ORDER

Heard Mr. Chandra Kant, learned counsel for the petitioner and Mr. Md. Waliur Rahman, learned counsel for the respondents.

2. The petitioner is aggrieved by the order dated 30.01.2018 passed in Execution Case No. 5 / 2017 whereby the learned Executing Court has allowed the petition filed by the respondents under Order 21 Rule 97 of the CPC and has directed the decree holder to delete the plots from the Execution Case No. 5 of 2017 upon which delivery of possession has already been taken place in another suit filed by the respondents bearing Partition Suit No. 394 of 2005.

3. A preliminary objection has been raised by learned counsel appearing for the respondents that this civil miscellaneous application is not maintainable inasmuch as per Order 21 Rule 103 of the CPC the order passed by the Executing Court in exercise of its jurisdiction under Order 21 Rule 97 & 99 of the CPC is a deemed decree and as such appeal will lie. Learned counsel in support of his argument has relied upon Full Bench judgment of the Andhra Pradesh High Court reported in AIR 2005 AP 95 Gurram Seetharam Reddy Vs. Smt. Gunti Yashoda & Anr. in which the Hon’ble Court has held that the order passed under Order 21 Rule 97 & 99 are appealable.

4. On the other hand, learned counsel for the petitioner submits that the judgment passed by the Andhra Pradesh High Court is not applicable in the facts of the case and he has relied upon the judgment of the Patna High Court reported in 2007 (4) PLJR 727 Most. Sanjha Devi Vs. Amar Yadav & Ors. and submits that in an objection filed under Order 21 Rule 97 of the CPC the paraphernalia of suit will follow and the parties should be given a chance to substantiate their case by evidence and the order passed under Order 21 Rule 103 of the CPC must be preceeded by an adjudication. The learned court below has failed to exercise its jurisdiction properly under Order 21 Rule 97 of the CPC and without adjudicating the matter as if the court is deciding suit has merely directed the decree holder to delete some of the plots from the execution case bearing Execution Case No. 5 / 2027. Therefore appeal is not the correct remedy and civil miscellaneous application has rightly been filed.

5. The background of the case is that a title partition suit bearing Partition Suit No. 419 of 2002 was filed by the petitioner for partition of the joint family property which was decreed on 19.08.2006. The final decree was passed in the aforesaid suit on 30.06.2017 in which the respondents filed an application under Order 1 Rule 10 (2) of the CPC for impleadment which was rejected and after final decree Execution Case No. 5 of 2017 was filed by the petitioner on 04.06.2017. On the other hand, respondents filed a partition suit bearing Title Partition Suit No. 394 / 2005 on 20.01.2008 in which final decree was passed on 29/05/2012 and thereafter an Execution Case No. 2 / 2012 was filed by the respondents in which delivery of possession was made on 17/03/2012. It is noted that the petitioner was also one of the defendants in the suit filed by respondent and a First Appeal bearing F.A. No. 30 of 2008 has been filed before this court challenging the preliminary decree and First Appeal No. 101 of 2012 has been filed challenging the final decree by the petitioner which are pending before this court. On 20.09.2017 the respondent filed a petition under Order 21 Rule 97 CPC taking an objection that land / plots which are the subject matter of the suit and the decree passed thereon in Partition Suit No. 419 of 2002 is also subject matter of Partition Suit No. 394 of 2005 in which the delivery of possession has already taken place and as such those plots should be deleted from the decree passed in Title Partition Suit No. 419 of 2002.

6. I have heard learned counsel for the parties and have gone through the impugned order. It appears that both the parties have filed separate suit and the claim of one of the parties is that Partition Suit No. 419 of 2002 was fil