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2006 DIGILAW 432 (RAJ)

Ramesh Chand v. Civil Judge (Sr. Div) Kishangarhbas

2006-02-08

K.S.RATHORE

body2006
Judgment K.S. Rathore, J.-This writ petition is filed on account of undertaking the proceedings in violation of provisions of Order 21 Rule 99 CPC whereby under wrong notice and; by ignoring the regular procedure provided for disposal of an application under Order 21 Rule 99 CPC, the application moved by the petitioners has been rejected. 2. Brief facts of the case are that the suit bearing No. 15/88 is being filed by the Respondents No. 2 to 10 and the trial Court vide its Judgment and decree dated 21.05.1988 passed a decree in favour of the Plaintiff/Respondent Nos. 2 to 10 for possession and to determine the suit, the trial Court has framed as many as seven issues. 3. For deciding the present controversy, the petitioners referred only issue No. 7 which is reproduced as under:-"Whether the objections taken in Para No. 2 of additional pleas of written statement, Hira, Shiv Lal, Sahab, Chotu, Buddha, Kalu Khan, Suraj, Hans Ram, Fakira, Dina, Lila Ram, Ram Pratap, Moti are necessary party to the suit and by not impleading them as a party, what is the effect on the suit." And after referring the provisions and issue No. 7, the petitioner submitted that the Judgment and decree passed by the trial Court dated 21.05.1988 is challenged in first regular appeal by the Judgment debtor namely Banwari son of Thakaria, Nazira wife of Mangli Mev, Brahmdutt son of Dhasi Ram, Gotam son of Bihari, Mukandi d/o Nibu and Sahab Ram son of Shri Anar. 4. The said appeal was rejected by the appellate Court vide Judgment dated 17.07.1995 and the finding given by the trial Court on issue No. 7 was upheld by the appellate Court. 5. Mr. Mathur more particularly referred a finding given on issue No. 7 vide Judgment and decree dated 21.05.1988 and submitted that this finding is not applicable to the persons who are not party in the suit and decree would not be effective against those persons. 6. It is also submitted that the execution proceedings were initiated in the year 1997. Mr. Mathur more particularly referred a finding given on issue No. 7 vide Judgment and decree dated 21.05.1988 and submitted that this finding is not applicable to the persons who are not party in the suit and decree would not be effective against those persons. 6. It is also submitted that the execution proceedings were initiated in the year 1997. The petitioner assailed the execution proceedings as well as the finding given by the trial Court on issue No. 7 on the ground that the property in question was a subject matter in dispute in the suit instituted by the Respondents No. 2 to 10 and the present petitioners are totally stranger to the Judgment and decree passed by the learned trial Court dated 21.05.1988 which was confirmed by the learned appellate Court vide Judgment and decree dated 17.04.1995. Now the decree holders want to dispossess the petitioners from their property having shops and houses which were not subject matter to the suit nor the petitioner were party to the suit. 7. During the course of execution proceedings, a suit for permanent injunction and declaration was initiated on behalf of the petitioners before Civil Judge (Jr. Division), Kishangarh Bas. When some officers of Executing Court had come over the spot, then petitioners raised objection to deliver the possession. Thereafter, they moved an application under Order 21 Rule 99 read with Section 151, CPC. One another application was also moved under Order 21 Rule 99 read with Section 151, CPC by Jat Mahasabha through one Lila Ram. Both the applications were decided by common order dated 12.05.2004. 8. The impugned order dated 12.05.2004 is challenged by the petitioner on the ground that the executing Court without adopting due procedure as referred under the provisions of Order 21 Rules 99 to 104 CPC and since the executing Court has not followed any procedure and on the basis of conjectures and surmises without undertaking any enquiry has rejected the application vide order dated 12.05.2004. 9. The petitioner also submitted that the order dated 12.05.2004 is not in conformity with the provisions contained under Order 21 Rules 99, 100, 101, 103 CPC. When an application is filed under Order 21 Rule 99, then it was the duty of the executing Court to adjudicate the dispute even the title and possession over such property is having by the third party. When an application is filed under Order 21 Rule 99, then it was the duty of the executing Court to adjudicate the dispute even the title and possession over such property is having by the third party. The executing Court had not undertaken any proceedings to adjudicate the rights of the petitioners as well as executability of the decree against the petitioners who were not party to the suit. 10. Thus, the executing Court had exercised the jurisdiction illegally and without undertaking any enquiry as contemplated under Order 21 Rules 99 and 101 cpc. 11. Learned Counsel for the petitioner has also relied upon the Judgment reported in AIR 1997 SC 856 ; 2003 (10) SCC 449 ; 2002 (7) SCC 50 ; 2000 (10) SCC 405 ; 2002 (Civil) SAR 768; AIR 95 SC 358 and 1997 (1) WLC 545. 