An application under Order 21 Rule 97 CPC by a tenant who has contested proceedings as a judgment debtor is not maintainable and constitutes an abuse of judicial process.

JUDGMENT :

Pankaj Bhatia, J.

1. The present petition has been filed by the petitioner challenging an order dated 20.02.2024 passed by the Additional District Judge, E.C. Act Court no.4 Lucknow in Misc. Case No.257 of 2023 ( Jai Prakash Singh Vs. Hari Shankar Kushwaha ) whereby directions were issued for framing the issues under Order 21 Rule 101 CPC. The petitioner is also sought the quashing of entire proceedings of Misc. Case No.257 of 2023 ( Jai Prakash Singh Vs. Hari Shankar Kushwaha ) under Order 21 Rule 97, 98 and 101 CPC pending before the Additional District Judge, EC Act, Court no.4. A further prayer has been sought seeking direction for concluding the Execution Case No.23 of 2021 ( Hari Shankar Kushwaha vs. Jai Prakash Singh ).

2. The facts, in brief, are that the landlord, the petitioner herein, filed a SCC Suit for arrears of rent, eviction and damages against the tenant Jai Prakash Singh bearing SCC Suit No.26 of 2010. On 01.02.2011, Sri Jai Prakash Singh, the tenant, filed a written statement in which a ground was taken that he had lend a sum of Rs.50,000/- to the landlord and an agreement was also executed in between the parties being a notarized agreement. On 29.10.2013, the SCC Court dismissed the suit filed by the landlord against which a SCC Revision No.1 of 2014 was preferred and during the pendency of the revision, the court directed the verification of the signatures on the alleged agreement through an expert, in which it was revealed that the signatures on the alleged agreement were forged, as such, the SCC Revision No.1 of 2014 was allowed on 07.11.2016. The judgment of the SCC Court dated 29.10.2013 was set aside and the matter was remanded for deciding the suit expeditiously. Ultimately on 08.02.2021, the SCC Suit was decreed and a decree for eviction was passed, against which a SCC Revision No.5 of 2021 was filed and is pending before the Hon'ble High Court. It has been clarified by the High Court vide its order dated 02.09.2021 that there is no interim order pending and directions were also issued to the Executing Court to proceed for execution, which is said to be pending.

3. During the pendency of the execution, objections were initially filed under Section 47 of CPC by the tenant, the said are still said to be pending. In the said objection, prayer was to quash the judgment and decree dated 08.02.2021 passed in SCC Suit No.26 of 2010. The tenant thereafter filed an application under Order 21 Rule 97, 98 and 101 of IPC. In the said application, which is on record as Annexure no.10, the entire history of the case was pleaded and a prayer was made for setting aside the judgment and decree dated 08.02.2021 passed in SCC Suit No.26 of 2010. The petitioner filed objection and sought dismissal of the application which was registered as Misc. Case No.257 of 2023, however, no orders were passed on the said application and straightway an order came to be passed for framing of the issues under Order 21 Rule 101 CPC.

4. In the backdrop of the said facts, the contention of the counsel for the petitioner is that once the petitioner was a judgment debtor and had contested the entire suit, the application under Order 21 Rule 97 CPC at his instance was not maintainable and thus, the entire proceedings deserves to be quashed.

5. The counsel for the respondents, on the other hand, strenuously argues on the strength of the Order 21 Rule 97 CPC that the application is maintainable at the instance of any party. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the cases of Brahmadeo Choudhary vs. Rishikesh Prasad Jaiswal and another (1997) 3 SCC 694 ; Smt. Ved Kumari through her LRs Dr. Vijay Agarwal vs.