AT CHANDIGARH v. Jagdish Chand & Ors.

Plaintiff-respondent no.1 filed a suit which was decreed and he sought the execution thereof. Notified Area Committee, Hassanpur (for brevity, `the N.A.C.') was originally impleaded as defendant no.3 in the suit, C.R.No.4897 of 2008 -2- .... but during the pendency of the proceedings, the N.A.C. was abolished and the property in question allegedly vested in the petitioner. In view of this, the plaintiff sought to give up the N.A.C. as a defendant as no relief was claimed against it. His prayer was allowed. According to the petitioner, the property in question belongs to the Gram Panchayat, Hassanpur and it is in possession thereof. In the execution petition preferred by the plaintiff, the petitioner preferred objections which were summarily dismissed in the first instance leading to the filing of C.R.No.3940 of 2006 which was decided by this Court vide order dated 7.8.2007. The relevant part of the said order is extracted below:- “ Learned counsel for the petitioner has challenged this order firstly on the ground that the decree dated 20.9.1978 was not binding on the petitioner as the name of Gram Panchayat was deleted on the statement made by the plaintiff-decree holder. In that view of the matter, the contention of the learned counsel for the petitioner is that the objections raised by it were third party objections and, therefore, required to be adjudicated after giving an opportunity to the parties to prove their case as it has to be tried as a civil suit. The contention of the learned counsel for the petitioner, therefore, is that summarily dismissal of its objections cannot be sustained in law. Learned counsel for the respondent, however, submits that as the petitioner had not asked for an opportunity to lead C.R.No.4897 of 2008 -3- .... evidence, therefore, the court was justified in summarily rejecting the objections. The contention of the learned counsel for the respondents cannot be accepted as the Executing Court was bound to follow the law and established procedure as envisaged under Order 21 Rule 97 of the Code to deal with third party objections to the execution. Consequently, the revision petition is allowed and the impugned part of the order is set aside and case is remanded to the learned Executing Court to dispose of the objections filed by the petitioner after framing issues and giving opportunity to the parties to lead evidence in support of their stand.” Once again, the Executing Court has dismissed the objections of the petitioner purportedly under Order 21 Rule 97 of the C.P.C. vide the impugned order. At the out-set, learned counsel for respondent no.1 raised a preliminary objection that the revision petition against such an order is not maintainable and that the same is appealable. He contended that the matter has been dealt with by the Executing Court in view of the observations of this Court made in order dated 7.8.2007 by treating the objections as the one under Order 21 Rule 97 of the C.P.C., and the same have been decided in accordance with the provisions of Order 21 Rules 98 and 100 of the C.P.C. and the orders so passed are appealable. In support of this contention, he placed reliance on a judgment of the Supreme Court in S.Rajeswari Versus S.N.Kulasekaran & Ors., 2006(4) R.C.R. (Civil) 180. C.R.No.4897 of 2008 -4- .... On the other hand, learned counsel for the petitioner contended that the objections which have been decided by the Executing Court, are subject to revision and to advance this contention, he placed reliance on a judgment of this Court in Suresh Kumar Versus Niranjan Singh, 2004(4) R.C.R. (Civil) 140 (P&H). After hearing the learned counsel for the parties, I am of the opinion that the revision petition is misconceived. Order 21 Rule 97 of the C.P.C. clearly provides that where the execution of a decree is resisted or obstructed, the decree holder may make an application to the Court complaining of such resistance or obstruction, whereupon the Court shall proceed to adjudicate upon that application in accordance with the provisions of Rules 98 to 100. Rule 101 of Order 21 of the C.P.C. further clothes the Court with a power to determine all questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 and which are relevant to the adjudication of the application. Rule 103 goes on to provide that an order so passed shall have the force of a decree. If the facts of the instant case are to be seen, then the petitioner was nowhere in picture and is a complete stranger to the decree. It, however, claims to be in possession and, therefore, objects to the execution of the decree. This Court, vide its order dated 7.8.2007 passed in C.R.No.3940 of 2006, had remanded the matter back to the Executing Court and directed it to proceed in accordance with law contemplated while determining the application under Order 21 Rule 97 of the C.P.C. In such C.R.No.4897 of 2008 -5- .... an eventuality, the