Calcutta High Court (Appellete Side)

Sri Dipak Pandit vs Smt. Sudama Devi & Ors on 23 November, 2022

S/L 9 with 10
23.11.2022

Sourav CO 296 of 2019 With CO 184 of 2019

Sri Dipak Pandit Vs.

Smt. Sudama Devi & Ors.

Mr. Arup Krishna Das Mr. Sanjoy Ghosh ...for the petitioner.

Mrs. Shohini Chakraborty Ms. P. Das Mr. Arijit Sarkar ... for the Opposite Party No. 4.

In Re: CO 184 of 2019

Affidavit-of-service as filed in Court today, be kept

with the record.

Mr. Arup Krishna Das, learned advocate for the

petitioner and Mr. Arijit Sarkar, learned advocate for the

opposite party no. 4 are present.

Heard learned advocates for both the parties at

length. The instant case is now taken up for passing

appropriate order.

The instant revisional application under Article 227 of

the Constitution of India arises out of Order No. 191 dated

13.09.2017 as passed by learned Civil Judge (Junior

Division), 2nd Court, Asansol in Misc. Case No. 1 of 2016

whereby and whereunder the said Court by the impugned

order was pleased to hold that the said Misc. Case No. 1 of

2016 as filed under Order 21 Rules 97 and Rule 101 of the

Code of Civil Procedure is not maintainable and, thus,

dismissed the said Misc. case on contest.

The petitioner of the said Misc. Case No. 1 of 2016 felt

aggrieved and thus, preferred the instant revisional

application.

In support of the instant revisional application, Mr.

Arup Krishna Das, learned advocate for the petitioner at the

very outset draws attention of this Court to the photocopy of

the petition under Order 21 Rules 97 and 101 of the Code of

Civil Procedure (hereinafter referred to as the said petition)

as filed before the learned trial Court which was registered as

Misc. Case No. 1 of 2016. Attention of this Court is also

drawn to the certified copy of the impugned order. It is

argued on behalf of the petitioner that in the said petition as

filed before the learned trial Court, the petitioner before this

Court as well as before the learned trial Court has averred his

independent right, title and interest over the decreetal

property and, thus, approached the learned trial Court to

decide such right, title and interest of the petitioner in

accordance with law more specifically under the provisions

of the Order 21 Rule 101 of the Code of Civil Procedure.

It is contended that the learned trial Court while

passing the impugned order failed to realize the true

implication of the provisions of the Order 21 Rule 101 CPC

and thus, misdirected himself in passing the impugned

order. It is, thus, submitted that the impugned order as

passed by the learned trial Court is not sustainable in law

and the same may be set aside by allowing the instant

revisional application. In support of his contention, learned

advocate for the petitioner places his reliance upon a

reported decision in Shreenath and Another Vs. Rajesh and

Others. reported in AIR 1998 Supreme Court 1827.

While opposing the instant revisional application, the

learned advocate for the opposite party no. 4 also draws

attention of this Court to the certified copy of the impugned

order. It is contended that learned trial Court has rightly

passed the impugned order and thus, there is no necessity to

interfere with the impugned order.

This Court has meticulously gone through the entire

materials as placed before this Court. This Court has also

given its anxious consideration over the submissions of the

learned advocates of both sides. This Court has also perused

the reported decision of Sreenath and Another (Supra) as

cited from the side of the petitioner.

In considered view of this Court for effective disposal

of the instant revisional application, the provision of Order

21 Rule 101 CPC may be looked into and the same is

reproduced hereunder in verbally:

"101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

Keeping in mind the aforesaid provisions of law, this

Court proposes to look into the facts as involved in the

instant revisional application. Admittedly, the predecessor of

the opposite parties of the instant revisional application

obtained a decree for recovery of possession against the

proforma opposite parties of the instant revisional

application in Title Suit No. 64 of 1989 from the Court of

learned Civil Judge (Junior Division), 2nd Court, Asansol. By

filing Misc. Case No. 1 of 2016 under Order 21 Rule 97 and

101 of the Code of Civil Procedure, the petitioner of the

instant revisional application has sought to establish his own

independent right, title and interest over the decreetal

property.

In view of such, the right, title and interest of the

present petitioner, if there be any, has got to be adjudicated

under the provisions of Order 21 Rule 101 of the Code of Civil

Procedure and not by a separate suit and, therefore, this

Court considers that the learned trial Court was not at all

right in holding that Misc. Case No. 1 of 2016 is not

maintainable.

At this juncture, this Court also proposes to look to

the relevant paragraphs of the reported decision of Sreenath

and Another (Supra) wherein the Hon'ble Apex Court has

expressed the following:

"14. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97 has to be decided by the Executing Court itself.

15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99 (Rule) the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder, or course, such cases are also covered to be decided by the Executing Court. But this will not defeat the right of such person to get his objection decided under Rule 97 which is a state prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding right can object in the execution proceeding under Order 21, Rule

97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt. Usha Jain (Supra) correctly decided the law."

In view of the discussion above, this Court finds

sufficient merit in the instant revisional application and the

same deserves to be allowed.

It is thus ordered that the instant revisional

application is allowed on contest. As a result, the impugned

order No. 191 dated 13.09.2017 as passed by the learned Civil

Judge (Junior Division), 2nd Court, Asansol in Misc. Case No.

1 of 2016 arising out of Title Execution Case No. 1 of 2001 is

hereby set aside.

Learned Civil Judge (Junior Division), 2nd Court,

Asansol is hereby directed to dispose of the Misc. Case No. 1

of 2016 in accordance with law after giving opportunities to