Chattisgarh High Court

Bedram @ Pretram Sahu vs Urmila Bai Sahu on 13 October, 2022

                                          1
                                                            W.P.(227) No. 257 of 2022


                                                                             NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                        Writ Petition (227) No. 257 of 2022

                           Order reserved on : 28/09/2022
                          Order delivered on : 13/10/2022

   Bedram @ Pretram Sahu, aged about 68 years, S/o Late Chintaram Sahu,
    Profession- Farmer, R/o. Village Teka P.H.N. 36, Tahsil - Rajim, District
    Gariaband (C.G.)

    (Objector in Execution Case No. 02/21 & Plaintiff in Civil Suit No. 10A/2021)
                                                                     ---- Petitioner

                                     Versus

1. Urmila Bai Sahu, aged 52 years, D/o Late Chintaram Sahu, W/o Salikram
   Sahu, Profession Farmer, R/o Village Bamhani, Tehsil Chura, District
   Gariaband (C.G.)
    (Decree holder in Civil Suit No. 32A/2003)
2. Janki Bai Sahu, Aged 45 years, W/o Lochan @ Bharat Sahu, Profession
   Anganbadi Assistant, Village Navagaon (Khisora), Tehsil Magarload, District
   Dhamtari (C.G.)
    Permanent Address- Village Tarri, Tehsil Navagaon, District Raipur (C.G.)
    (Judgment Debtor in Civil Suit No. 32A/2003)
3. State of Chhattisgarh Through District Collector, Gariyaband (C.G.)
                                                               ---- Respondents

For Petitioner                        :       Mr. Akash Kundu, Advocate
For Respondents 1 & 2                 :       Mr. Awadh Tripathi, Advocate
For State/Respondent No.3             :       Mr. Shakti Singh, Panel Lawyer

                 Hon'ble Shri Justice Rakesh Mohan Pandey
                                C.A.V. Order

1. The petitioner has challenged the order dated 28.02.2022 passed by the

learned Additional District Judge, Gariaband (C.G.), whereby the first appeal

preferred by the petitioner under Order 21 Rule 103 of C.P.C. has been

dismissed as not maintainable.

2. The petitioner had moved an application under Order 21 Rule 97, 99 & 101

of C.P.C. before the learned Executing Court on the ground that he is in

possession of some part of the suit property and a Civil Suit for declaration

W.P.(227) No. 257 of 2022

of title is pending before the competent Civil Court, therefore, the execution

of decree may be stayed till conclusion of the Civil Suit. The application

moved by the petitioner was rejected by the learned trial Court after

adjudicating the issues raised by the petitioner, holding that the petitioner

has not been dispossessed from the property.

3. The brief facts of this case are that respondent No.1 Urmila Bai Sahu

alongwith her mother Phoolkunwar filed a Civil Suit for declaration of title

and permanent injunction with respect to agricultural land bearing Survey

Nos. 175, 176, 447 & 458, admeasuring 1.39 hectares situated at Tehsil

Rajim, District Raipur. The case was registered as Civil Suit No. 32A/2003

and vide judgment dated 27.11.2006 it was decreed in favour of respondent

No.1 and Janki Bai who were held to be owner of half of the suit property.

The judgment passed by the learned trial Court was upheld by this High

Court in Second Appeal No. 383/2007 vide judgment dated 10.12.2019.

4. During pendency of Second Appeal, a family settlement was entered into

between the parties on 29.06.2014 and Survey Nos. 175, 176, 447 & 458

were divided among the family members. The petitioner got possession of

Survey No. 447 & 458 by virtue of family settlement deed, but when a

dispute arose between the family members, he filed a Civil Suit No.

10A/2021. In Civil Suit No. 10A/2021 filed on 11.02.2021, Urmila Bail

Sahu/respondent No.1 and Janki Bai Sahu/respondent no.2 have been

arrayed as defendant No. 4 & 5 and they have marked their appearance.

5. Respondent No.1 Urmila Bai Sahu filed Execution Case No. 2/2021 in

pursuance of decree passed in Civil Suit No. 32A/2003 before the Civil

Judge, Class-II, Rajim, District Gariaband.

6. The petitioner being in possession of some part of the suit land filed an

objection on 13.01.2022 under Order 21 Rules 97, 99 & 101 read with

Section 151 of C.P.C. on the ground that the suit property is in possession of

the petitioner as well as his brother since more than a decade and Civil Suit

W.P.(227) No. 257 of 2022

is pending with respect to same property, whereas vide order dated

08.10.2021, the Executing Court has directed the concerned Collector to

pass order relating to partition and hand over the possession to the decree

holder. The petitioner further pleaded that if the suit land is partitioned and

possession is handed over to the decree holder, the petitioner would be left

in lurch.