Executing Court did resort to the procedure to determine the questions of right, title and interest as is required under the law and, therefore, took recourse to Rules 98 to 101 of Order 21 of the C.P.C. The impugned order was, therefore, clearly appealable and not revisable as the provisions of Order 21 Rule 103 of the C.P.C. would give it colour of a decree. In S.Rajeswari Versus S.N.Kulasekaran & Ors (supra), the Supreme Court observed in paragraphs 11 & 13 of the judgment as under:- “11. Having heard learned counsel for the parties, we are satisfied that in a case of this nature, the respondent No.1 ought to have filed an application under Order XXI, Rule 97 of the Code of Civil Procedure. Order XXI, Rule 97 clearly provides that where execution of decree is resisted or obstructed by any person, the decree-holder may make an application to the court complaining of such resistance or obstruction, whereupon the court shall proceed to adjudicate upon the application in accordance with the provisions contained in the Code. Rules 98 to 100 are the Rules which provide the manner which such an application has to be dealt with. Under Rule 101, all questions including question relating to right, title and interest of property arising between the parties to the proceeding and relevant to the adjudication of the application, have to be determined by the court dealing with the said application. Rule 103 provides that when an application is adjudicated upon C.R.No.4897 of 2008 -6- .... under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. It thus follows that if an application is made under Order XXI, Rule 97, which is adjudicated upon by the court, the adjudicatory order is treated as a decree against which an appeal may be filed. In the instant case, therefore, since the adjudicatory order passed by the executing court went against respondent No.1, he ought to have filed an appeal before the High Court.

13. Learned senior counsel for the appellant-obstructor submitted before us that the application filed under Section 151, C.P.C. being not maintainable nothing survived for further consideration. Having regard to the fact that the executing court substantially followed the procedure laid down by Rules 98 to 100 and thereafter passed an adjudicatory order, we may hold in favour of the respondent No.1 to the extent that the application though filed with the label of Section 151, C.P.C. was in fact treated as one under Order XXI, Rule 97. This, however, does not resolve the controversy before us because even if we treat the said application under Section 151,C.P.C. as one under Order XXI, Rule 97, CPC, the order passed in that proceedings must be treated as a decree against which only an appeal lay to the appellate court. The respondent No.1 did not appeal to the High Court and instead preferred a C.R.No.4897 of 2008 -7- .... revision petition under Section 115, C.P.C. We have no doubt that in view of the provisions of Order XXI, Rule 103, C.P.C. which provide for appeal against the order passed by the executing court in such matters, no revision could be entertained by the High Court against that order in view of the clear prohibition contained in Section 115(2) of the C.P.C. which in clear terms provides that the High Court shall not under Section 115 vary or reverse any decree or order against which an appeal lay either to the High Court or to any other Court subordinate thereto. The High Court appears to have interfered with the order of the executing court because it was under the impression that a long drawn litigation, perhaps engineered by the judgment debtor, would result in great injustice, and, therefore, if some relief could be granted by cutting short the procedure of appeal etc., the power under Section 115 could be exercised to do justice between the parties. In our view, the High Court could not have acted in a manner contrary to the express provision of section 115(2) of the Code of Civil Procedure. Since an appeal was provided under Order XXI, Rule 103 of the Code of Civil Procedure which treated the order passed by the executing Court as a decree subject to the same conditions as to appeal against such decree, a revision petition under Section 115, C.P.C. against such an order is not maintainable. We must, therefore, hold C.R.No.4897 of 2008 -8- .... that the High Court exceeded its jurisdiction in entertaining a revision petition under Section 115,C.P.C. against an order passed in proceeding under Order XXI, Rule 97, C.P.C. even if we treat the application filed under Section 151, C.P.C., to be an application under Order XXI, Rule 97, C.P.C.” The afore-quoted observations of their Lordships are squarely applicable to the facts of the instant case. Accordingly, this revision petition is dismissed on the ground that it is not maintainable and only an appeal was competent against the impugned order. March 23,2010 “SCM” ( Mahesh Grover ) Judge