Kalla vs Radhakrishan
2021 Latest Caselaw 1316 MP

                          1
              HIGH COURT OF MADHYA PRADESH
                               CR-118-2021
                    (KALLA Vs RADHAKRISHAN AND OTHERS)


Gwalior, Dated : 06.04.2021

      Heard through video conferencing.

      Shri N.K. Gupta, learned senior counsel with Shri Ravi Gupta,

Advocate for the petitioner.

      Issue notice to the respondents on payment of process fee

through Registered A.D. as well as Ordinary modes within seven

working days, failing which the revision petition shall stand dismissed

without further reference to the Court.

Heard on the question of interim relief.

It is pointed out by petitioner that with respect to property in

question earlier a civil suit was preferred, which was registered as Civil

Suit No.113-A/1974 which was decided vide judgment and decree

dated 01.12.1980, wherein the present petitioner was impleaded as co-

owner of the property in question as one of the proforma party and no

relief was claimed against him. The relief is only claimed against the

respondent No. 1 to 4, therefore, the decree cannot be executed against

the co-owner of the property against whom no relief was claimed. It is

pointed out that an application under Order 21 Rule 97 r/w rule 99 of

CPC was filed before the learned trial Court for determination of points

after conducting enquiry into the matter as it was pointed out that there

is nothing on record to show that how defendant No.14 Mangi S/o

Bhagwant was impleaded as a party showing him to be a legal

representative despite of the fact that Mangi was not even neither the

HIGH COURT OF MADHYA PRADESH CR-118-2021 (KALLA Vs RADHAKRISHAN AND OTHERS)

family member nor any legal representative of Harheth and how he is

near relative there was no pleadings and evidence on record to the

aforesaid effect, then how the Executing Court has arrived at a

conclusion that Mangi was a near relative. The aforesaid findings

given by the Executing Court is perverse and contrary to law.

He has drawn attention of this Court to application under Order

21 Rule 101 of CPC and has argued that enquiry was required to be

conducted by the learned trial Court on the legal issue and without

conducting into the matter and without framing any issues for

determination, the application should have not been rejected out rightly

merely on the objections raised by the respondents.

He has relied upon the judgment passed in the case of

Ramkumar & Anr v. Pankaj & Ors. reported in 2010 (2) MPJR 186,

wherein, the Court has held in para 12 as under:-

"12. Regarding substantial questions of law no.1 and 2.

On going through the objections filed under Order XXI Rule 97 read with Rule 101 Code of Civil Procedure by the objectors/appellants, it is gathered that they have specifically pleaded how they are the owners of the suit property and are affected parties. The reply has also been filed by decree holders. According to learned Sr. Counsel possession of objectors on the suit property is through their tenant Purushottam Sharma against whom, eviction decree has been passed, in which objectors were admittedly not arrayed as parties. Therefore, on going through the objections filed under Order XXI Rule 97 Code of Civil Procedure and the reply filed by decree holders as well as

HIGH COURT OF MADHYA PRADESH CR-118-2021 (KALLA Vs RADHAKRISHAN AND OTHERS)

several documents on record including above said two decisions of the Additional District Judge, this court finds that prima facie, objections which are raised by the appellants/objectors are not frivolous or vexatious and it requires adjudication as contemplated under Rule 101 of Order XXI CPC. On going through the provisions of Order XXI Rule 97 Code of Civil Procedure, this Court finds that in Sub Rule (2) the term 'adjudicate' has been used by the legislature. The word 'adjudicate' has not been defined in CPC but on going through the Corpus Juris Secundum Volume 2 Page 49, the term 'adjudicate' has been explained which reads thus:"

"to adjudge in its strictest sense; to determine finally; to settle in the exercise of judicial authority; to determine in the exercise of judicial power; to solemnly or deliberately determine by judicial power upon a hearing of the rights and interests of the parties involved on the issues and the evidence to be taken and submitted according to some prescribed method, or in the absence thereof, the usual method of procedure known to the statutes or the common law, after a hearing in respect of matters in issue to decide and decree what are the respective rights of the parties as they may appear from the law and evidence adduced."

It is further pointed out that the next date of hearing is

16.04.2021 for handing over the possession and warrants for

possession has already been issued. In such circumstances, he has

prayed for staying the further proceedings of Executing Court in Case

No. 113/1987.

Considering overall facts and circumstances of the case, further

proceedings of Execution Case No. 113/1987 shall remain stayed till

HIGH COURT OF MADHYA PRADESH CR-118-2021 (KALLA Vs RADHAKRISHAN AND OTHERS)

the next date of hearing.

List the case in the week commencing 03th May, 2021.

C.C. as per rules.

                                                              (Vishal Mishra)
LJ*/-                                                             Judge
        LOKENDRA
        JAIN
        2021.04.06
        16:21:53 -07'00'