Page No.# 1/8 vs Bhagawan Deka And 6 Ors
2025 Latest Caselaw 5824 Gua

Gauhati High Court

Page No.# 1/8 vs Bhagawan Deka And 6 Ors on 27 June, 2025

                                                                   Page No.# 1/8

GAHC010132162025




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                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : CRP/91/2025

         BABUL CHANDRA DEKA AND 4 ORS.
         S/O LT. RAMESWAR DEKA, R/O VILL- BORGAON, P.O.- DORAKOHORA, P.S.-
         KAMALPUR, DIST- KAMRUP, ASSAM, PIN-781101

         2: BINARAM DEKA
          S/O LT. RAMESWAR DEKA
          R/O VILL- BORGAON
          P.O.- DORAKOHORA
          P.S.- KAMALPUR
          DIST- KAMRUP
         ASSAM
          PIN-781101

         3: LAKHYADHAR DEKA
          S/O LT. RAMESWAR DEKA
          R/O VILL- BORGAON
          P.O.- DORAKOHORA
          P.S.- KAMALPUR
          DIST- KAMRUP
         ASSAM
          PIN-781101

         4: KAMALAKANTA DEKA
          S/O LT. RAMESWAR DEKA
          R/O VILL- BORGAON
          P.O.- DORAKOHORA
          P.S.- KAMALPUR
          DIST- KAMRUP
         ASSAM
          PIN-781101

         5: MUKANDA RAM DEKA
          S/O LT. RAMESWAR DEKA
          R/O VILL- BORGAON
                                                        Page No.# 2/8

P.O.- DORAKOHORA
P.S.- KAMALPUR
DIST- KAMRUP
ASSAM
PIN-78110

VERSUS

BHAGAWAN DEKA AND 6 ORS.
S/O LATE KALIRAM DEKA, R/O VILL- BORGAON, P.O.- DORAKOHORA,
P.S.- KAMALPUR, DIST- KAMRUP, ASSAM

2:KRISHNA DEKA
 S/O LATE KALIRAM DEKA
 R/O VILL- BORGAON
 P.O.- DORAKOHORA
 P.S.- KAMALPUR
 DIST- KAMRUP
ASSAM

3:GUNA RAM DEKA
 S/O LATE KALIRAM DEKA
 R/O VILL- BORGAON
 P.O.- DORAKOHORA
 P.S.- KAMALPUR
 DIST- KAMRUP
ASSAM

4:SAMINDRA DEKA
 S/O LATE KALIRAM DEKA
 R/O VILL- BORGAON
 P.O.- DORAKOHORA
 P.S.- KAMALPUR
 DIST- KAMRUP
ASSAM

5:PADMARAM DEKA
 S/O LATE KALIRAM DEKA
 R/O VILL- BORGAON
 P.O.- DORAKOHORA
 P.S.- KAMALPUR
 DIST- KAMRUP
ASSAM

6:AATIRAM DEKA
 S/O LATE KALIRAM DEKA
 R/O VILL- BORGAON
 P.O.- DORAKOHORA
                                                                         Page No.# 3/8

            P.S.- KAMALPUR
            DIST- KAMRUP
            ASSAM

            7:CHAANDRADHAR DEKA
             S/O LATE KALIRAM DEKA
             R/O VILL- BORGAON
             P.O.- DORAKOHORA
             P.S.- KAMALPUR
             DIST- KAMRUP
            ASSA

Advocate for the Petitioner   : MR B KAUSHIK, P LHAMU,K BHARALI,MS. N DAS,MR. S
HAZARIKA,MR. P BORAH

Advocate for the Respondent : ,




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

27.06.2025 Heard Mr. B. Kaushik, learned counsel for the petitioners.

2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the correctness or otherwise of the order dated 01.04.2025, passed by the learned Civil Judge (Junior Division), Kamrup in Misc. Case No. 58/2024.

2.1. It is to be noted here that vide impugned order dated 01.04.2025, the learned Civil Judge (Junior Division), Kamrup (hereinafter 'trial Court') has dismissed the petition filed by the petitioner under order XXI Rule 97 & 99 of the Code of Civil Procedure, filed by petitioner for declaring that the judgment and decree, dated 28.11.2011, passed in Title Suit No.09/2007, is null and void and not binding and also for declaring that the decree holder has no right, title and interest and the Borgaon L. P. School standing jointly upon the land owned Page No.# 4/8

by the petitioner described in the Schedule-Ka.

