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2013 DIGILAW 933 (PAT)

Md. Shafique v. Basanti Devi

2013-08-02

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Petitioner in the present application under Article 227 of the Constitution of India is aggrieved by an order dated 28.11.2011 passed in Misc. Case No. 43 of 2005 by learned Sub-Judge-8th, Motihari, whereby he has rejected a petition dated 21.7.2011 filed by the petitioner wherein he challenged the maintainability of the aforesaid Misc. Case no. 43 of 2005 said to have been filed under Order XXI, Rule 97 and 99 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’). 2. The petitioner has also challenged the order dated 30.3.2012 passed in the said Misc. Case No. 43 of 2005 by the learned Court below, whereby he refused to review the earlier order dated 28.11.2011. 3. The facts relevant for adjudication of the present case are not much in dispute. 4. Title Suit No. 165 of 1989 was filed by respondent no.2 Satya Narain for specific performance of contract in respect of 1 Katha 6 dhurs of land bearing plot No. 1334 situated at Pakri Bazar Main Road, Motihari, Police Station Motihari, District- East Champaran. Suit was decreed ex-parte. Respondent no.2 thereafter filed an Execution case No. 1 of 1993 for execution of ex-parte decree. A writ for delivery of possession was issued. The petitioner resisted delivery of possession and filed a petition under Order 21, Rule 97, 99 and 101 of the Code which was registered as Misc. Case No. 2 of 2000. The aforesaid Misc. Case No. 2 of 2000 was allowed vide judgment and order dated 8.7.2003. Ex-parte decree was set aside and title in favour of the petitioner was declared and his possession confirmed. Thereafter the respondent no.1 Basanti Devi filed an application under Order XXI Rule 97 of the Code, claiming her title and possession over 2 ½ dhurs of total area of 1 Katha and 6 dhurs of the suit land. This application was numbered as Misc. Case No 2 of 2003 and subsequently renumbered as Misc. Case No. 43 of 2005. 5. Aggrieved by the judgment of the Executing Court passed in Misc. Case No. 2 of 2000 filed by the petitioner, respondent no.2 i.e. plaintiff of Title Suit No. 165 of 1989 preferred a Misc. appeal vide Misc. Appeal No. 53 of 2003 which was also dismissed. Case No. 43 of 2005. 5. Aggrieved by the judgment of the Executing Court passed in Misc. Case No. 2 of 2000 filed by the petitioner, respondent no.2 i.e. plaintiff of Title Suit No. 165 of 1989 preferred a Misc. appeal vide Misc. Appeal No. 53 of 2003 which was also dismissed. The respondent no.2 thereafter lost interest in the execution case and thus, the execution case came to be dismissed in default by an order dated 19.7.2003. 6. The case of the petitioner is that when he learnt about filing of Misc. Case No. 2 of 2003/43 of 2005 filed by respondent no.1 claiming 2 ½ dhurs out of 1 Katha and 6 dhurs of the suit land, the petitioner filed an intervention petition for being impleaded as a party. The said application was allowed and the petitioner was impleaded as intervener Opposite party no.6 to the said Misc. case. After his impleadment, the petitioner filed an application on 21.7.2011 questioning the maintainability of Misc. case basically on the ground that the Execution Case No. 1 of 1993 itself stood dismissed in default on 19.7.2003 and the decree for execution of which the case was filed became non-existent in view of the judgment and order passed by the Executing Court in Misc. Case No. 2 of 2000 filed by the petitioner. 7. The plaintiff, who is respondent no.2 herein, of Title Suit No. 165 of 1989, after the dismissal of his Misc. appeal filed a Title Appeal against the judgment and order passed by the Executing Court in Misc. Case No. 2 of 2000 dated 8.7.2003 which appeal is pending. Respondent no.2 filed a Misc. case vide Misc. Case No. 3 of 2010 before the Executing Court for restoration of Execution Case numbered as 1 of 1993. The said execution case has been restored by order dated 22.9.2011. The Court below i.e. learned Sub-Judge-8th, Motihari vide his order dated 28.11.2011 passed in Misc. Case No. 43 of 2005 rejected the application filed by the petitioner on 21.7.2011 on the basis that petitioner’s claim in Misc. Case no. 2 of 2000 was with respect to 1 Katha 3 ½ dhurs only i.e. part of the suit land. 8. The plea on behalf of the petitioner is that the Court below committed an error of record while holding that petitioner’s claim in Misc. Case no. 2 of 2000 was with respect to 1 Katha 3 ½ dhurs only i.e. part of the suit land. 8. The plea on behalf