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2013 DIGILAW 2576 (ALL)

Achal Sharma v. Vimla Rani

2013-10-09

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. Heard Sri Y.K. Srivastava, learned counsel for the petitioner and Sri A.K. Narayana, who has filed his power on behalf of Respondent No.1. Let the power be taken on record. 2. According to learned counsel for the petitioner, the petitioner was not a party in Suit No.458 of 2003 which was decreed on 27.05.2008. He submits that the plaintiff of the suit put the decree in execution being Execution Case No.1 of 2008 (Bhagwat Das Vs. Om Prakash). In the said execution case, one Avinash obstructed the decree and in light of the provision of Order XXI Rule 97 CPC his objection was decided and rejected. According to learned counsel for the petitioner, the petitioner namely Achal Sharma was in possession of the property in question and for showing his possession he referred to extract of khatauni 1414 to 1419 F and filed application resisting the decree. The said application was considered by the Trial Court as an application under Order XXI Rule 97 CPC and has been rejected by the impugned order dated 07.09.2013 as also the revision filed there against being Revision No.Nil of 2013 (Achal Sharma Vs. Amit Pachauri & others) was rejected. 3. Learned counsel states that the impugned orders have failed to consider the decision of the Supreme Court in the case of Tanzeem-e-Sufia Vs. Bibi Haliman and others reported in AIR 2002 SC 3083 wherein it was held that a third party claiming independent rights can resist the decree for possession and he would be entitled to be heard under Order XXI Rule 97 CPC and refusal of hearing on the ground that the objector should file civil suit or file an objection under Order XXI Rule 99 is not proper. According to learned counsel for the petitioner, the petitioner has been denied adjudication on his application under Order XXI Rule 97 CPC and no inquiry or adjudication has been done regarding the right of the petitioner to protect his possession against the decree. 4. According to learned counsel for the petitioner, the petitioner has been denied adjudication on his application under Order XXI Rule 97 CPC and no inquiry or adjudication has been done regarding the right of the petitioner to protect his possession against the decree. 4. Sri A.K. Narayana, learned counsel appearing on behalf of the Respondent No.1, who is the decree holder, has disputed the submission and states that the brother of the petitioner namely Avinash had already tried to obstruct the decree on the very same basis of his name being entered in the extract of khatauni and such objection was rejected by the Executing Court after adjudication on 03.08.2013 and the petitioner herein is the brother of the said Avinash and has also been recoded in the khatauni alongwith Avinash. He states that when one brother claiming interest in the property in question through entry in the khatauni has failed before the Executing Court and adjudication of his claim has already been done on 03.08.2013 the second brother, who is also entered alongwith his brother in the khatauni, could not have obstructed decree for the very same ground. 5. Having considered the submission of learned counsel for the petitioner and perused the impugned order, it appears that the brother of the petitioner was entered in the khatauni alongwith the petitioner. First, his brother Avinash obstructed the decree and his objection was adjudicated by the Executing Court finally on 03.08.2013 and rejected. Thereafter it appears that the petitioner, who is younger brother of Avinash preferred the very same application on the very same ground of being entered in the khatauni alongwith this brothers over the decreetal property. The Executing Court has recorded these facts and found that the claim of the petitioner on the very same ground as made by the brother could not succeed for the reason that the adjudication relating to the rights of the brother of the petitioner has already been done by the Executing Court and rejected, therefore, the petitioner cannot now come forward and claim independent rights of possession over the property in question by virtue of the very same entry in the khatauni. 6. 6. The Revisional Court has also affirmed the order passed by the Executing Court for the same reason and has found that the petitioner cannot now obstruct the decree in light of the fact that his brothers' obstruction to the decree has already been finally rejected on 03.08.2013 who had claimed the same reason for obstructing the decree. 7. In view of the aforesaid circumstances, no error can be found in the impugned orders. Insofar as the decision of the Supreme Court in the case of Tanzeem-e-Sufia (Supra) is concerned, clearly, the objection filed by the brother of the petitioner obstructing the decree on the very same ground has been adjudicated and, therefore, when the application under Order XXI Rule 97 CPC by his brother on the very same ground has been adjudicated the petitioner could not maintain the objection which was also on the very same ground of being in possession alongwith his brother. 8. The writ petition is accordingly dismissed. 9. No order is passed as to costs.