A party can invoke remedies under Order XXI Rule 97 without being dispossessed first; evidence may be required to assess maintainability.

J U D G M E N T

Under challenge is Ext.P4 order whereby the court below deferred the decision regarding maintainability of the petition under Order XX1 Rule 97 to a future date since the court below felt that evidence in the matter is absolutely necessary before a decision can be arrived at finally.

2. The facts absolutely necessary for the disposal of this petition are as follows:

The petitioner before this Court obtained a decree in his favour. While things so stood, it appears that the respondent herein raised a claim of Kudikidappu and instituted a suit on that basis where claim regarding Kudikidappu was referred to the Land Tribunal for decision. Probably unable to get a stay of execution proceedings in the present suit, she moved a petition under Order XX1 Rule 97 praying that unless her status is determined in the other suit in which there is already a reference regarding her status, the execution proceedings may not be continued. She assailed the execution proceedings as based on fraudulent and the decree was obtained behind their back with the sole intention of evicting her.

3. The respondent before this Court contested the petition who pointed out that the petition itself is not maintainable. The court below considered the issue preliminarily and found that more materials are required before a decision can be arrived at and therefore deferred the case with the opinion regarding the maintainability. Relying on the decision reported in Vol Builders Private Limited & Anr. v. Janab Salim Saheb & Anr. [AIR 2009 Jharkhand 84], the learned counsel for the petitioner contended that as there is already a suit, a petition in the same nature will not lie before the execution court. It is also contended that a petition under Order XX1 Rule 97 is not maintainable.

4. The decision relied on by the learned counsel dealt with a situation where prior in the suit as well as in the Original Petition were identical and it was in that context, the observations were made. In the case on hand, there is no prayer by the respondent before this Court to refer the claim of Kudikidappu to the Land Tribunal. But her only prayer is that the execution proceedings may not be proceeded with until the suit is decided in which she has raised a claim of Kudikidappu. So, the principle laid down in the decision relied on can have no application to the facts of the case.

5. The second contention is also equally without fail.

It is now well settled that the person need not wait until his case till she/he dispossess of filing petition presumably under Order XX1 Rule 97.

6. There is no adverse order passed against the petitioner as such now. The court has only postponed the decision regarding maintainability feeling that some evidence may be required in that regard. One fails to understand how the petitioner is aggrieved.

However, this petition is disposed of with a direction to the court below to take up E.A. No. 98 of 2014 in E.P.No. 72 of 2013 in O.S.No. 188 of 1993 as early as possible and dispose it of on merits, if necessary after taking evidence if it so feels, within a period of four months from the date of receipt of a copy of this judgment.