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2012 Supreme(J&K) 411
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Haji Mohd Shaban Ganai & Anr. -Appellant
Versus
Mushtaq Ahmad -Resopndent
C. Rev. No. 127/2008
Decided On : 22-08-2012
Mr. N. A. Kuchay, Advocate for Appellant.
Mr. M. Y. Parray, Advocate for Respondent.
The main legal point established in the judgment is that a person apprehending dispossession under a decree should utilize Order 21 Rule 99 to voice grievances and get rights determined, rather than filing a separate civil suit.
Headnote:
Order 21 Rule 101 CPC - Dispossession under a decree - [PROPERTY DISPUTE] - [Order 21 Rule 97, 99, 101] - The court discussed the scope of proceedings under Order 21 Rules 97, 99, and 101, emphasizing that all questions relating to right, title, or interest in the property arising between the parties are to be determined by the Court dealing with the application and not by a separate suit. The judgment highlighted the need for a person apprehending dispossession under a decree to utilize Order 21 Rule 99 to voice grievances and get rights determined, rather than filing a separate civil suit.
Fact of the Case:
The petitioner filed a civil suit to exercise their right to purchase a plot of land, which was decreed in their favor. During the execution proceedings, the respondent filed a separate civil suit seeking a declaratory decree and permanent injunction against the petitioners, claiming ownership of the same land.
Finding of the Court:
The court found that the respondent's suit was not barred under Order 21 Rule 101 CPC and dismissed the petitioners' application under Order 7 Rule 11 CPC. It held that the respondent could file an application under Order 21 Rule 99 CPC to determine his rights in the property.
Issues: The main issue was whether the respondent's suit was barred under Order 21 Rule 101 CPC and whether the petitioners' application under Order 7 Rule 11 CPC should be dismissed.
Ratio Decidendi: The court emphasized the need for a person apprehending dispossession under a decree to utilize Order 21 Rule 99 to voice grievances and get rights determined, rather than filing a separate civil suit. It held that the respondent's suit was not barred under Order 21 Rule 101 CPC.
Final Decision: The revision petition was allowed, and the respondent's plaint was rejected. The respondent was granted the liberty to file an application under Order 21 Rule 99 CPC to determine his rights in the property.
2. Shri Mohd Abt'ullah-vendee and Mst. Farzi-vendor were arrayed as defen#31;dants 1 and 2 in the suit. The suit was assigned to the Court of learned Sub Judge Budgam. The suit was decreed in exparte on 29th June, 2006. The petitioners were directed to deposit rest of the consideration amount (less by l/5th already depos#31;ited), with the Court for its payment to the judgment debtors. The petitioners after suit was decreed in their favour, filed an execution petition on 19.01.2008.
3. Shri Mushtaq Ahmad—present respondent, filed a Civil Suit during pen#31;dency of the execution proceedings, on 23.01.2008, registered as 233/Numbari, for declaration and permanent injunction against the petitioners and one Mohd Ashraf Baba.
4. The respondent's case before the Trial Court was that he had purchased the suit land vide sale deed dated 5th October, 2007, from Shri Mohd Ashraf Baba (defendant 3) in the suit and the decree obtained by the petitioners in Civil Suit titled Mohd Shaban Ganai and anr. v. Mohd Abdullah Ganai and anr. was outcome of fraud and ineffective and in operative against his rights. The respondent pleaded that the suit land was sold by Mohd Abdullah to one Khursheed Ahmad, who sold it to Mohd Ashraf Baba defendant 3 in the suit, from whom the respondent purchased the suit land vide sale deed dated 5th October, 2007. The respondent prayed for declaratory decree declaring the Judgment and decree dated 19th February, 2007 in the suit titled Haji Mohd Shaban Ganai and anr. v. Mohd Abdullah Ganai and anr., on 19th February, 2007 as null and vide and a declaratory decree declaring the respondent owner in possession of the suit land. The respondent also sought permanent injunction decree restraining the petitioners from interfering with his peaceful possession over the suit land.
5. The petitioners to seek rejection of the plaint filed an application before the Trial Court on 19.02.2008 under order 7 Rule 11 CPC. The petitioners' case was that the suit was barred under Order 21 Rule 101 CPC. The case set up was that the respondent as transferee from the Judgment debtor was claiming under him and was to approach the executing Court with his claim, in terms of Order 21 Rule 101 CPC and that suit was barred under the said provision.
6. The learned Trial Judge vide order dated 16.06.2008, dismissed the applica#31;tion. Learned Trial Judge was of the opinion that Order 21 Rule 101 CPC, was not at all attracted as the respondent (plaintiff) was not purchaser of the suit land at sale in execution of decree, apprehending dispossession by the decree holder.
7. The Trial Court order dated 16.06.2008, dismissing the application under Order 7 Rule 11 CPC, is questioned in the present revision petition on the ground that the Trial Judge has failed to exercise jurisdiction vested in him under law; that the impugned order is in conflict with the mandate of Order 21 Rule 101 CPC and that the order depicts mis-appreciation of the case projected and misapplication of law.
8. The changes made by amendment in Order 21 Rules 97, 99 and 101 have broadened the scope of proceedings arising from applications under Rules 97 99, and 101 to include all questions arising between the parties including a person not party to the execution proceedings, relevant to the adjudication of the applications including questions as to the
