Chattisgarh High Court
Chandrakala vs Radheshyam on 21 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 10 of 2018
1. Chandrakala W/o Bodhlal Patel Aged About 48 Years Caste - Aghariya,
R/o Village Ramtek, Tah. Sarangarh, Distt. Raigarh (Chhattisgarh),
2. Basant Kumari W/o Hetram Patel, Aged About 40 Years Caste
Aghariya, R/o Village Bhawa, Post Patewa, Tahsil And Distt.
Mahasamund (Chhattisgarh),
3. Madnamati W/o Lalitkumar Aged About 36 Years Caste - Aghariya, R/o
Village And Post Patsendri, Tah. Saraipali, Distt. Mahasamund
(Chhattisgarh)
---- Petitioner
Versus
1. Radheshyam S/o Ishwar Prasad Patel Aged About 74 Years Caste -
Aghariya, R/o Village And Post Farsawani, Tah. Sarangarh, Distt.
Raigarh (Chhattisgarh) (Decree Holder),
2. Purshottam S/o Kurso Patel Aged About 44 Years Caste - Aghariya, R/o
Village And Post Farsawani, Tahsil Sarangarh, district Raigarh
(Chhattisgarh) (Judgment Debtor),
---- Respondent
For Petitioners : Shri Ganesh Barman, Advocate.
For Respondent : None.
Hon'ble Shri Deepak Kumar Tiwari, J
Order On Board
21/10/2021 :
1. Heard on IA No.1/2018, application for condonation of delay in filing
the Revision.
2. For the reasons stated in the application, it is allowed and delay in filing
the Revision is condoned.
3. This Revision Application has been preferred against the order dated
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13.9.2017 passed by the Additional District Judge, Sarangarh, District
Raigarh in Execution Case No.9-A/2008 whereby the application
preferred by the applicants has been rejected.
4. Facts
of the case are that Radheshyam (Plaintiff/decree holder) filed a
civil suit No.9-A/2008 for specific performance of the contract against
Purushottam (defendant/judgment debtor) in the Court of Additional
District Judge, Sarangarh. The defendant/judgment debtor did not
appear before the Court despite service of summons, therefore, he was
proceeded ex-parte. During the course of execution of decree, the
applicants filed an application under Order 21 Rule 97, 98, 101 read
with Section 151 of the CPC on 10.10.2013. In the said application, it
was averred that the suit land belongs to their father Kursho and actual
partition has not been taken place between the sons and daughters of
Kursho Aghariya. It was also pleaded that the plaintiff had obtained an
ex-parte decree fraudulently. The defendant/decree holder filed reply
and resisted the pleadings made by the applicants. The learned Court
below rejected the application preferred by the applicants on the sole
ground that the plaintiff/decree holder had obtained possession of the
suit land on 21.8.2013 i.e. before filing of the objection by the
applicants.
5. Heard learned counsel for the applicants and perused the impugned
order.
6. The question for consideration is whether the learned Executing Court
was justified in dismissing the application filed on 10.10.2013 under
Order 21 Rule 97, 98, 101 read with Section 151 of the CPC by holding
that possession of the suit land was already obtained by the decree
holder on 21.8.2013.
7. It is pertinent to mention that the applicants were not claiming any right,
title or interest through the judgment-debtor. The applicants are sisters
of the judgment debtor. It was alleged that the ancestral property was
sold without any partition in collusive manner and claiming
independent right, title or interest. Whether their claim was right or
wrong on merits is a different matter, but their grievances would go
overboard without being considered on merits.
8. In this regard, Order 21 Rule 99 of the CPC is relevant and the same is
reproduced hereunder:-
"99. Dispossession by decree-holder or
purchaser.- (1) Where any person other than the
judgment-debtor is dispossessed of immovable
property by the holder of a decree for the
possession of such property or, where such
property has been sold in execution of a decree,
by the purchaser thereof, he may make an
application to the Court complaining of such
dispossession. (2) Where any such application is
made, the Court shall proceed to adjudicate upon
the application in accordance with the provisions
herein contained."
9. Order 21 Rule 100 of the CPC is also relevant and the same is
reproduced hereunder:-
"100. Order to be passed upon application
complaining of dispossession.- Upon the
determination of the questions referred to in
Rule 101, the Court shall, in accordance with
such determinations,-
(a) make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
(b) pass such other order as, in the circumstances
of the case, it may deem fit."
10.Order 21 Rule 101 of the CPC reads as under:-
"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."
11.In view of the above legal provisions, the learned Executing Court is
required to passed an order in terms of the Order 21 Rule 99 of the CPC
and it is no ground that the application be dismissed on the sole ground
that the decree holder has already obtained possession. In such cases
also, the law enables that any person other than the judgment debtor is
wrongly dispossessed be put into possession of the property. Such
questions relating to right, title or interest in the property are to be
determined in the execution itself and not by separate suit.
12.Therefore, this Court is of the view that the learned Executing Court
fails to exercise jurisdiction vested in it by law.
13.Accordingly, the Civil Revision deserves to be and is hereby allowed.
The learned Executing Court is directed to decide the applicants'
application on merits in accordance with law.
14.There shall however be no order as to costs.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