7. Learned Executing Court vide order dated 21.01.2022 held that according to

provisions of Order 21 Rules 99 of C.P.C., if a person other than the

judgment debtor is dispossessed of immovable property by the holder of

decree, he may make an application to the Court complaining such

dispossession. It if further held by the Executing Court that the petitioner has

nowhere pleaded that in pursuance of execution of decree dated 27.11.2006

he has been dispossessed. Though he has pleaded that by virtue of family

settlement deed dated 29.06.2014, he got possession of the suit property,

but no document has been filed by the petitioner to establish the fact of

dispossession and therefore the application was rejected. The petitioner

preferred an appeal before the Additional District Judge, Gariaband against

the order dated 21.01.2022 passed by the learned Executing Court in

accordance with the provisions of Order 21 Rule 103 of C.P.C. The learned

Court below held that according to provisions of Order 21 Rule 103 of

C.P.C., appeal would lie against any order passed under Order 21 Rules 98

or 100 of C.P.C., whereas the petitioner has preferred appeal against the

rejection of application filed under Order 21 Rules 97, 99 & 101 of C.P.C.

which is not applicable in the present case. The learned Court below vide

order dated 28.02.2022 dismissed the appeal as not maintainable against

which the present writ petition has been filed.

8. Learned counsel for the petitioner submits that the learned court below has

committed grave error in dismissing the appeal on the ground of

maintainability as Order 21 Rules 97 to 103 of C.P.C. is a self-contained

W.P.(227) No. 257 of 2022

code. He further submits that the learned Executing Court has adjudicated

his application on merits, therefore, the appeal would lie. He also submits

that by virtue of preliminary decree dated 08.10.2021, the Collector has been

directed to pass order with respect to partition and hand over the possession

to the decree holder which amounts to dispossession of the petitioner from

the suit property, whereas he is in possession of the property by virtue of

family settlement deed executed between the family members in the year

2014.

9. On the other hand, learned counsel for respondents No. 1 & 2 submits that

neither the application moved by the petitioner before the learned Executing

Court, nor appeal preferred by him before the Court below was maintainable.

He further submits that according to Order 21 Rule 97 of C.P.C., only the

decree holder has right to move application. Further, Rule 99 permits any

person other than the judgment debtor to move an application against

dispossession, whereas in the instant case, the petitioner has not been

dispossessed and he is not a decree holder, therefore, both the provisions

would not apply. He lastly submits that the learned Executing Court has not

decided the application moved under Order 21 Rule 98 or 100 of C.P.C.,

therefore, no appeal would lie and thus, court below has not committed any

illegality in holding the appeal preferred by the petitioner as not

maintainable.

10. I have heard the learned counsel for the parties and perused the material

available on record.

11. The short issue involved in this case is that whether the appeal would lie

against rejection of application moved under Order 21 Rules 97, 99 & 101 of

C.P.C. or not?

12. It is not in dispute that Civil Suit No. 32A/2003 was filed by respondent No.1

and same was decreed in her favour in which respondent No.1 Urmila Bai

Sahu and respondent No. 2 Janki Bai Sahu have been held to be owner of

W.P.(227) No. 257 of 2022

half share of the suit property and the judgment and decree has been upheld

by this Court in Second Appeal No. 383/2007. The family settlement was

entered into between the parties by virtue of which the petitioner got

possession of some part of the suit property and this fact is apparent from

the application moved by the petitioner under Order 21 Rule 97, 99 & 101 of

C.P.C. It comes from the pleading of writ petition that Civil Suit No. 10A/2021

has been filed by the petitioner for declaration of title. The learned Executing

Court adjudicated the application moved by the petitioner under Order 21

Rules 97, 99 & 101 of C.P.C. and rejected the same vide order dated

21.01.2022. The petitioner preferred appeal before the learned Additional

District Judge, Gariaband and same has been dismissed on the ground of

being not maintainable as no appeal is provided against the order passed

under the provisions of Order 21 Rules 97, 99 & 101 of C.P.C.

13. In case of Sita Devi Sharma vs. Smt. Mukta Ben, decided by this Court

on 22.03.2018 in W.P.(227) No. 249 of 2018 wherein in para-7 it has been

observed as under:-

7. Therefore, the scheme of the Order and Rule in order to prevent to give birth to a fresh litigation, the provisions have been incorporated for the interest of a person when is raised under Rule 97 CPC, it is to be decided in the same execution and that would be a "decree". The decree having been passed, the first appeal was preferred. When the application of Order 21 Rule 97 CPC is adjudicated, it is enveloped within the definition of decree and first appeal having been preferred, the provisions of CPC will come into play. When the proceeding of this character reach the District Court in a state of appeal, the procedure which is prevailing in ordinary Court of the county with regard to the proceeding, the ordinary Rule of CPC will apply.

