IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Civil Revision No. 121 of 2023

Chandra Prabha ………………… Petitioner

Versus

Kiran Dutta and Another ……………Respondents

With

Civil Revision No. 122 of 2023

Chandra Prabha ………………… Petitioner

Versus

Kiran Dutta and Another ……………Respondents

With

Civil Revision No. 123 of 2023

Chandra Prabha ………………… Petitioner

Versus

Kiran Dutta and Another ……………Respondents

Present:

Mr. Piyush Garg, learned counsel for the petitioner.

Mr. Neeraj Garg with Mr. Yashpal Singh, learned counsel for the respondents.

Hon’ble Mr. Justice Rakesh Thapliyal, J.

1. All these three revisions are arising out of execution proceeding initiated by the respondents for execution of the Trial Court judgment dated 28.01.2021 passed in three different SCC suits i.e. SCC Suit No. 11 of 2014, SCC Suit No. 12 of 2014 and SCC Suit No. 11 of 2014. In all these three SCC suits the present revisionist moved an application under Order 1 Rule 10 of CPC, but the same was rejected on 05.02.2016, against which three civil revisions were preferred, which were dismissed on 10.07.2017 by observing that if such an application moved under Order 1 Rule 10 of CPC is allowed in the SCC suit then the whole litigation will be converted into suit of the title between Smt. Kiran Dutta and Smt. Chandra Prabha, which is not permissible and further that

the application has rightly been rejected because there is every probability that such an application has been moved by Smt.

Chandra Prabha with the collusion of the tenant.

2. Thereafter, in the execution proceeding the present revisionist moved three separate applications under Order 21 Rule 97 of CPC. In the meantime against the original judgment and decree passed in all the three SCC suits the present revisionist filed three other civil revisions though Order 1 Rule 10 of CPC application was already rejected by the SCC court. All these civil revisions Nos. 19, 20 and 36 of 2021 are also listed before this court, which were dismissed in default. Now, the restoration application has been moved.

3. Thereafter, the execution application was moved for execution of the judgment and decree passed in all the three SCC suits in which the present revisionists whose application under Order 1 Rule 10 CPC was already rejected moved an application under Order 21 Rule 97 of CPC for protecting the possession over the property in question and as well as for determination of the title and interest over the property in question.

4. Subsequently, an another application was moved by the revisionist on 23.05.2023 for framing of issue for deciding application under Order XXI Rule 97 of CPC and also to lead the evidence. All these three applications were rejected by the First Additional District Judge, Dehradun on 09.08.2023 by observing that there is no need to frame the issue to adjudicate the application under Order XXI Rule 97 as one of the basic principle of law is that in such matter the adjudication can be done on the admitted facts or on the averments made in the application under Order 21 Rule 97. The First Additional District Judge further observed in the order impugned that the court can direct “the parties to adduce evidence for such determination if the court deems it necessary but as far as this case is concerned, this court feels that the present matter can be decided on the averments made by the parties”.

5. Being aggrieved with the order passed by the First Additional District Judge dated 09.08.2023 in all the three applications filed in support of application under Order 21 Rule 97 in the three execution proceedings arising out of three SCC suits the instant three civil revisions have been preferred.

6. Mr. Piyush Garg, learned counsel for the revisionist submits that the application under Order 21 Rule 97 cannot be decided without framing the issue and in support of his argument he refers Order 21 Rule 97 r/w Rule 101 and 103, which are being quoted hereinunder:

“97. Resistance or obstruction to possession of immovable property.

(1) Whe