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IN THE HIGH COURT OF JUDICATURE AT PATNA
ARUN KUMAR JHA, J.
Pappu Singh, S/o. Late Suryanath Singh - Petitioner
Versus
Chandra Prakash Arya, S/o. Late Badri Prasad Arya & Ors. - Respondents
Civil Miscellaneous Jurisdiction No. 118 of 2022
Decided On : 03-04-2024
CIVIL PROCEDURE - EXECUTION OF DECREES - ORDER 21 RULE 97, ARTICLE 227 - The court discussed the provisions of Order 21 Rule 97 of the Code of Civil Procedure, which allows a person in possession to object to execution proceedings. The court emphasized that the executing court must adjudicate on such objections, highlighting the importance of ensuring that all parties with a legitimate claim are heard before execution proceeds. The court also referenced Article 227 of the Constitution, which allows for supervisory jurisdiction over lower courts, and the need for expedient resolution of execution cases as per the Supreme Court's directive in Rahul S. Shah case.
Fact of the Case:
The petitioner, Arun Kumar Jha, sought to quash an order from the executing court that stayed execution proceedings based on an objection filed by the respondent, who claimed rights over certain plots of land. The petitioner had previously won a title suit and appeal declaring his ownership, but the respondent claimed possession based on an old sale deed and municipal records.
Finding of the Court:
The court found that the executing court had acted within its jurisdiction by allowing the objection under Order 21 Rule 97, as the objector had a right to contest the execution based on his possession. However, the stay on execution for all plots was deemed excessive and modified to apply only to the specific plots claimed by the objector.
Issues: Whether the executing court was correct in staying the execution proceedings based on the objection filed by the respondent, and whether the respondent had a legitimate claim to the plots in question.
Ratio Decidendi: The court held that under Order 21 Rule 97, a person in possession can raise objections to execution proceedings, and the executing court must adjudicate these claims. The court also noted that the executing court exceeded its jurisdiction by staying execution for all plots when the objection pertained only to specific ones.
Final Decision: The petition was dismissed with a modification that the stay on execution would only apply to the specific plots claimed by the objector, allowing execution to proceed for the remaining plots.
JUDGMENT :
Arun Kumar Jha, J.
The decree-holder/petitioner has filed the instant petition under Article 227 of the Constitution of India seeking following reliefs :
(ii) For issuance of an appropriate writ/order/direction, for directing the Learned Executing court to decide the Execution case No.03/207 filed by petitioner within short span of time and as well as within Time limit framed by larger bench of Hon’ble Apex Court in Civil Appeal No.1659-1660 of 2021 (Rahul S. Shah Vs. Jitendra Kumar Gandhi and others) reported in 2021 (3) BLJ 414 (SC) vide judgment dated 20.04.2021 by which Hon’ble Apex court has directed to the Executing courts to decide the execution case within six month.
(iii) For grant of any relief (s) the petitioner would be entitled to in the facts and circumstances of the case”.
2. The shorts facts of the case, as it appears from the record, are that Title Suit No.301/1999 was filed by the plaintiff/ decree-holder/petitioner and subsequent thereto Title Appeal No.24/2011 was filed which was decided vide judgment dated 09.11.2016 in favour of the decree-holder/petitioner. The Title Suit No.301/1999 was filed with a prayer that title and possession of plaintiff be declared over the suit land and in case the plaintiffs were found to be out of possession, the possession be restored through the process of the court. However, learned Sub Judge, 2nd, Kaimur at Bhabua dismissed the title suit vide judgment and decree dated 28.02.2011 and 15.03.2011, respectively. Against the dismissal of the title suit, the plaintiff preferred title appeal before the learned District Judge, Kaimur at Bhabua and the said appeal was decreed in favour of the decree-holder/petitioner by the learned Additional District Judge-5, Kaimur at Bhabua vide judgment and decree dated 09.11.2016 and 21.11.2016, respectively whereby the learned first appellate court set aside the judgment and decree of the learned trial court by declaring the title and possession of the decree-holder/petitioner over the suit land and further directed the defendant nos. 4 and 5 to remove the encroachment within one month. The said judgment and decree of the learned first appellate court remained unchallenged. After filing of the Execution Case No.03 of 2017, the objector/respondent no.1 filed objection under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) with averment that the land mentioned in the Execution Case No.03/2017 was purchased land of his grandmother, namely, Ramvarti Kuer, vide Sale Deed No.4328 dated 16.07.1943. Further averment was made that out of entire purchased land, the grandmother of objector/respondent no.1 has exchanged some part of land with Gajadhar Mallah vide Exchange Deed No.1294 dated 05.06.1944. However, the learned first appellate court disbelieved the existence and legality of Sale Deed dated 16.07.1943 in its judgment dated 09.11.2016 passed in Title Appeal No.24/2011. It also appears from the record that the objector/respondent no.1 claimed title and possession over Plot Nos.272, 273, 276, 277 and 278 on the basis of entry made in the municipal Khatiyan. Thereafter, the learned executing court heard both the sides and passed the order dated 08.04.2021 admitting the objections of the objector/respondent no.1 and stayed the execution proceeding. Aggrieved by the said order of the learned Sub Judge, 2nd, Kaimur at Bhabua, the decree-holder/petitioner has approached
Rule 97 read with Rule 101 of Order 21 post amendment wherein the executing court has to determine under Rule 101 Order 21 of the Code that the question raised has legally arisen between the parties ....
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
Execution of decree – Although Objector is not party to arbitral proceedings, he can seek and obtain relief if Award has not been given fairly.
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
The main legal point established in the judgment is that a decree obtained by a tenant against a licensee can be executable against subsequent purchasers who are in possession without any lawful decr....
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
A third party claiming under a judgment debtor cannot file an application under Order XXI Rule 97; they must file under Rule 99 instead.
A person in possession of property has the right to object to the execution of a decree under Order 21 Rule 97 CPC, and the trial court must consider such objections before proceeding with execution.
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