3. Mr. B. Kaushik, learned counsel for the petitioners submits that the petitioner, being a third party in the Title Execution Case No. 01/2012, had filed an application under Order XXI Rule 97 & 99 of the Code of Civil Procedure, for adjudication of his claim. But the learned Executing Court, on the erroneous assumption of law, has dismissed the same on the ground that a third party even cannot invoke order 21 Rule 97 CPC, in anticipation of being dispossessed and under Rule 99 CPC the applicant must be disposes from his/their land in execution by a holder of a decree. His contention is that even without being dispossessed the third party can maintain a petition under the said provisions of law. In support of his submission Mr. Kaushik has referred to a decision of Hon'ble Supreme Court in the case of Brahmdeo Chaudhary Vs Rishikesh Prasad Jaiswal reported in (1997) 3 SCC 694.

4. Under such circumstances, Mr. Kaushik, submits that impugned order may be set aside and the matter may remanded to the learned trial Court to dispose of the application, filed by the petitioners in the light of the decision of Hon'ble in the case of Brahmdeo Chaudhary(supra).

5. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 01.04.2025, and the relevant provision of law, i.e. Order XXI Rule 97 & 99 and also the decision of Hon'ble Supreme Court in the case of Brahmdeo Chaudhary(supra) and I find substance in the submissions of Mr. Kauhsik, learned counsel for the petitioners.

5.1. In Brahmdeo Chaudhary (supra) Hon'ble Supreme Court has held as follows:-

Page No.# 5/8

6. "It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21 Rule 97 CPC could have been offered by any person. The words 'any person' as contemplated by Order 21 Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. ... Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21 Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order."

5.2 Thereafter in para 11 it has been held that:-

"11. In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that respondent no.1 decree-holder's application dated 6th May 1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order XXI Rule 97, CPC and had to be adjudicated upon as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 101 and Order XXI Rule 98. In this connection the Court had also to follow the procedure laid down by Order XXI Rule 105 which enjoins the Executing Court to which an application is made under any of the foregoing Rules of the Order to fix a date of hearing of the application. As the Executing Court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the Page No.# 6/8

execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High Court in revision also committed the same error by taking the view that such an application was not maintained. It is of course true as submitted by learned counsel for the decree- holder that in paragraph 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the Khasra Number. But these are passing observations. On the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by the objector was not maintainable and his only remedy was to move an application under Order XXI Rule 99 after handing over possession and consideration of objection to delivery of possession by a stranger to the decree at any earlier stage was premature. It must, therefore, be held that neither the Executing Court nor the High Court in revision had considered the objection of the appellant against execution or merits. Consequently the impugned judgment of the High court as well as the order of the Executing Court in Civil Execution Case No. 25 of 1990 dated 15th February 1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Munger to re-decide the application of respondent no.1 decree- holder dated 6th May 1991 by treating it to be one under Order XXI Rule 97 for removal of obstruction of the appellant and after hearing the decree-holder as well as the appellant to adjudicate the claim of the appellant and to pass appropriate orders under Order XXI Rule 97 sub-rule (2), CPC read with Order XXI Rule 98, CPC as indicated in earlier part of this judgment."

5.3. Again a three Judges Bench of the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Another reported in (1998) 3 SCC 723, observed that a third party to the decree including the tranferee pendente lite can offer resistance or obstruction and his right Page No.# 7/8

has to be adjudicated under Order 21 Rule 97 C.P.C. Paragraph 9, 10 and 14 are extracted hereunder:-

"9. At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by- "any person" in obtaining possession of the property such decree- holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.

10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no Page No.# 8/8

right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act."

6. What can be crystallized from the aforesaid discussion is to file an application under Order XXI Rule 97 & 99, a person, which includes judgment- debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree, is not required to be actually disposes and the application under the said provisions can be presented before being actually disposed. Once such an application is being filed, the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. Thereafter, the executing Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order.

7. And in that view of the matter, the impugned order dated 01.04.2025, deserved interference of this Court. And accordingly, same stands set aside and quashed. The matters stands remanded to the learned Executing Court with a direction to afford an opportunity of being heard to the petitioner and the respondent and thereafter, to pass a fresh order on his petition taking note of the law laid down by the Hon'ble Supreme Court in the case of Brahmdeo Chaudhary(supra) and in the case of Silverline Forum Pvt. Ltd.

8. In terms of above, this CRP stands disposed of.

JUDGE

Comparing Assistant