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2013 DIGILAW 823 (PAT)

Nazia Parween v. Md. Iftekhar Ahmad

2013-07-16

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the petitioners and learned senior counsel appearing on behalf of respondents Nos. 4, 7 and 8. Other respondents, inspite of service of notice, have selected not to appear. 2. The petitioners are aggrieved by the order dated 04.01.2013 passed by learned Judicial Magistrate cum Additional Munsif, IV, Jehanabad in Execution case No. 1 of 2010 whereby he has allowed the petition dated 24-08-2012 filed by the interveners (respondents Nos. 3 to 9) and has directed the office to open a Misc. Suit. 3. Learned counsel for the petitioner contends that in view of Order 21 Rule 101 of the Code of Civil Procedure, all questions arising between the parties to a proceeding on an application under Rule 97 or 99 which are relevant to adjudication of the application has to be determined by the court dealing with the application and not by a separate suit. He submits that, while allowing the application of the interveners filed under Order 21 Rule 97 and 99 of the Code of Civil Procedure, the court below illegally ordered for opening of a separate Misc. suit against specific provision of Order 21 Rule 101 of the Code of Civil Procedure. 4. Learned senior counsel appearing on behalf of aforementioned respondents submits that though the court directed for opening of a Misc. Suit but the court intended to adjudicate upon the dispute in the same proceeding arising out of the application filed by the interveners under Rule 97 or 99 of Order 21. 5. Order 21 Rule 101 of the Code of Civil Procedure reads as follows:- “[101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.]” 6. The said provision clearly contemplates that the dispute between the parties of a proceeding of an application under Order 21 Rule 97 or 99 of the Code of Civil Procedure has to be adjudicated upon and determined by the court dealing with the application. It bars adjudication and determination of such dispute by a separate suit. 7. In such view of the matter, part of the impugned order whereby the court below has directed to open a Misc. Suit for adjudication/ determination of the dispute on the application filed under Order 21 Rule 97 and 99 of the Code of Civil Procedure cannot be sustained and is, accordingly, set aside. 8. The court below is required to adjudicate upon and determine the dispute arising out of the said application filed under Order 21 Rule 97 and 99 of the Code of Civil Procedure in accordance with the provision of Order 21 Rule 101 of the Code of Civil Procedure. It has the jurisdiction to decide such questions. 9. The court below is expected to dispose of the application finally, as expeditiously as possible, and preferably within a period of six months from the date of production/ communication of this order. 10. This application is accordingly allowed.