The provisions of Order 21 Rule 97 CPC do not apply when the objector has already filed a separate suit for declaration of his independent right, title, and interest over the same suit property, and such suits are pending.

Challenge in this application is to the order dated 24.8.2007 passed by the learned Munsif, Ranchi in an Execution Proceeding vide Misc. Case No. 25 of 2007, whereby and whereunder the petition filed by the respondent no. 1 under Order 21 Order 97 (i)(ii) read with section 151 of the Code of Civil Procedure was admitted and a direction was issued to the parties to adduce evidence for deciding upon the claim of right, title and interest of the respondent no. 2 over the suit premises.

2. Facts of the case in brief is that the petitioner / plaintiff filed a suit for eviction of the respondent no. 2 from the suit premises under the provisions of section 11(1)(d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The suit was decreed in favour of the petitioner / plaintiff by order dated 5.8.2006.

3. The petitioner thereafter filed an application before the Court below under Order 21 Rule 11 CPC for execution of the decree. The application was registered as Execution Case No. 17 of 2006. After the Executing Court had issued writ of delivery of possession for executing the decree and when the decree was about to be executed, the respondent no. 1 filed an application before the Court below on 16.4.2007 under Order 21 Rule 97 (i)(ii) read with section 151 of the Code of Civil Procedure, resisting the execution of the decree. The ground stated by the respondent no. 1 against the execution of the decree was based on his independent claim of right and title over the suit premises. On receiving the application, a separate miscellaneous proceeding vide Misc. Case No. 25 of 2007 was registered.

4. The plea taken by the objector / respondent no. 1 was that the original owner of the suit property namely, Ranu Preeti Mukherjee had entered into an agreement for sale of the suit property with him way back on 14.6.1986 and pursuant to the agreement, she had delivered the possession of the suit premises to the objector and had also vested in him an authority by virtue of a power of attorney, authorizing him to deal with the suit property and also to realize rents from the occupiers of the suit premises whom the erstwhile owner had inducted in the building as tenants. The objector had further informed that he had filed a Title Suit No. 35 of 1990 before the court of Munsif, Ranchi for a decree for declaring his right, title and interest over the suit property on the basis of the agreement for sale. Another Title Suit for injunction against the petitioner vide Title Suit No. 333 of 2006 is also pending before the Sub Ordinate Judge-I, Ranchi. In both the suits as well as in the application filed before the Court below, the objector had challenged the status of the petitioner claiming that the petitioner is a stranger to the suit property and also alleging that in collusion with the respondent no. 2, the petitioner had obtained a collusive decree in his favour in the Eviction Suit.

5. By the impugned order, the learned court below while staying the further proceeding of Execution Case No. 17 of 2006, directed both the parties to adduce evidence in respect of their respective claims for deciding the disputed claims of right, title and interest of the parties over the suit premises.

6. Assailing the impugned order, Shri A.K. Sahani, learned counsel for the petitioner, submits that by admitting the application of the respondent no. 1 / objector, and by allowing the objector to adduce evidence in support of his independent claim of right, title and interest over the suit property, the learned court below has acted without jurisdiction and against the provisions of Order 21 Rule 97 as also against the provisions of Order 21 Rule 104 CPC. Learned counsel explains that the objector / respondent no. 1 had falsely claimed to be in possession of the suit property, although the fact is that he does not exercise any manner of possession over any portion of the suit property and the persons who are presently in occupation of the suit pro