Madhya Pradesh High Court
Ritesh Jhawar vs Sampatlal on 31 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
ON THE 31st OF OCTOBER, 2025
MISC. PETITION No. 5768 of 2025
RITESH JHAWAR
Versus
SAMPATLAL AND OTHERS
Appearance:
Shri Chetan Jain - Advocate for the petitioner.
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by the plaintiff/petitioner being aggrieved by the order dated
12.07.2025 passed by the VIII Civil Judge, Senior Division, Indore in Ex.A-
02/2023.
2. Facts in nutshell leading to filing of this petition is that Respondents
1 & 2 filed a civil suit (RCS A 646/2019) on 12.04.2019 before the VIII Civil
Judge, Senior Division, Indore, seeking declaration, cancellation of sale deed,
possession, and mesne profits against Respondent No. 3. The petitioner was
neither impleaded as a party nor was the sale deed in his favor mentioned. The
suit was decreed ex-parte on 31.10.2022. On 04.01.2023, Respondents 1 & 2
filed execution proceedings (Ex.A 2/2023). The Executing Court issued a
possession warrant on 06.10.2023, and panchnama was drawn on 19.12.2023
when the petitioner initially became aware of the decree. Thereafter, the petitioner
filed his objections under Order 21 Rules 98 & 101 CPC and an application under
Section 151 CPC for stay of execution. Respondents 1 & 2 opposed. The Trial
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Court rejected both applications vide impugned order dated 12.07.2025. Being
aggrieved the petitioner has preferred the present petition.
3. Learned counsel for the petitioner submitted that the petitioner has
been in actual possession of the shop and even when possession warrant was
issued the petitioner was found to be in possession of the shop in question. An ex-
parte decree has been obtained by Respondents 1 & 2 without impleading the
petitioner or disclosing the sale deed in his favor . Executing Court wrongly held
petitioner's application under Order 21 Rules 97, 98 & 101 CPC as not
maintainable since the decree has not been challenged under Order 9 Rule 13,
which is inapplicable since petitioner was not a party to the suit . Learned
Executing Court failed to apply provisions under Order 21 Rule 97 correctly and
should have registered a separate Miscellaneous Judicial Case instead of
dismissing the application summarily. The Executing Court has erroneously relied
upon the judgment of Smt. Kailash Bai Patel Vs Vijay Kumar Jaiswal and
Others [2008(3) MPLJ 281] which is not applicable in the present case. Under
these circumstances, counsel prayed that the impugned order be set aside and the
application filed under Order 21 Rule 98 and Section 101 of CPC and the
application for stay under Section151 CPC be allowed.
4. I have considered the submissions of the learned counsel for the
petitioner and perused the record.
5. In the impugned order, the Executing Court rejected the application in
the absence of any evidence or allegation filed along with the petitioner's
application in proof of: (i) filing a suit in a competent court to declare the order
dated 31.10.2022 as void or voidable or to obtain an injunction; or (ii) filing a
separate application for cancellation of the ex-parte decree; nor was any order
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staying the execution proceedings placed on record.
6. On this aspect, it is appropriate to reproduce the provisions of Order
XXI Rule 97 and 98 of CPC here below :-
97. Resistance or obstruction to possession of immovable
property.--
(1) Where the holder of a decree for the possession of immovable
property or the purchaser of any such property sold in execution of a
decree is resisted or obstructed by any person in obtaining possession of
the property, he may make an application to the Court complaining of
such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall
proceed to adjudicate upon the application in accordance with the
provisions herein contained.
98. Orders after adjudication.--
(1) Upon the determination of the questions referred to in rule 101, the
Court shall, in accordance with such determination and subject to the
provisions of sub-rule (2),-- (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) make an order allowing the
objection and directing that the objector be put into possession of the
property or dismissing the objection.
(2) Where, upon such determination, the Court is satisfied that the
resistance or obstruction was occasioned without any just cause by the
judgment-debtor or by some other person at his instigation or on his
behalf, or by any transferee where such transfer was made during the
pendency of the suit or execution proceeding, it shall direct that the
applicant be put into possession of the property, and where the applicant
is still resisted or obstructed in obtaining possession, the Court may also,
at the instance of the applicant, order the judgment-debtor, or any person
acting at his instigation or on his behalf, to be detained in the civil prison
for a term which may extend to thirty days.
............
101 Questions 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, not withstanding anything to the contrary contained in any
other law for the time being in force, be deemed to have jurisdiction to
decide such questions.
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7. From the aforesaid provisions, it is evident that the issues with
regard to right, title, interest, possession, or any other claim that arises when
someone resists delivery of possession must be adjudicated in the same
proceeding and not filing a fresh civil suit to decide the issues. The
petitioner's application has been rejected without considering the aforesaid
provisions which is violation of principles of natural justice.
8. Accordingly, the present petition is allowed and order dated
12.07.2025 is hereby set aside. Petitioner is directed to file a fresh
application under Order 21 Rule 98 of CPC, which shall be reconsider by the
Execution Court by strictly adhering to the provisions of Order 21 Rule 97,
98 and 101 of CPC in accordance with law.
9. With the aforesaid the petition stands allowed and disposed of.
(ALOK AWASTHI)
JUDGE
sumathi
