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2014 DIGILAW 514 (MP)

Jamuna Prasad v. Balkishan

2014-05-05

U.C.MAHESHWARI

body2014
ORDER 1. The petitioner-objector has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 17.5.2013 passed by the IIIrd Additional Judge to the Court of 1st Civil Judge Class-I, Bhopal in Execution Case No.55-A/2012 whereby his application filed under section 151 CPC, to adduce the evidence through witnesses in support of his application under Order 21 rule 97 CPC pending in the aforesaid execution proceeding to resist the execution of decree, by holding that recording of such evidence is not necessary, has been dismissed. 2. Petitioner’s counsel after taking me through the petition and papers placed on record along with impugned order argued that as per procedure prescribed under the Code of Civil Procedure, on filing the objection by a third party having independent right of possession over the property in dispute to resist the execution of decree under execution passed between the decree-holder and the judgment debtor, the Court is bound to decide such objection after extending the opportunity to adduce the evidence to the parties in support of their contention and in such premise, the executing Court did not have the authority to decide such objection merely on the basis of the application, reply, documents and affidavits filed by the parties in support of their respective case. In such premise, the executing Court has committed grave error in holding that in the impugned proceeding of Order 21 rule 97 of CPC, recording of the evidence of parties is not necessary. The same could not be considered and adjudicated only on the basis of the documents and the affidavits filed by the parties. He also said that if such opportunity is not extended to the petitioner then he would be deprived to prove his case. With these submissions, he prayed to allow his application by setting aside the impugned order by admitting and allowing this petition. 3. On the other hand, responding the aforesaid argument, Shri Shobhitaditya, learned counsel for respondent No.1, the decree holder by justifying the impugned order said that the same being passed in accordance with the procedure prescribed under the law does not require any interference at this stage. 3. On the other hand, responding the aforesaid argument, Shri Shobhitaditya, learned counsel for respondent No.1, the decree holder by justifying the impugned order said that the same being passed in accordance with the procedure prescribed under the law does not require any interference at this stage. In continuation, he said that the impugned order could not be interfered in view of the principles laid down by the apex Court in the matter of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported in AIR 1998 SC 1754 which is further followed by this Court in the matter of Hamid Khan Ansari v. Lilabai and other reported in 2004(II) MPWN 137 = 2004 (2) MPLJ 310 . In the aforesaid judgment of the apex Court, it has been held that there is no any fixed procedure to record the evidence of the witnesses in the proceeding carried out on the application of Order 21 rule 97 CPC. The same could be adjudicated under the discretion of the Court on the basis of the documents and affidavits filed by the parties. Because under such provision, the Court has to enquire the subject matter whether the objector has a independent right of possession over the property to resist the decree or he is also bound by the decree passed between the decree-holder and the judgmentdebtor. With these submissions, he prayed for dismissal of this petition. 4. Having heard the counsel, keeping in view their arguments, I have carefully gone through the petition as well as papers placed on record alongwith impugned order so also the case laws cited by the respondent’s counsel. 5. It is undisputed on record that the impugned decree under execution has been passed in a suit of the respondent No.1 for eviction against the respondents No.2A and 2B and in pendency of the execution proceeding, the present petitioner has filed the impugned objection under Order 21 rule 97 CPC saying that he is in possession of the disputed property under his independent title and ownership right and in such premise the impugned decree is not binding against him. It is also stated that decree under execution was obtained by the respondent No.1 under the collusion with the respondents No.2A and 2B and by executing such decree, the respondents with their joint efforts want to dispossess the petitioner from the disputed property and in support of such contention, he has also filed some documents. 6. On the other hand, mere perusal of the impugned order and papers on record, it is apparent that the impugned decree has been passed in contested suit of the respondent No.1 against the respondents No.2A and 2B and in the record of such suit, the name of the petitioner has come on record as sub-tenant of the respondents No.2A and 2B in the alleged premises. 7. In aforesaid circumstances, it is apparent that after filing the aforesaid objection to resist the execution of decree by the objector and reply of the same on behalf of the respondent No.1, the impugned application was filed on behalf of the petitioner permitting him to adduce the evidence through witnesses but on consideration the same was dismissed by the executing Court holding that under the provisions of Order 21 rule 97 CPC, the enquiry is directed and such enquiry could be carried out on the basis of the objection, reply, affidavits and the documents placed by the parties on record and for that purpose, recording evidence of the witnesses is not required. The same is under challenge in this petition. 8. Before giving any finding on the question involved, I deem fit to reproduce the relevant part of the aforesaid cited case of the apex Court in the matter of Silverline Forum Pvt Ltd. (supra), in which it was held as under:- 12-13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. 9. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. 9. In view of the aforesaid it is apparent that a detailed enquiry or collection of the evidence in support of application under Order 21 rule 97(2) of the CPC is not necessary. The Court has authority to adjudicate the same on admitted facts or even on the averments made by the resistor with further observation that a Court can direct the parties to adduce the evidence for such determination if the Court deems it necessary. Accordingly such discretion is left with the Court. On perusing the impugned order, it appears that taking into consideration the averments of the judgment and decree under execution and other papers available on record filed by the parties under the vested discretionary jurisdiction, the executing Court has rejected the impugned application of the petitioner. 10. It is also settled proposition of law that whenever any order is passed by the executing Court or the subordinate Court in its vested discretionary jurisdiction then in that circumstances under the revisional jurisdiction enumerated under section 115 of the CPC or under the superintending jurisdiction of this Court under Article 227 of the Constitution of India, such order could not be interfered by this Court. My such approach is based on the decision of the apex Court in the case of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway reported in AIR 1973 SC 76 , in which it was held as under:- Civil P.C. (1908) S.115- Interference by High Court-Lower appellate Courts order within its jurisdiction – High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity (Placitum) 11. In view of the aforesaid settled legal position, in the available circumstances, I am of the considered view that the executing Court has not committed any error in dismissing the impugned application of the petitioner, with the observation that the objection filed under Order 21 rule 97 of CPC could be considered and adjudicated on the basis of the available record. Accordingly, I have not found any perversity, irregularity, illegality or anything against the propriety of law in the order impugned. Consequently, it does not require any interference at this stage. 12. Resultantly, by affirming the impugned order, this petition is hereby dismissed. There shall be no order as to costs.