An order under Rule 97 of Order 21 CPC must be preceded by an adjudication to be deemed a decree under Rule 103 of Order 21 CPC.

1. Heard Mr. Keshav Srivastava and Mr. Shashi Shekhar Dwivedi, learned senior counsel for the parties.

2. The petitioner was the obstructor to execution of a decree and had filed Misc. Case No. 18/03 in terms of Order 21, Rule 97 CPC in the Execution Case No. 2/1989 pending before the learned Sub-Judge 1, Madhubani. The same was held to be not maintainable.

3. Being aggrieved by the said decision the present revision application has been filed.

4. Mr. Dwivedi learned senior counsel appearing for the decree holder-opposite party raised a preliminary objection as to the maintainability of the civil revision application. He submitted that in terms of Order 21, Rule 103 CPC an order passed in such a proceeding is deemed to be a decree and if that be so it is appealable. If an appeal against such an order then in terms of Section 115(2) CPC the order is not amenable to revisional jurisdiction.

5. On behalf of the petitioner Mr. Keshav Srivastava, learned senior counsel submitted that for an order to be a deemed decree in terms of Rule 103 of Order 21, it must be an order passed after adjudication as provided therein. He submitted that when a decree is to be executed and in course of execution it is obstructed by a party, who was not a party to the suit, and the said obstructist filed an application in terms of Order 21, Rule 97 CPC then the executing court has to decide the objection, if it raises the question of right, title or interest virtually as a suit and once that is accepted then the proceedings have to be conducted in a manner similar to that of a suit. The objection has to be admitted, rejoinders called for, issues framed, evidences taken and then after hearing the arguments, final order passed. As the origin of such an objection is not by way of plaint the proceeding cannot be said to be a suit in the strict sense but is an akin to suit and therefore the legislature has used "deemed to be a decree" in Rule 103, Order 21 CPC and not" is a decree".

6. I have heard learned senior counsel at length and with their consent this revision application is being disposed of at the stage of admission itself.

7. The petitioner filed her objection to the execution of decree on basis whereof the present Misc. Case No. 18 of 2003 was registered. She pleaded that the property, in question, belonged to her father. After the death of her father and subsequently her mother, the three brothers and she were left. She was living on part of the property since the time of her parents. One of the brothers filed a partition suit against his two brothers but she was not made a party thereto. A preliminary decree was passed and thereafter final decree was drawn up. When this decree was sought to be executed against her in respect of the property she was occupying, she objected to its execution against her, as being daughter on death of her parents. She had inheritable rights and inherited interest in the property. The judgment and decree obtained by the brother could not operate against her interest. The decree holder brother objected and filed a rejoinder stating that the applicant (obstructist) was the sister and as the other two brothers who were judgment debtors had failed to stall execution proceeding being Execution Case No. 2 of 1989 they had set up their sister to do the same. The executing court without any further finding held the objection to be not maintainable holding thus:

"But the petitioner has not filed any paper or document relating her title and interest in respect of her claim over plot no. 4644 of Mauza Ekdara P.S. Khajouli, District Madhubani area 2k 5dh 75 dhurki. Under these circumstances, the present Misc. case is not maintainable."

8. It would be manifest from the aforesaid facts that it is not in dispute that the petitioner was the sister. It is not in dispute that she was not made party to the partition suit. It is not in dispute that she claims possession to certain part of the property, yet the executing court h