Dinesh Kumar Kesari v. Bechan Prasad Kesari and others) was decreed by judgment and decree dated

1. Heard learned counsel for the parties and perused the record.

2. This petition has been filed challenging the order dated 4.4.2022 passed by the Civil Judge (J.D.), Hawali, Varanasi in Misc. Case No.117 of 2022 as well as revisional order passed by the District Judge, Varanasi dated 25.4.2022 dismissing the revision filed by the petitioner.

3. Brief facts of the case are that Original Suit No.1368 of 2017 (Dinesh Kumar Kesari Vs. Bechan Prasad Kesari and others) was decreed by judgment and decree dated 10.2.2018. The said decree was passed on the basis of a compromise between the parties. The decree was put to execution and in a execution proceedings, the petitioner was dispossessed from the property in dispute. Thereafter, the petitioner filed an application under Order 21 Rule 99 claiming independent title and rights over the property in dispute and prayed for restoration of his possession. The said application filed by the petitioner was dismissed by the order dated 4.4.2022. Against the order dated 4.4.2022, the petitioner filed a revision, which was dismissed by the order dated 25.4.2022. Both these orders are challenged in the present writ petition and at the time of admission following order has been passed by this Court on 26.5.2022, which is quoted as under : "This matter was mentioned yesterday on account of urgency shown that the respondents were attempting to raise constructions after dispossessing the petitioner from the suit property. This mention was accepted and the case has been included in the list of fresh causes of the day. The petitioner is a third party objector and submits that he has been dispossessed from the property bearing Plot No.48 in execution of a compromise decree passed in Original Suit No.1368 of 2017, between Dinesh Kumar Kesari and Bechan Prasad Kesari and others. The decree is said to be collusive. It is submitted that the subject matter of the suit aforesaid is plot No.46 and 47 situate at Abadi Khasra No. 580, Mohalla Village Rupapur, Pargana Kaswar Raja, Tehsil Raja Talab, Varanasi. The petitioner has moved objections under Order XXI Rule 99 CPC seeking to recover possession of Plot No.48 wherefrom he claims to have been wrongfully dispossessed in execution of the decree passed between respondent Nos. 1 and 2 to this petition. Objection under Order XXI Rule 99 CPC have been summarily rejected by the learned Civil Judge (Junior Division), Hawali, Varanasi vide order dated 04.04.2022, passed in Miscellaneous Case No.117 of 2022, arising out of Execution Case No.7 of 2018. This order was challenged vide a Civil Revision that has been summarily rejected by the learned District Judge, vide order dated 25.04.2022. The petitioner claims possessory title to Plot No.48 because he says that the entire area was a part of Raja Kesarwani Mahal, where there are no separate record of rights. The respondent's name is entered over 4 Dhur of Plot No.86 and 18 Dhur of Plot No. 87 because he claims through Raja Kesarwani, but the petitioner claims exclusive possession of Plot No.48 since the time of his ancestors. It is submitted that this is the objection which was required to be tried after framing of issues with opportunity to the parties to lead evidence. It was not an objection which would have been summarily thrown out, as done by the two Courts below. Ms. Shabeena Begum appearing on behalf of respondent No.1 on caveat accepts notice. She is granted four weeks time to file a counter affidavit. Issue notice to respondent No.2 returnable on 25.07.2022. List for admission on 25.07.2022 along with a report regarding status of pleadings and service together with the postal track attached. Order on Application Interim Relief No.1 of 2022 It is argued by the learned Counsel for the petitioner Mr. Chetan Chatterjee that after dispossessing the petitioner from Plot No.48, the respondents in collusion are determined to raise constructions of a permanent character and alter the nature and character of the property in dispute. It is well settled that pending suit the nature and character of the suit property should not be permitted to be altered. There is a prima facie case. Until further orders, no construction shall be raised on plot No.48 situate at Abadi Khasra No. 580, Mohalla Village Rupapur, Pargana Kaswar Raja, Tehsil Raja Talab, Varanasi and the nature and character of the said land shall not be altered."

4. Sri K.K. Mani, learned counsel appearing for the plaintiff-respondent has raised objection that against an order passed in proceedings under Order 21 Rule 99, first appeal lies as order passed under Order 21 Rule 98 or Order 21 Rule 100 is a decree under Order 21 Rule 103. As such, the revision against the order rejecting an application under Order 21 Rule 99 was not maintainable and consequently, the writ petition is also not maintainable.

5. Learned counsel appearing on behalf of the petitioner could not deny this fact that under Order 21 Rule 103, any order passed under Order 21 Rule 98 or Order 21 Rule 100 is a decree and therefore is appealable. It has been submitted by learned counsel for the petitioner that it appears that the revision was filed erroneously. Learned counsel for the petitioner however submitted that this petition has been entertained by this Court and an interim protection has also been granted.

6. Be that as it may, since the revision was not maintainable against the Order 21 Rule 99 and the proper course open for the petitioner to file an appeal as the orders are treated to be decree under Order 21 Rule 103, I am of the opinion that this petition cannot be entertained. However, since this writ petition is entertained and an interim protection has been passed, it would be appropriate that the petitioner may be permitted to file an appeal against the order dated 4.4.2022 passed by the executing court rejecting his application under Order 21 Rule 99.

7. In case, any such appeal is filed along with the stay application within two weeks, the same shall be considered and decided by the appellate court in accordance with law.

