The executing court has jurisdiction to adjudicate all claims related to rights and interests in property during execution proceedings, overriding the need for separate suits.

ORDER

01. This Civil Revision under Section 115 of the CPC , 1908 is preferred challenging the legality of order dated 08.02.2021 passed in RCSA No.5/2020 by the First Civil Judge, Class-II, Maheshwar, West Nimar (Annexure-1) whereby application of petitioner/defendant under Order 7 Rule 11 of the CPC (Annexure-4) has been rejected.

02. The facts of the case in brief are that the respondent/plaintiff Ganesh filed the Civil Suit through plaint (Annexure-2) for partition, declaration of title and permanent injunction regarding 0.729 RA of Survey No.26/2 Area 2.874 Hectare impleading the petitioners as defendant no.1 and 2 and respondent no.2 to 5 as defendant nos. 3 to 6.

03. The petitioners/defendants no.1 and 2 filed the application under Order 7 Rule 11(d) r/w section 151 of the CPC submitting that the suit is barred by law as the father of the plaintiff/respondent no.1 Narsingh was a party in suit filed by the petitioners herein and defendants Narsingh, Vishnu, Gajrajsingh and Sumer Singh were also party to that suit and the suit was filed regarding the land of Survey no.26/2 situated at Village-Etawadi and the suit was decreed vide judgment dated 10.12.2012 (Annexure-A/6) by Civil Judge, Class-II, Maheshwar, West Nimar in favour of the petitioner and possession was ordered to be delivered. The suit traveled upto Apex Court in which petitioner/plaintiffs were successful and they filed the execution proceedings before the trial Court. In the execution proceeding Ganesh filed an application (under Order 21 Rule 58, 97 and Section 151 CPC ). The application is pending for disposal but Ganesh/Respondent no.1 filed the separate civil suit for partition, declaration of title and permanent injunction through plaint (A/2) on 29.01.2020. In his application under Order 7 Rule 11 r/w Section 151 of the CPC (A/4) was filed. The application was opposed through reply (A/5) and the trial Court rejected the application regarding the reasons that the question of res judicata cannot be decided by the application under Order 7 Rule 11(d) of the CPC .

04. Challenging the legality of order, this appeal has been preferred on the ground that the impugned order is passed on the ground that the impugned order is passed without considering the provisions of Order 21 Rule 97 r/w Rule 101 of the CPC .

Heard.

05. Counsel for the respondent no.1/plaintiff opposed the prayer by supporting the order of the trial Court on the ground that the provision of Order 21 Rule 91, 97 of the CPC is for the holder of the decree of the possession of immovable property. It does not apply to the person claiming independent right and possession of the property.

Perused the record.

06. Order 21 Rule 101 of the CPC is reproduced hereunder:-

"101. Question to be determined.—All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

07. In the case of Shreenath & Another vs Rajesh & Others, AIR 1998 SC 1827 it has been held that the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21