of the petitioner is that the Court below committed an error of record while holding that petitioner’s claim in Misc. Case No. 2 of 2000 was in respect of only 1 Katha 3 ½ dhurs. It has been contended on behalf of the petitioner that the said Misc. Case No. 2 of 2000 was with respect to entire suit land admeasuring 1 Katha and 6 dhurs. On this basis it has been contended on behalf of the petitioner that the execution case virtually became infrucutuous after adjudication by the Executing Court on the petition filed by the petitioner under Order XXI Rule 97,99 and 101 of the Code and the ex-parte decree became ineffective. It is thus, submitted on behalf of the petitioner that no further application before the Executing Court could have been filed by any person or party under any provision of the Code including Order XXI Rule 97 and 99 of the Code. To substantiate the plea that the petitioner’s application under Order 21 Rule 97,99 and 101 of the Code was with respect to entire suit land, my attention has been drawn to Annexure-1 of this application which is the order passed by the Executing Court in Misc. Case No. 2 of 2000 which refers to the purchase made by the petitioner of 1 Katha 3 ½ dhurs and 2 Katha ½ dhurs from heirs of late Sharda Prasad Singh. With reference to this, it has been contended that the Court below committed error of record while passing the impugned order treating the judgment dated 8.7.2003 passed in Misc. Case No. 2 of 2000 to be confined to 1 Katha 3 ½ dhurs. 9. Learned counsel appearing on behalf of the respondent No.1, on the other hand, has submitted that respondent no.1 was not a party in Title Suit No. 165 of 1989 nor she was impleaded a party in the execution case. When she learnt about the said decree and the execution case she filed an application under Order XXI Rule 97,99 and 101 of the Code, so as to resist execution of the ex-parte decree passed in Title Suit No. 165 of 1989 only the plaintiff had claimed title over 1 Katha and 6 dhurs. When she learnt about the said decree and the execution case she filed an application under Order XXI Rule 97,99 and 101 of the Code, so as to resist execution of the ex-parte decree passed in Title Suit No. 165 of 1989 only the plaintiff had claimed title over 1 Katha and 6 dhurs. Respondent no.1 claimed here title only with respect to 2 ½ dhurs and accordingly an application under Order XXI Rule 97,99 and 101 of the Code was filed on her behalf. He submits that the Court below rightly turned down the petitioner’s objection over maintainability of petition filed by respondent no.1 as she was fully justified while resisting execution of decree with respect to 2 ½ dhurs of land over which she had the title and possession both. 10. The facts as noted above, are not disputed. The only question which requires determination in the present application, in the facts and circumstances is as to whether the executing Court could maintain a subsequent petition filed by respondent no.1 under Order XXI Rule 97, 99 and 101 of the Code after having already adjudicated upon an application filed by the petitioner under the same provision with respect to entire suit land. This is to be noted that learned counsel for the Respondent has disputed the petitioner’s claim that executing Court adjudicated upon the dispute raised by the petitioner in terms of Order XXI Rule 97, 99 and 101 of the Code with respect to entire suit land. According to him, the dispute in Misc. Case No. 2 of 2000 was confined to 1 Katha 3 ½ dhurs. 11. Before I proceed to consider the legal position as regards maintainability of subsequent application filed by respondent no.1 registered as Misc. Case No. 2 of 2003, it is desirable to consider as to whether the previous application filed by the petitioner under Order XXI Rule 97,99 and 101 of the Code was with respect to the entire suit land or it was confined to 1 Katha 3 ½ dhurs. The judgment passed by the learned Executing Court in Misc. Case No. 2 of 2000 is on record as Annexure-1 to this application. The judgment passed by the learned Executing Court in Misc. Case No. 2 of 2000 is on record as Annexure-1 to this application. No much exercise is required on the issue as to whether the dispute adjudicated upon was confined to 1 Katha 3 ½ dhurs only or it covered the entire suit land as description of the property over which the petitioner resisted execution of decree has been given in the said judgment dated 8.7.2003 (Annexure-1), relevant portion of which is in Hindi is being quoted herein-below:- ^^vc vkosnd ds LoRo ij fopkj djuk gS A vkosnd ds rjQ ls ,d iathd`r