Tansir Ahmad And 9 Others v. Naushad Ali

appellants and Shri Iqbal Ahmad, learned counsel for the respondent.

The instant appeal has been filed under Order XLIII Rule 1(u) of Civil Procedure Code, 1908 challenging the order dated

21.05.2024 whereby the learned Additional District Judge, Court No.13, Ghaziabad has set aside the order dated 14.03.2024 passed by the executing court and after allowing the Civil Appeal No.34 of 2024 (Naushad Ali v. Tansir Ahmad and others) preferred by the respondents, the learned Additional District Judge has remanded the matter to the executing court to decide objections preferred by the respondent.

Assailing the order impugned, learned counsel for the appellants submits that Original Suit No.1320 of 2002 (Tansir Ahmad and others v. Yaseen and another) filed between some parties was decreed by the trial court on 27.07.2005. When the decree was put into execution, the respondent-Naushad Ali, who was not party to the suit proceedings, filed objections under Section 47 read with Order XXI Rules 97, 98, 99, 100 and 101 CPC. The objections were rejected by the executing court on 14.03.2024, against which, civil appeal was preferred which has been illegally allowed. He submits that respondent has set up theory of oral hiba whereas decree drawn in favour of the appellants is on the basis of sale deed and since the respondent was not a party to the proceedings, he had no right to interfere in the execution proceedings.

Per contra, Shri Iqbal Ahmad submits that the decree is ex- parte in nature and seriously affects the rights of the respondent and, therefore, instead of filing a separate suit, he preferred objections in execution proceedings. He further submits that the appellate court has dealt with the provisions of law and has not recorded any finding on rival contentions but has remitted the matter to the executing court to decide the matter afresh. He submits that appeal be dismissed and the executing court may be directed to decide the objections in a time bound manner.

Having heard learned counsel for the parties, I find that the respondent-Naushad Ali was not a party to the original suit which was decreed ex-parte on 27.07.2005. The decree is for permanent prohibitory injunction restraining the defendants from interfering in possession over the house described in the plaint. The executing court, vide order dated 14.03.2024, rejected the objections substantially on the ground that objector was not party to the suit proceedings nor did he fall under the category of representative of the original parties and, hence, the objections filed by him had no force.

The Court finds that the objections were preferred by the respondent-Naushad Ali with the caption of Section 47 read with Order XXI Rules 97, 98, 99, 100 and 101 CPC. Although, Section 47 deals with the objections preferred by the judgment debtor, provisions of Order XXI Rules 97, 98, 99, 100 and 101 CPC apply when a third party enters in the execution proceedings. However, considering the fact that respondent was not party to the suit proceedings, objections would be treated under Order XXI Rules 97, 98, 99, 100 and 101 CPC and not under Section 47 CPC.

The first appellate court has dealt with all the aforesaid provisions and has observed that these provisions contemplate that right of such parties cannot be decided by way of separate suit proceedings and, therefore, the executing court should have decided the objections.

This Court does not find any error in the view taken by the first appellate court and, therefore, it is observed that no finding, if any, recorded by first appellate court on merits of the claim set up by Naushad Ali would be treated as final and the remand order would be treated as an open remand to the executing court for dealing with rival submissions of both the parties.

The executing court is directed to decide the objections on merits expeditiously and, in accordance with law, after providing full opportunity of hearing to the parties within a period of four months from the date of filing true attested copy of this order by either side.

The period of strike by lawyers shall be excluded from the period fixed by this Court under this order.