14. In case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and

Another, (1997) 3 SCC 694, the Hon'ble Supreme Court has held that if

W.P.(227) No. 257 of 2022

there had been adjudication by the Executing Court, the writ petition could

not have been maintained and that an appeal was the remedy.

15. In case of Sameer Singh and Another vs. Abdul Rab and Others, (2015)

1 SCC 379, the writ petition under Article 227 of the Constitution of India was

filed against the order passed under Order 21 Rule 101 of C.P.C. which was

dismissed by the High Court and same was challenged before the Hon'ble

Supreme Court. The contention of the respondents before the Hon'ble

Supreme Court was that the order passed under Order 21 Rules 98 to 100

of C.P.C. is a decree as per the provisions contained under Order 21 Rule

103 of C.P.C. and, therefore, an appeal would lie and the writ petition was

not maintainable. The Hon'ble Supreme Court in paras - 20, 24, 26 & 27 has

held as under:-

20. The submission of the learned counsel for the appellants is that if the scheme underlying the said Rules is appositely appreciated, it is clear as crystal that the legislature in order to avoid multiplicity of proceedings has empowered the executing court to conduct necessary enquiry and adjudicate by permitting the parties to adduce evidence, both oral and documentary, and to determine the right, title and interest of the parties and, therefore, such an order has been given the status of a decree. As has been put forth by him, a proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the adjudication is similar to that of a suit and when in the case at hand, the court has declined to embark upon any enquiry by calling for reply, recording evidence and appropriately adjudicating the controversy, the order passed cannot be regarded under Order 21 Rule 103 as a decree. In this context, the authorities that have been commended to us need to be carefully noticed.

24. In S. Rajeswari v. S.N. Kulasekaran, (2006) 4 SCC 412, the appellant was one of the persons who had obstructed the execution of a decree obtained by the first respondent therein and had filed an application under

W.P.(227) No. 257 of 2022

Section 151 CPC which was rejected by the executing court on the ground that it was not maintainable. Being grieved by the said order he preferred a revision petition which was allowed by the High Court. The Court treated the application preferred under Section 151 CPC to be one under Order 21 Rule 97 because the executing court proceeded to record evidence and thereupon adjudicated the matter. The evidence of the decree-holder was considered and a conclusion was arrived at that the identity of plot in question had not been established and thereby the plaintiff was disabled from executing the decree for possession of the land. A contention was raised before this Court that the High Court had erred in entertaining a revision petition under Section 115 CPC, for the order was a decree under Order 21 Rule 103 of CPC and hence, an appeal lay. The said contention was accepted by this Court.

26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self- contained code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by executing court. Order 21 Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction,

W.P.(227) No. 257 of 2022

then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675.

27. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v.

Kamalaksha Chaudhury, AIR 1949 PC 239. The same principle has been reiterated in Keshardeo Chamria v. Radha Kissen Chamria, AIR 1953 SC 23 and Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi, AIR 1959 SC 492. Needless to emphasise, the said principle is well settled. After the amendment of Section 115 CPC w.e.f. 1- 7-2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down is Surya Dev Rai. Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.

16. Recently in case of Virudhunagar Hindu Nadargal Dharma Paribalana

Sabai and and Others vs. Tuticorin Educational Society and Others,

(2019) 9 SCC 538, the Hon'ble Supreme has reiterated that where a specific

remedy of appeal is provided under the CPC itself, as a matter of discipline

W.P.(227) No. 257 of 2022

and prudence, the High Court would refrain from exercising superintending

jurisdiction under Article 227 of the Constitution of India. The relevant

paragraph 13 of the said judgment reads as follows:-

13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.

17. From the provisions of Order 21 Rules 97 to 103 of C.P.C. and ratio laid

down by the Hon'ble Supreme Court in the case of Sameer Singh (supra), it

is quite vivid that a claim of a stranger is maintainable who apprehends

dispossession or has already been dispossessed from the immovable

property. The provision of Order 21 Rules 97 to 103 of C.P.C. is a self-

contained code to adjudicate the lis and the purpose is to avoid multiplicity of

proceedings. Order 21 Rule 101 of C.P.C. provides for the determination of

necessary issues. Rule 103 clearly stipulates that when an application is

adjudicated upon under Rule 98 or Rule 100 the said order shall have the

same force as if it were a decree. Thus, it is a deemed decree. But if a court

declines to adjudicate on the ground that it does not have jurisdiction, the

said order cannot earn the status of a decree.