Point of Law: Order 21 Rule 97, 98 and 101 empowers an executing court to determine dispute between the decree holder and a third party who resist such execution of decree.

JUDGMENT :

1. Heard Mr. BC Das, learned Senior counsel assisted by Ms. S Roy, learned counsel for the appellant. Also heard Mr. SP Choudhury, learned counsel for the caveator. Caveat stands discharged.

2. The present appeal is preferred under Section 100 of the Code of Civil Procedure’1908 assailing an order dated 24.02.2023 passed by the learned Civil Judge, Karimganj in Misc. Appeal No. 01/2022 whereby the order dated 07.01.2021 passed by the learned Munsiff No. 1, Karimganj dismissing Misc Case No. 215/2022, was affirmed.

3. The present appellant as petitioner preferred a petition under Order 21 Rule 97, 99 and 101 of the Code of Civil Procedure in Title Execution No. 06/2006 claiming right, title and interest and possession over the decreetal property decreed in TS No. 332/1992.

4. TS No. 332/1992 was filed by the predecessor-in-interest of the respondent Nos. 1 and 2 against the respondent Nos. 3, 4, 5, 6 and 7 claiming that predecessor-in-interest of the respondent Nos. 3 to 7 were tenant under the plaintiff over a suit house and a prayer for eviction was made.

5. The defendants denied the tenancy under the plaintiff and claimed that he has purchased the suit premises by a registered sale deed. The learned trial court under its judgment and decree dated 24.02.1995 and 06.03.1995 respectively dismissed the suit.

6. The plaintiff being aggrieved preferred an appeal, which was registered as TA No. 12/1995 and learned Appellate Court reversed the finding of the learned trial court and decreed the suit by holding that defendants were tenants under plaintiff and liable to be evicted from the suit house.

7. Such decision was challenged before this Court in CRP 256/2003, however, same was dismissed for non-prosecution by this court and thus the judgment passed in TA No. 12/1995 attained finality.

8. The decree was put into execution by filing Title Execution Case No. 06/2006. The judgment debtor filed an application under Section 47 CPC,’1908, which was registered as Misc. Case No. 14/2018, inter-alia, claiming that description of the suit land given in the decree was not correct. However, said Misc. Case was dismissed by the learned Executing Court and such dismissal order was unsuccessfully challenged before this Court in CRP No. 58/2011.

9. Thereafter, another person, namely, Malay Kar filed an application before the Executing Court under Order XXI Rule 97 resisting the execution of decree on the ground that he is co-sharer of the decreetal land and he is enjoying right, title, interest and possession over the suit property jointly through common tenant along with the decree holder and therefore decree was not executable without his permission. Such petition was also rejected by the learned Executing Court holding that a co-owner can maintain a suit for eviction and accordingly, the learned Court continued with the execution.

10. Thereafter, the judgment debtor filed yet another application under Section 151 CPC’1908 before the learned Executing Court with a prayer to absolve them from the Execution proceeding since they have in the meantime handed over khas possession of the decreetal land to Malay Kar (who claims to be co-sharer of the suit property and whose petition was earlier rejected) by executing an unregistered deed dated 11.07.2009. The learned executing court rejected such petition by its order dated 02.03.2020 holding that alleged handing over possession of the decreetal land is not legally done as Malay Kar is not entitled to get the possession of the decreetal property, rather the decree holder is entitled for such possession and accordingly, the learned executing court proceeded with the executing proceeding.

11. Thereafter, on 16.12.2020 the present appellant preferred an application under Order 21 Rule 91, 99, 101 resisting the decree, which was registered as Misc. Case No. 215/2020. The appellant claimed through the said petition title over the suit property on the basis of an registered deed of agreement for sale. Acc