IMPORTANT POINT
The main legal point established in the judgment is the requirement for the Executing Court to adjudicate upon controversies between the parties in accordance with the provisions of Order XXI Rule 97 to 106 of the Code and the prohibition of resistance by a transferee pendentelite of a judgment-debtor.

JUDGMENT :

This is an appeal under Section 100 against the Judgment and Decree dated 09.12.2022 passed in Misc. Appeal No. 02/2021 by the Court of the learned Civil Judge, Lakhimpur, North Lakhimpur, whereby the appeal filed against the rejection of an application under Order XXI Rules 97/99 and 101 of the Code of Civil Procedure, 1908 (for short, the Code) was affirmed. This Court by an order dated 08.05.2024 had admitted the said plea by formulating a substantial question of law, which reads as under:-

“(i). Whether the learned Courts below were justified in rejecting the application under Order XXI Rules 97 and 101 filed by the appellant with an observation that the appellant ought to have filed a separate suit? ”

2. The question, therefore, arises in the instant appeal as to whether the learned Executing Court as well as the First Appellate Court were justified in dismissing the application and relegating the appellant to file a separate suit. Taking into account the short question, this Court had therefore, taken up the matter today as any delay in disposal of the instant proceedings would neither be in the interest of the decree holder nor the appellant.

3. I have heard Mr. A.R. Shome, the learned counsel appearing on behalf of the appellant as well as Ms. P. Bhattacharjee, the learned counsel appearing on behalf of the respondents.

4. The Supreme Court in the case of Brahmdeo Chaudhary Vs Rishikesh Prasad Jaiswal and Anr. reported in (1997) 3 SCC 694 culled out as to what a conjoint reading of Order XXI Rules 97, 98, 99 and 101 of the Code projects. Paragraph 8 and 9 of the said Judgment being relevant is reproduced herein under:-

“8. A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.

(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him.If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appel