8. Till disposal of the stay application in appeal, both the parties are directed to maintain status quo.

9. With these observations, the writ petition stands disposed of. Order Date :- 31.7.2025 S. Singh (Manish Kumar Nigam,J.) SAVITA SINGH High Court of Judicature at Allahabad

1. Heard learned counsel for the parties and perused the record.

2. This petition has been filed challenging the order dated 4.4.2022 passed by the Civil Judge (J.D.), Hawali, Varanasi in Misc. Case No.117 of 2022 as well as revisional order passed by the District Judge, Varanasi dated 25.4.2022 dismissing the revision filed by the petitioner.

3. Brief facts of the case are that Original Suit No.1368 of 2017 (Dinesh Kumar Kesari Vs. Bechan Prasad Kesari and others) was decreed by judgment and decree dated 10.2.2018. The said decree was passed on the basis of a compromise between the parties. The decree was put to execution and in a execution proceedings, the petitioner was dispossessed from the property in dispute. Thereafter, the petitioner filed an application under Order 21 Rule 99 claiming independent title and rights over the property in dispute and prayed for restoration of his possession. The said application filed by the petitioner was dismissed by the order dated 4.4.2022. Against the order dated 4.4.2022, the petitioner filed a revision, which was dismissed by the order dated 25.4.2022. Both these orders are challenged in the present writ petition and at the time of admission following order has been passed by this Court on 26.5.2022, which is quoted as under : "This matter was mentioned yesterday on account of urgency shown that the respondents were attempting to raise constructions after dispossessing the petitioner from the suit property. This mention was accepted and the case has been included in the list of fresh causes of the day. The petitioner is a third party objector and submits that he has been dispossessed from the property bearing Plot No.48 in execution of a compromise decree passed in Original Suit No.1368 of 2017, between Dinesh Kumar Kesari and Bechan Prasad Kesari and others. The decree is said to be collusive. It is submitted that the subject matter of the suit aforesaid is plot No.46 and 47 situate at Abadi Khasra No. 580, Mohalla Village Rupapur, Pargana Kaswar Raja, Tehsil Raja Talab, Varanasi. The petitioner has moved objections under Order XXI Rule 99 CPC seeking to recover possession of Plot No.48 wherefrom he claims to have been wrongfully dispossessed in execution of the decree passed between respondent Nos. 1 and 2 to this petition. Objection under Order XXI Rule 99 CPC have been summarily rejected by the learned Civil Judge (Junior Division), Hawali, Varanasi vide order dated 04.04.2022, passed in Miscellaneous Case No.117 of 2022, arising out of Execution Case No.7 of 2018. This order was challenged vide a Civil Revision that has been summarily rejected by the learned District Judge, vide order dated 25.04.2022. The petitioner claims possessory title to Plot No.48 because he says that the entire area was a part of Raja Kesarwani Mahal, where there are no separate record of rights. The respondent's name is entered over 4 Dhur of Plot No.86 and 18 Dhur of Plot No. 87 because he claims through Raja Kesarwani, but the petitioner claims exclusive possession of Plot No.48 since the time of his ancestors. It is submitted that this is the objection which was required to be tried after framing of issues with opportunity to the parties to lead evidence. It was not an objection which would have been summarily thrown out, as done by the two Courts below. Ms. Shabeena Begum appearing on behalf of respondent No.1 on caveat accepts notice. She is granted four weeks time to file a counter affidavit. Issue notice to respondent No.2 returnable on 25.07.2022. List for admission on 25.07.2022 along with a report regarding status of pleadings and service together with the postal track attached. Order on Application Interim Relief No.1 of 2022 It is argued by the learned Counsel for the petitioner Mr. Chetan Chatterjee that after dispossessing the petitioner from Plot No.48, the respondents in collusion are determined to raise constructions of a permanent character and alter the nature and character of the property in dispute. It is well settled that pending suit the nature and character of the suit property should not be permitted to be altered. There is a prima facie case. Until further orders, no construction shall be raised on plot No.48 situate at Abadi Khasra No. 580, Mohalla Village Rupapur, Pargana Kaswar Raja, Tehsil Raja Talab, Varanasi and the nature and character of the said land shall not be altered."

4. Sri K.K. Mani, learned counsel appearing for the plaintiff-respondent has raised objection that against an order passed in proceedings under Order 21 Rule 99, first appeal lies as order passed under Order 21 Rule 98 or Order 21 Rule 100 is a decree under Order 21 Rule 103. As such, the revision against the order rejecting an application under Order 21 Rule 99 was not maintainable and consequently, the writ petition is also not maintainable.

5. Learned counsel appearing on behalf of the petitioner could not deny this fact that under Order 21 Rule 103, any order passed under Order 21 Rule 98 or Order 21 Rule 100 is a decree and therefore is appealable. It has been submitted by learned counsel for the petitioner that it appears that the revision was filed erroneously. Learned counsel for the petitioner however submitted that this petition has been entertained by this Court and an interim protection has also been granted.

6. Be that as it may, since the revision was not maintainable against the Order 21 Rule 99 and the proper course open for the petitioner to file an appeal as the orders are treated to be decree under Order 21 Rule 103, I am of the opinion that this petition cannot be entertained. However, since this writ petition is entertained and an interim protection has been passed, it would be appropriate that the petitioner may be permitted to file an appeal against the order dated 4.4.2022 passed by the executing court rejecting his application under Order 21 Rule 99.

7. In case, any such appeal is filed along with the stay application within two weeks, the same shall be considered and decided by the appellate court in accordance with law.

8. Till disposal of the stay application in appeal, both the parties are directed to maintain status quo.

9. With these observations, the writ petition stands disposed of. Order Date :- 31.7.2025 S. Singh (Manish Kumar Nigam,J.) SAVITA SINGH High Court of Judicature at Allahabad