1.Krishna Kumar (dead). 1(a). Meena Kumari. 1(b). Sushant Kumar. 1(c). Sonali v. 1.Narayan Chandra Swarnakar 2
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.6120 of 2014 1.Krishna Kumar (dead). 1(a). Meena Kumari. 1(b). Sushant Kumar. 1(c). Sonali Versus 1.Narayan Chandra Swarnakar 2.Smt. Urmila Debya 3.Sapan Kumar Mishra 4.Paresh Chandra Mishra 5.Jitendra Nath Mishra 6.Kishore Yadav 7.Rekha Singh -------- ..... … Petitioners …. …. Respondents CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND
Legal Reasoning
------ : Mr. Anil Kumar Sinha, Advocate For the Petitioner For the Res. Nos.1 to 5 : None For the Res. Nos.6 & 7 : Mr. RCP Sah, Advocate 11/20th June, 2024 -------- 1. Learned counsel for the petitioners and learned counsel for the respondent nos.6 and 7 are present but no one appears on behalf of the respondent nos. 1 to 5. 2. Heard the learned counsel for the parties and perused the record. 3. The instant writ petition has been directed on behalf of the petitioners against the orders dated 20th August, 2013 and 23rd September, 2014 passed by the learned Civil Judge (Senior Division)-I, Bokaro in Misc. Case No.09 of 2013, whereby the application filed by the respondent no.1 under Order XXI, Rule 97, 99 and 100 read with Section 151 of the Civil Procedure Code was admitted by the trail Court and further direction was passed to adduce the evidence. 4. Learned counsel for the petitioner has submitted that the petitioner has filed the suit for specific performance before the court of Civil Judge Senior Division-I, Bokaro which was numbered as Title Suit No.39 of 1973. The suit of the plaintiff was decreed on 27th July, 1976 for the specific performance in favour of the plaintiff/petitioner. 5. Aggrieved by the impugned judgment and decree dated 27th July, 1976, an appeal being First Appeal No.38 of 1978 was preferred by the defendant no.2 and that very appeal was also allowed by a co-ordinate Bench of this Court on 15th January, 1988. 6. Aggrieved by the impugned judgment dated 15th January, 1988, the L.P.A. No.54 of 1988(R) was filed and same was allowed on 1st September, 1999. 7. Again, the order dated 1st September, 1999 was assailed in Civil Appeal No.109 of 2001 before the Hon’ble Apex Court and the same was dismissed vide order dated 16th August, 2007 with the modification directing the defendant no.1 to execute and register the sale deed in favour of the plaintiff within three months from the date of passing of the order dated 16th August, 2007, in failure, the trial court was to execute the sale deed in favour of the plaintiff in accordance with the law. 8. The petitioner/plaintiff had filed the Execution Case No.03 of 2008 and the same is pending before the executing Court. During pendency of the execution proceeding, one stranger Narayan Chandra Swarnkar had moved an application under Order XXI Rule 97, 99 and 100 read with Section 151 of the C.P.C. which was registered as Misc. Case No.09 of 2013 arising out of Execution Case No.03 of 2008. 9. The Misc. Case No.09 of 2013 was admitted on the very first day issuing notice to the Opposite Party/decree holder for appearance. 10. On behalf of the decree holder, the objection was filed in Misc. Case No.09 of 2013 which is Annexure No.6 of this writ petition. In Misc. Case No.09 of 2013, the applicant Narayan Chandra Swarnakar had moved the application with the prayer to fix the date for adducing evidence. Against that application, objection was filed on behalf of the decree holder which is Annexure No.8 to this writ petition. The learned executing court - 2 - passed the order dated 23rd September, 2014 which is Annexure No.10, whereby Narayan Chandra Swarnakar was permitted to adduce the evidence. 11. Aggrieved from the orders dated 20th August, 2013 and 23rd September, 2014, the petitioner has filed this writ petition. 12. It is the settled law that all the questions including right, title or interest in the property arising between the parties to the proceeding under Sections 97 and 99 of the CPC shall be determined by the Court dealing with execution proceeding and the same cannot be challenged by way of separate suit. Therefore in view of Order XXI Rule 101 CPC, Narayan Chandra Swarnakar had moved an application under Order XXI Rule 97 of CPC. This Narayan Chandra Swarnakar was the stranger and he was not party to the original suit, therefore, he had moved application claiming his interest in the property in question of the Execution Suit No.03 of 2008. 13. The learned executing court on the very first date has admitted the application filed under Order XXI Rule 97, 99 and 100 of the CPC read with Section 151 CPC vide order dated 20th August, 2013 registering the same as Misc. Case No.09 of 2013 and notice was issued to the decree holder, thereafter, the decree holder also filed the objection and the application which was moved on behalf of the applicant Narayan Chandra Swarnakar for fixing the date for adducing evidence was also allowed by the order dated 23rd September, 2014. 14. Whether the applicant Narayan Chandra Swarnakar of Misc. Case No.09 of 2013 was having any collusion with the judgment debtor of Execution Case No.03 of 2008 or whether the applicant of Misc. Case No.09 of 2013, the stranger, was having any right, title or interest in the property in question, the same can be decided by the very executing court in miscellaneous proceeding under Order XXI Rule 97 CPC. If there was any requirement of adducing evidence by either parties, the executing court was to give opportunity to produce - 3 - the evidence, therefore, the impugned orders dated 20th August, 2013 and 23rd September, 2014 passed by the learned Civil Judge (Senior Division)-I, Bokaro bear no infirmity. Further it is also pertinent to mention here that no lis has been decided by the executing court by passing these impugned orders. 15. The petitioner, who is also the decree holder has preferred this writ petition in the year 2014 and the execution of the sale deed of Execution Case No.03 of 2008 is still pending, keeping in view the pendency of the Execution Case no.03 of 2008, the learned executing court is directed to conclude the proceeding of Misc. Case No.09 of 2013 within a period of two months without granting any unnecessary adjournment moved by the either parties. 16. Accordingly, this writ petition is, hereby, disposed of with direction as aforesaid. 17. Let a copy of this order be communicated to the learned executing court through FAX. Rohit/ (Subhash Chand, J.) - 4 -