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2018 DIGILAW 2446 (JHR)

Deepak Kumar Rao v. Bhawani Devi

2018-11-01

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The petitioner, an objector who has filed an application in Execution Case No.08 of 2012, is aggrieved of order dated 28.07.2014 by which aforesaid application has been dismissed on the ground that he has no locus to maintain the said application. 2. An application under Order XXI Rule 99 CPC no doubt can be maintained by a person who has staked an independent claim over the suit property, however, such an obstructor must prima-facie disclose that he has substantial right in the property [refer " Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Another. , (1998) 3 SCC 723 " ]. 3. In his objection petition the petitioner has stated, thus; 15. "That this objector has got no personal interest in this litigation but as the Defendant, wrongly placing herself to be the Decree Holder has moved a wrong forum, this objection is raised by the Objector as a practicing Advocate of Jamtara Court." 4. The learned counsel for the petitioner contends that the petitioner is a villager and the suit schedule property adjoining to his house is being used by the villagers and while so, he has a right to object to execution of the judgment and decree passed in Title Suit No. 59 of 2011. Mr. A.P. Joshi, the learned counsel for the petitioner referring to decision in " Ashan Devi & Another. Vs. Phulwasi Devi and Others. reported in , (2003) 12 SCC 219", submits that it is not that the objector must await his dispossession from the property on which he has set-up an independent claim and an application under Order XXI Rule 99 CPC is maintainable without actual dispossession of the obstructor. 5. On the aforesaid issue, suffice would be to record that an obstructor/objector must prima-facie introduce some evidence on the basis of which he is claiming an independent right in the suit property. On an assertion that the execution case which was filed by the judgment-debtor or on a plea that the suit land is being used by the villagers, the application under Order XXI Rule 99 CPC, in my opinion, was not maintainable and has rightly been dismissed by the executing court. 6. Finding no infirmity in the impugned order dated 28.07.2014, the writ petition is dismissed.