12. Per contra, learned Counsel appearing for the respondents has controverted the submissions made on behalf of the petitioners and submitted that the petitioners at this stage wants to challenge the basic orders passed by the trial Court as well as the appellate Court and as also the final decree which is passed way back in the year 1988 by the trial Court and further submits that the Courts below have not committed any illegality while rejecting the application under Order 21 Rule 99 cpc. 13. Mr. Sharma further submitted that the plaintiff respondents succeeded in the suit and the decree has been passed in her favour against which defendants appellants preferred appeal, that too was dismissed and the order has again been passed in favour of plaintiff respondents. Hence, being not aggrieved of the impugned order of the trial Court, the petitioners cannot approach this Honble Court for redressal of their grievances for invoking its inherent jurisdiction vested under Article 226 of the Constitution of India. 14. The plaintiff respondents Bhagirathi and others preferred a Civil Suit No. 78/85 for declaration, injunction and possession before the Court of ACJM Kishangarh Bas which was decreed in favour of the plaintiff respondents vide order and decree dated 21.05.1988. The petitioner challenged the decree and order before the ADJ Kishangarh Bas and same was dismissed vide order dated 17.04.1995. Thereafter, the order and decree dated 21.05.1988 attained its finality. 15. Mr. The petitioner challenged the decree and order before the ADJ Kishangarh Bas and same was dismissed vide order dated 17.04.1995. Thereafter, the order and decree dated 21.05.1988 attained its finality. 15. Mr. Sharma also referred the following Judgment s in support of his submissions: 1995 (1) SCC 6 ; 1995 (5) SCC 238 ; 2004 (11) SCC 511 ; 2003 (12) SCC 49 and 1998 (3) SCC 723 . 16. The decree holders obtained the decree against the Judgment -debtors and the respondents (Jat Dharmashala Wale) knowingly this fact did not make any objection that the decree holders were trying to obtain the decree against them. Therefore, at this stage, their applications are not maintainable filed under Order 21 Rule 99 read with Section 151, cpc on the ground that the decree holder and the purchasers of the property from decree holder, if had been dispossessed from the property, in that position the decree holder could have make a petition for getting his possession or, claim of the decreed property. It is crystal clear that this provision of law could apply had these persons exhausted there proceedings if processed in appeal. 17. So far observation given on issue No. 7 "that parties which are not party to the suit, the decree would not be effective against those persons" but, that does not mean that any person who is not party in the suit can interfere in the peaceful possession of the decree holder in whose favour the decree has been passed and that too by purchasing the land in dispute defrauding their original owners. 18. The petitioners were not owner of the property and particularly the possession of the land in dispute was with the plaintiff respondents and the petitioners by fraud got the sale deed of the disputed property in their favour during the pendency of the proceedings pending in the suit and as such how the plaintiff respondents can made them party to the suit when they were not in picture at all upon the filing of civil appeal. 19. 19. Upon careful consideration of the submissions made on behalf of the parties and the provisions referred before me and the Judgment s referred by the petitioners, a bare perusal of the relevant provisions reveals that while passing the impugned order dated 12.05.2004 the provisions of Order 21 Rule 99 read with Section 151, cpc are completely followed and the petitioners even not able to make out any case in their favour and only given emphasis on the finding given on issue No. 7. I have gone through issue No. 7 and observation made thereon by the Courts below. I find no illegality apparent in the observation made by the trial Court on issue No. 7 and the Judgment which are referred by the petitioners are not applicable to the facts and circumstances of the case and in any manner no case of interference is made out. 20. Consequently, the writ petition being devoid of merit deserves to be dismissed and same is hereby dismissed with no orders as to costs. Consequence thereof , the interim order granted by this Court dated 18.08.2004 also stands vacated.