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2019 Supreme(MP) 506
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
Vivek Rusia, J.
Sanjay Kumar – Appellant
Versus
Sushil Kumar and Another - Respondents
S.A. No. 1319 of 2019
Decided On : 21-11-2019
For the Appellant : R.R. Chandrawad
The decree-holder, affirmed up to the Apex Court, is entitled to enjoy the fruits of the decree.
Headnote:
Civil Procedure Code - Execution of Decree - Order 21, Rule 97 - Rule 101 - Summary
Fact of the Case:
The plaintiff filed a civil suit against the defendant regarding the use of a common lane. The lower courts ruled in favor of the plaintiff, and the defendant's appeals were dismissed. The defendant then filed an objection under Order 21, Rule 97 of the Civil Procedure Code during the execution proceedings, claiming the lane to be a public lane and resisting the execution of the decree against him.
Finding of the Court:
The court found that the defendant's objection under Order 21, Rule 97 was not maintainable as the issue of possession and dispossession was not involved in the execution of the decree. The court also held that the decree-holder, affirmed up to the Apex Court, was entitled to enjoy the fruits of the decree.
Issues: The main issue was the maintainability of the defendant's objection under Order 21, Rule 97 during the execution proceedings.
Ratio Decidendi: The court held that the provisions of Order 21, Rule 97 to Rule 106 of the Civil Procedure Code are related to resistance to delivery of possession to the decree-holder or the purchaser. It further emphasized that the objection under Rule 97 is only applicable when the holder of a decree for possession of immovable property is resisted or obstructed by any person obtaining possession of the property.
Final Decision: The appeal was dismissed in limine, and no order as to costs was given.
JUDGMENT :
Heard on the question of admission. Record perused.
The appellant has filed the present second appeal being aggrieved by judgment dated 8-1-2019 passed by Civil Judge, Class-I, Khategaon dismissing the application filed under Order 21, Rule 97 of Civil Procedure Code and judgment dated 19-2-2019 passed by Addl. District Judge, Khategaon, District Dewas dismissing the first appeal.
2. Brief facts of the case are as under :
(i) Respondent No. 1 being the plaintiff filed the Civil Suit No. 28-A/2005 against respondent No. 2/defendant that on the East side of his house, there is a plot of defendant admeasuring 204 x 24 ft. and between the house of plaintiff and defendant, there is a 6ft. wide common lane belonging to him. The defendant has started construction and illegally opened the door and windows and ventilator on the lane. He has also raised the construction over 2ft. area of the lane. The defendant filed the written statement refuting the averments made in the plaint by submitting that land bearing Survey No. 297 is a public lane and he is also having right to use the said lane. The defendant also filed the counter-claim.
(ii) Vide judgment and decree dated 7-12-2009, learned Civil Judge has dismissed the suit as well as the counter-claim.
(iii) Being aggrieved by the aforesaid judgment and decree, the plaintiff filed First Appeal No. 3-A/2010 and the defendant filed First Appeal No. 4-A/2010. Vide judgment and decree dated 21-5-2010, learned Addl. District Judge has allowed the appeal filed by the plaintiff and dismissed the appeal filed by defendant. Learned Addl. District Judge has held that the lane is belonging to the plaintiff and his family members and they are in possession of the same. Learned Addl. District Judge also held that the defendant is not having any right to open the door, windows and the ventilator in the lane and directed him to close the same with immediate effect. He has also been directed to remove the illegal construction.
(iv) Against the aforesaid judgment and decree, defendant preferred Second Appeal before this Court and thereafter SLP before the Apex Court. The appeal as well as the SLP both have been dismissed and the judgment and decree passed in favour of the plaintiff has attained finality.
(v) Thereafter, the plaintiff filed the execution proceedings on 30-7-2011 before the Civil Judge, Class-I, Khategaon seeking direction to the defendant to close the door, windows and ventilator and to remove the encroachment. In the said execution proceeding, present appellant filed the application/objection under Order 21, Rule 97 on 9-8-2018 by submitting that he has also a house next to the house of defendant and the lane in question is a public lane, therefore, the decree cannot be executed against him. The objector cannot be restrained from using the lane. Learned Civil Judge vide order dated 8-1-2019 has dismissed the application.
(vi) Against the aforesaid order of Civil Judge, the objector preferred the first appeal before the Addl. District Judge. Vide order dated 19-2-2019, learned Addl. District Judge has dismissed the appeal, hence the present second appeal before this Court.
3. Shri R. R. Chandrawad, learned counsel appearing for the appellant, submits that while dismissing the appeal on the ground of maintainability, learned lower Appellate Court did not consider the provision of Order 21, Rule 101 which specifically provides that all the questions including questions relating to right, title or interest in the property are liable to be determined by the executing Court. Since the suit is barred hence all the objections are liable to be decided by the executing Court in an application filed under Order 21, Rule 97 of Civil Procedure Code, therefore, the present appellant/objector is not having any remedy, but to file an application under Order 21, Rule 97.
4. After hearing learned counsel for the appellant, I am of the opinion that the learned Addl. District Judge while dismissing the ap