fodz; i= fnukad 24-2-87 ¼izn’kZ 1@,½ nkf[ky fd;k x;k gS ftlds ifj’khyu ls irk pyrk gS fd ‘k’kh ‘ks[kj lsu iq= Lo0 ‘kkjnk izlkn lsu us vkosnd eks0 ‘kQhd oxSjg ds i{k esa 1 dV~Bk 3-1@2 /kqj ftlesa nks eaftyk iqjkuk edku dk VwVk & QwVk fLFkr gS A mijksDr edku [ksljk la0 1334 ij fLFkr gS vkSj mldh gksfYMax la0 85 gS rFkk iqjkuk okMZ la0 4 ,oa u;k okMZ la0 6 gS dks csp fn;k gS A vkosnd us fookn ls cpus gsrq foHkk jkuh iky mQZ foHkkorh iky ls fnukad 29-1-87 dks ,d iathd`r fodz; i= ¼izn’kZ 1@lh½ eks0 ‘kQhd ds i{k esa gksfYMax la0 85 IykWV la0 1334] okMZ la0 4 iqjkuk ,oa u;k okMZ la0 6 mlh tehu dk fy[kok fy;k gS A blds vfrfjDr foHkk jkuh iky us 15-4-83 dks ,d u;k fodz; i= 2-1@2 /kqj blh tehu dk fy[kdj ds fodz; i= vkosnd ds i{k esa fy[kh gS] tks izn’kZ 1 gS blds vfrfjDr ‘kSyh lsu fo/kok ‘k’kh ‘ks[kj lsu vkSj ‘kadj lsu iq= ‘k’kh ‘ks[kj lsu us Hkh ‘kQhd ds i{k esa blh tehu esa ls viuk 2-1@2 /kqj fgLlk dk fozdz; i= ¼izn’kZ 1@ch½ fy[kdj ds n[ky dCtk ns nh gS A ** 12. It is evident from this judgment that the objection before the Executing Court against the decree related to entire suit land admeasuring 1 Katha and 6 dhurs. 13. It is evident from this judgment that the objection before the Executing Court against the decree related to entire suit land admeasuring 1 Katha and 6 dhurs. 13. Now, having come to a finding that the Executing Court executed upon the entire suit land of Title Suit No. 165 of 1989 on an objection raised under Order XXI Rule 97,99 and 101 of the Code, it has to be considered whether respondent no.1 could maintain an application under same provision before the executing Court raising objection against the decree on the basis of her claim of title over the part of the suit land i.e. 1 ½ dhurs out of 1 Katha 6 dhurs of the total suit land. 14. Under Order XXI Rule 99, a person other than the judgment debtor can file an objection against his dispossession or threatened dispossession of an immovable property by the holder of the decree before the Executing Court. Upon such application the executing Court is enjoined with a duty to adjudicate upon in accordance with the provisions as contained under Order XXI. Rule 101 of 0rder XXI provides that 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. It provides that such Court, notwithstanding any other law, will be deemed to have jurisdiction to decide such questions. 15. Order XXI Rule 98 provides for a passing of an appropriate order by the Court upon adjudication of dispute under Rule 101 of the said order. Rule 103 of the said order declares that an order made under Rule 98, after adjudication of an application under Rule 101 shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. 16. In view of these provisions, upon adjudication by the executing Court and passing of an order under Order XXI Rule 98, the order has the same force as of a decree. From perusal of the judgment passed by the executing Court in Misc. 16. In view of these provisions, upon adjudication by the executing Court and passing of an order under Order XXI Rule 98, the order has the same force as of a decree. From perusal of the judgment passed by the executing Court in Misc. Case No. 2 of 2000, as has been held hereinabove, which is a decree within the meaning of Order XXI Rule 103, pertains to the entire suit land. In such circumstance there was no decree before the executing Court remaining to be executed. The respondent No.1 could not maintain a petition under Order XXI Rule 97 after dispute with respect to the entire suit land having been already adjudicated upon. It has been contended on behalf of respondent no.1 that respondent no.1 was neither a party in Title Suit No. 165 of 1989 nor in Misc. Case No. 2 of 2000 and that the executing Court acted beyond jurisdiction by adjudicated upon the entire suit land admeasuring 1 Katha and 6 dhurs in stead of 1 Katha ½ dhurs. 17. Be that as it may, once the dispute has been adjudicated upon with respect to the entire suit land by the executing Court, it could not have entertained a subsequent petition under Order 21 Rule 97, 99 and 101 of the Code. 18. In view of the above, I hold that subsequent petition filed by respondent no.1 registered as Misc. case No. 2 of 2003 before the learned Executing Court could not be maintained. 19. This application is accordingly, allowed. The impugned order dated 28.11.2011 as well as order dated 30.3.2012 passed in Misc. Case No. 43 of 2005 is set aside. 20. Needless to say that it will be open to respondent no.1 to question the legality of the order dated 8.7.2003 passed in Misc. Case No. 2 of 2000 in accordance with law.