A judgment debtor cannot maintain an application under Order 21 Rule 97 of the CPC to resist possession, as their rights have already been adjudicated in the decree.

JUDGMENT :

1. This appeal is filed challenging the order dated 17.02.2024 in E.A. No. 93 of 2023 in E.P. No. 138 of 2011 of the Subordinate Judges Court, Hosdurg. Appellant herein was the petitioner in the E.A. and judgment debtor in the E.P. Respondent herein was the respondent in the E.A. and decree holder in the E.P.

2. Appellant is aggrieved by the dismissal of an application filed by him under Order 21 Rule 97 of the Code of Civil Procedure (CPC) resisting delivery of possession to the auction purchaser. E.A. No. 60 of 2023 had been filed by the auction purchaser to pass an order of delivery of possession of the property purchased by him in court auction. Appellant filed E.A. No. 93 of 2023 contending that he has been residing with his wife and children in his house situated in a relevant property which was a land having an extent of 30 cents. He contended that he came to know about the delivery proceedings only when Amin came to take possession of the property. He resisted delivery contending that the said property had already been subjected to forfeiture by the Judicial First Class Magistrate Court-I, Hosdurg and the learned Magistrate after attaching the said property had directed the District Collector, Kasaragod to act as Administrator of the same. Thereafter, the appellant had sought permission from the JFCM to permit him and his family to stay in the said property and the said permission was granted. Pursuant to the same, the appellant and his family have been residing there. He had thus validly obstructed the execution and had filed the EA. The execution court, however, without clearly understanding the scope of Order 21 Rule 97, dismissed the application preferred by him vide the impugned order without affording him an opportunity to adduce evidence. Hence this appeal.

3. Heard Sri. Saneesh Kumar K. Advocate, for the appellant and Smt.Narayani Harikrishnan, Advocate for the respondent.

4. The learned counsel appearing for the appellant contended that the Sub Court had failed to adjudicate the claim put forth by the appellant in the true perspective and contrary to the mandates of Order 21 Rule 101. The learned counsel contended that all questions, including those relating to right, title or interest in the property arising between the parties to a proceedings on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, are to be determined by the court dealing with the application and not by a separate suit. Hence it was the duty of the Sub Court to decide on such questions. However, the application had been dismissed in a summary manner and without conducting any enquiry or granting any opportunity to the appellant to adduce or establish his case. The learned counsel relied on the dictum laid down by the Hon’ble Supreme Court in Anwarbi v. Pramod D.A. Joshi and others, (2000) 10 SCC 405 and contended that when a person in possession of immovable property obstructs execution of a decree for possession claiming title, he may not be dispossessed till rights are adjudicated in appropriate proceedings. It is thus contended that the Sub Court had, without looking into the scope of wordings of Order 21 Rule 97, dismissed the application. The Sub Court had overlooked the fact that the appellant had been put in possession by an order of the JFCM and the said fact had not been denied by the respondent in the counter affidavit. Without affording an opportunity to the appellant to substantiate his case, the Sub Court had dismissed his application. The case put forth by the appellant in the application mandated an adjudication which was not granted, considered or discussed. According to the learned counsel, there ought to have been an inquiry or adjudication as envisaged under Order 21 Rule 101, however such an inquiry had not taken place. Reliance is placed on the dictum laid down in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, (1997) 3 SCC 694, Koyaku