Court confirms that a third party can challenge execution without being dispossessed, ensuring adherence to procedural law.

ORDER

27.06.2025 Heard Mr. B. Kaushik, learned counsel for the petitioners.

2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the correctness or otherwise of the order dated 01.04.2025, passed by the learned Civil Judge (Junior Division), Kamrup in Misc.

Case No. 58/2024.

2.1. It is to be noted here that vide impugned order dated 01.04.2025, the learned Civil Judge (Junior Division), Kamrup (hereinafter ‘trial Court’) has dismissed the petition filed by the petitioner under order XXI Rule 97 & 99 of the Code of Civil Procedure , filed by petitioner for declaring that the judgment and decree, dated 28.11.2011, passed in Title Suit No.09/2007, is null and void and not binding and also for declaring that the decree holder has no right, title and interest and the Borgaon L. P. School standing jointly upon the land owned by the petitioner described in the Schedule-Ka.

3. Mr. B. Kaushik, learned counsel for the petitioners submits that the petitioner, being a third party in the Title Execution Case No. 01/2012, had filed an application under Order XXI Rule 97 & 99 of the Code of Civil Procedure , for adjudication of his claim. But the learned Executing Court, on the erroneous assumption of law, has dismissed the same on the ground that a third party even cannot invoke order 21 Rule 97 CPC, in anticipation of being dispossessed and under Rule 99 CPC the applicant must be disposes from his/their land in execution by a holder of a decree. His contention is that even without being dispossessed the third party can maintain a petition under the said provisions of law. In support of his submission Mr. Kaushik has referred to a decision of Hon’ble Supreme Court in the case of Brahmdeo Chaudhary Vs Rishikesh Prasad Jaiswal reported in (1997) 3 SCC 694.

4. Under such circumstances, Mr. Kaushik, submits that impugned order may be set aside and the matter may remanded to the learned trial Court to dispose of the application, filed by the petitioners in the light of the decision of Hon’ble in the case of Brahmdeo Chaudhary(supra).

5. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 01.04.2025, and the relevant provision of law, i.e. Order XXI Rule 97 & 99 and also the decision of Hon’ble Supreme Court in the case of Brahmdeo Chaudhary(supra) and I find substance in the submissions of Mr. Kauhsik, learned counsel for the petitioners.

5.1. In Brahmdeo Chaudhary (supra) Hon'ble Supreme Court has held as follows:-

6. “It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21 Rule 97 CPC could have been offered by any person. The words ‘any person’ as contemplated by Order 21 Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. … Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21 Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the sa