Bombay High Court

Shantabai Marotrao Ingale ... vs Muktiram Manikrao Rasal And Anr on 24 August, 2021

Bench: V. V. Kankanwadi

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      SECOND APPEAL NO.550 OF 2016
                                  WITH
                   CIVIL APPLICATION NO.11328 OF 2016
                             IN SA/550/2016

                    SHANTABAI W/O MAROTRAO INGALE
                                   VERSUS
              MUKTIRAM S/O MANIKRAO RASAL AND ANOTHER
                                      .....
              Advocate for Appellate : Mr. M. M. Patil (Beedkar)
               Advocate for Respondent No.1 : Mr. V. P. Kadam
                                      ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.

                                    Date of Reserving The Order                 :
                                    03-08-2021

                                    Date of Pronouncing The Order               :
                                    24-08-2021

ORDER :

1) Present appeal has been filed by the original objection petitioner

challenging the Judgment and order passed by learned Ad-hoc District

Judge-1, Parbhani on 03-05-2016 in Regular Civil Appeal No.126 of

2015 arising out of Judgment and order dated 09-09-2015 below

Exhibit 12 in Regular Darkhast No.209 of 2012 by 6 th Joint Civil Judge

Junior Division, Parbhani whereby the application filed by the present

appellant under Order XXI Rule 97 of the Civil Procedure Code came to

be rejected.

                                             2                                SA 550-2016




2)       Heard learned Advocate Mr. M. M. Patil for appellant and

learned Advocate Mr. V. P. Kadam for respondent No.1.

3) The facts giving rise to the second appeal are that the

appellant is the third party who had objected to the execution of the

decree. The original decree-holder who is respondent No.1 herein

the second appeal filed execution petition for a decree in respect of

recovery of possession of the suit land Survey No.26 i.e. present Gut

No.87 admeasuring 3 H 92 R which was passed in Regular Civil Suit

No.61 of 1985. That suit was decreed and the defendants therein

(judgment debtor in Regular Darkhast) preferred first appeal bearing

Regular Civil Appeal No.123 of 1997 which came to be dismissed on

21-08-2001. Thereafter, the Judgment Debtor had filed a second

appeal bearing Stamp No.24700 of 2001, it dismissed-in-default on

26-11-2001. Thereafter, the execution petition was filed on 16-10-

2012, a warrant for handing over the possession was issued on 25-

04-2013 and then the objection petitioner i.e. present appellant

appeared and filed an application under Order XXI Rule 97 of the

Code of Civil Procedure. She prayed for stay to the execution of the

petition and then contended that she had filed Regular Civil Suit

No.65 of 2003, it was dismissed, however, she has challenged the

3 SA 550-2016

said dismissal in appeal bearing Regular Civil Appeal No.134 of 2013

and till the decision of the said appeal, the execution proceeding

should be stayed.

4) Learned 6th Joint Civil Judge Junior Division, Parbhani had

rejected the application on 09-09-2015. The present appellant then

preferred Regular Civil Appeal No.126 of 2015, it has been decided

by learned Ad-hoc District Judge-1, Parbhani and dismissed on 03-

05-2016.

5) The appellant contends that she was not made a party to the

original suit. In fact, the suit property was purchased by one

Kishanrao Dhage who was the father of the appellant. Kishanrao

had five sons and two daughters. Kishanrao expired on 20-06-2002.

After the death of her father, the appellant claimed that she has a

share in the suit property and thereby she was resisting the

execution of the decree. The original decree-holder objected to the

said application and submitted that he is the purchaser of the

property. One Tukaram s/o Kishanrao who was the original

defendant No.2 was the absolute owner and possessor of 2 Acres of

land from land Survey No.26 who had sold his share to one Syed

Nazir in 1978. Then the decree-holder had purchased the same

4 SA 550-2016

from Syed Nazir in 1982. It was then stated that the original

defendant No.2 had illegally dispossessed him and, therefore, he had

filed the suit for recovery of possession and mesne profits i.e.

Regular Civil Suit No.61 of 1985.

6) At the outset, it is to be noted that both the Courts below are

concurring with the findings that the application under Order XXI

Rule 97 of the Code of Civil Procedure filed by the applicant is not

maintainable.

7) It will not be out of place to mention here that the second

appeal itself with the civil application was placed before the Division

Bench of this Court to answer the following issues : -

"i. Whether a person not a party to 'lis' or not claiming through parties to the 'lis' (third party), not in possession and/or not claiming to be in possession can maintain an action pursuant to Order XXI, Rule 97 of the Civil Procedure Code ?

ii. When there is already a substantive 'lis' initiated by the person as aforesaid (third party) and pending for adjudication of rights in respect of immovable property, whether a purported objection invoking Order XXI, Rule 97 of the Code of Civil Procedure, 1908 in execution of decree by the same

5 SA 550-2016

person can be entertained for vindication of rights to such immovable property giving treatment to it according to Rules 97 to 103 ?"

By order pronounced on 29-03-2019, the Division Bench has held

thus : -

"32. In view of the above it will have to be held that, if a person is in possession of a property, then even if, he has filed a suit and the same is pending for adjudication of the rights still he would be entitled to maintain an application under Order XXI Rule 97 for vindication of rights to such immovable property giving treatment to it according to Rules 97 to 103. However, the person not in possession of the property may not be entitled to maintain an application under Order XXI Rule 97, irrespective of the fact whether he has filed a substantive lis and is pending for adjudication."

This decision by the Division Bench is coming in this appeal itself

and, therefore, it is now required to be seen as to whether the

appellant can take any advantage of the same and whether she

would show that substantial questions of law are arising in this case.

It is to be noted that in her application under Order XXI Rule 97 of

the Code of Civil Procedure she has not stated that she is in

6 SA 550-2016

possession of the property. Further, she had filed Regular Civil Suit

No.65 of 2003 before Civil Judge Junior Division, Parbhani for

partition and separate possession as it appears. Her suit has been

dismissed but she has stated that her appeal is pending before

District Court, Parbhani. The Division Bench has come to the

conclusion (at the cost of repetition) that : -

"However, the person not in possession of the property may not be entitled to maintain an application under Order XXI Rule 97 of the Code of Civil Procedure, irrespective of the fact whether he has filed a substantive lis and is pending for adjudication."

Therefore, when the present appellant is not in possession of the

suit property then her application under Order XXI Rule 97 of the

Code of Civil Procedure is not maintainable. No substantial question

of law is arising in this case requiring admission of the second

appeal.

8) Learned Advocate for respondent No.1 original decree-holder

submits that now the possession has been taken by the

decree-holder through Court. Under such circumstances also, the

objections raised by the appellant cannot be decided as the

7 SA 550-2016

execution petition itself would have been disposed of as the decree

has been complied with. Hence, the second appeal stands dismissed