A third party claiming under a judgment debtor cannot file an application under Order XXI Rule 97; they must file under Rule 99 instead.

ORDER :

1. The petitioner is before this Court seeking for the following reliefs:

1.1. Set aside the order dated 05.11.2022 vide Annexure-J passed by the learned Principal Civil Judge and JMFC Court, Sindhanur in E.P. No. 32/2020, in the interest of justice and equity.

1.2. Pass such other orders or directions as this Hon’ble Court deems fit just and proper under the facts and circumstances of the case and allow this writ petition, in the interest of justice.

2. The respondent No. 3 had filed a suit in O.S. No. 89/2022 which came to be decreed and confirmed in R.A. No. 1/2008 and R.S.A. No. 70/2011 in furtherance of which, Execution Petition No. 32/2022 had been filed against respondent No. 2 seeking vacant possession of the suit schedule property.

3. A possession warrant having been issued on 21.03.2022, the Court bailiff sought to execute the same on 14.04.2022, the petitioner objected to the said execution of the decree and filed a suit in O.S. No. 9/2022 seeking for an injunction restraining the respondents from interfering with his possession. The said suit came to be transferred to the Ist Additional Civil Judge and JMFC Court at Sindhanur, and renumbered as O.S. No. 258/2022, an order of ad interim injunction came to be granted.

4. The petitioner also filed an application under Order XXI Rule 97 read with Section 47 of the Code of Civil Procedure, in the aforesaid Execution Petition No. 32/2022, which was contested by the decree-holder. By the impugned order dated 05.11.2022, the said application came to be rejected. It is challenging the said order, the petitioner is before this Court seeking for the aforesaid reliefs.

5. The submission of Sri. Mahantesh Patil, learned counsel for the petitioner is that:

5.1. No enquiry was held on the application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure.

5.2. The Execution Court could not have summarily disposed of the said application on the basis of the pleadings and arguments advanced.

5.3. There ought to have been an enquiry and a trial in terms of Rule 101 of Order XXI of the Code of Civil Procedure and in regard thereto, he submits that, an enquiry was required to be held. No enquiry having been held, the order passed by the execution Court is not sustainable. In this regard, he relies upon the following decisions.

5.4. The decision of Hon’ble Apex Court in Bangalore Development Authority v. N. Nanjappa and Another, 2021 INSC 827 [C.A. Nos. 6996-6997 of 2021] more particularly Para Nos. 5.1 and 6 thereof, which are reproduced hereunder for easy reference:

5.1 Therefore, as per Order XXI Rule 101 CPC, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that a separate suit is not required to be filed. Order XXI Rule 97 is with respect to resistance/obstruction to possession of immovable property.

6. In the instant case, it is the specific case of the appellant-BDA that pursuant to the acquisition of the land in question, the BDA has become the absolute owner and the said land is vested in the BDA and possession was already taken over by the BDA and the land was handed over to the Engineering Section. Therefore, the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings. Though, in the present case, a substantive suit being O.S. No. 2070/2013 filed by the BDA against the decree holder and the judgment debtor to declare the lease agreement as null and void is pending, irrespective of the same, considering Order XXI Rule 101 CPC, the question relating to right, title or interest of the