same and similar as was there in the case of Prabhat Kumar Sinha (supra) as reported in 1999 (1) PLJR 19 . In that case also injunction etc. fought in the suit had gone against the petitioner third party to file a petition under Order 21, Rule 97 of the Code of Civil Procedure. The legal position remains that if any obstruction to the delivery of possession is reported to the executing court then the decree holder shall file a petition before the executing court for initiating an enquiry and definitely, the situation in that position remains/demands that till such enquiry being held, the execution proceeding should be stayed. So the provisions of Order 21, Rule 97 comes first then the provisions of Rule 99 when already dispossession was there. If an enquiry is to be held under Rule 97 then definitely the execution proceeding should not be allowed to proceed otherwise the proceedings under Order 21, Rule 97 of the Code of Civif Procedure becomes infructuous, and then the provisions under Order 21, Rule 97 comes to an end, so for an enquiry under order 21, Rule 97 of the Code of Civil Procedure the delivery of possession automatically requires to be stayed till the enquiry is over. But then the question becomes in that on the same matter when claim for injunction in the suit had been rejected and such rejection has been mentioned up to the Apex Court, should there be any stay of the execution proceeding regarding delivery of possession? I have already stated that that was the position in the Division Bench judgment as referred to [Prabhat Kumar Sinha (supra)]. In my view, when the petition under Order 21, Rule 97 by the third party (Petitioner) had been held to be maintainable then the execution proceeding should not be allowed to proceed further regarding delivery of possession even though the enquiry under that provision had been held to be kept in abeyance till the decision is arrived at in the title suit. 4. It is true that injunction has been fought up to the Apex Court and therein the petitioners vendor had lost but at that stage the position was not so. 4. It is true that injunction has been fought up to the Apex Court and therein the petitioners vendor had lost but at that stage the position was not so. It was not there that the petitioner being a third party was in actual physical possession of the property in question on which execution has been sought for rather this position has emerged at a subsequent stage. Now on the report of the Nazir it has already come before the executing court that third party is in possession over the suit property then delivery of possession definitely cannot proceed against the third party when the judgment-debtor was not in possession of the property till the enquiry is held under Order 21, Rule 97 of the C.P.C. 5. On consideration of those positions and legal position now stands after extensions of the provisions of Order 21, Rule 97 of the Code of Civil Procedure even to a third party then there remains no other alternative but to hold that the execution proceeding should not be allowed to proceed further regarding delivery of possession till a decision is arrived at in the enquiry proceeding under Order 21, Rule 97 of the Code of Civil Procedure. 6. Hence, this revision petition is allowed and the impugned order of the executing court is modified in the Eight of the findings made above.