Orissa High Court
Afr vs Unknown on 26 April, 2022
ORISSA HIGH COURT : C U T T A C K
CMP NO.319 OF 2022
In the matter of a Petition under Article 227 of the Constitution of India.
AFR
Zobeda Khatun : Petitioner
-Versus-
Md.Habibullah Khan & ors. : Opp.Parties
For Petitioner : M/s.S.A.Nayeem, M.Abid
& S.S.Akhtar
For Opp.Parties : None
(At the stage of Admission)
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 26.04.2022
1. This C.M.P. involves allowing an Application being moved by a
third party in an Execution Proceeding taking resort to the provision
under Order 21 Rules 97, 99 & 101 of C.P.C.
2. Assailing the impugned order, Mr.Nayeem, learned counsel for the
Petitioner-Plaintiff submits that the third party having already moved an
Application under Order 1 Rule 10 of C.P.C. and being defeated in his
such move on rejection of the Application under Order 1 Rule 10 of
C.P.C. had no scope for moving the Application on the selfsame issue in
the guise of Order 21 Rules 97, 99 & 101 of C.P.C. Learned counsel for
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the Petitioner however has no dispute with regard to the third party
already involving in an independent Suit involving the same property and
the third party having lost in the Suit undertaken an Appeal exercise
where he has got a decree involving the very same property. Learned
counsel for the Petitioner further submits that being aggrieved by the
appellate decree in favour of the third party, the Plaintiff has come in
Second Appeal bearing RSA No.571/2014, which is pending in this
Court. In the background of rejection of an Order 1 Rule 10 of C.P.C.
Application, the impugned order is opposed even involving a challenge to
the entertainability of Application under Order 21 Rules 97, 99 & 101 of
C.P.C.
3. Heard the submissions of the learned counsel for the Petitioner on
admission. Considering the submission of the learned counsel for the
Petitioner, this Court finds, undisputedly the third party moving the
Application under Order 21 Rules 97, 99 & 101 of C.P.C. had undertaken
an exercise of Civil Suit and after the loss in the Civil Suit, such party
even undertaken the Appeal exercise and there is a decree in favour of
such party involving the very same property involved in the Execution
Proceeding at hand. Even though the Second Appeal is filed by the
present Plaintiff, admittedly, the Second Appeal is pending for
consideration of this Court and the appellate decree is not disturbed as of
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now. Admittedly, there exist two decrees passed by two different courts
at the instance of third party and the other at the instance of the Plaintiff-
Petitioner involved here in the Execution Proceeding, i.e., the decree
holder and the third party as Plaintiff in the other. For the opinion of this
Court, the third party has definite stake in the event of execution of the
decree in the earlier Suit is attained and has thus been rightly allowed to
join the Execution Proceeding. So far as the ground assailing the
impugned order that once such Appeal is rejected in exercise of power
under Order 1 Rule 10 of C.P.C., there is no further scope to bring the
Application under Order 21 Rules 97, 99 & 101 of C.PC., this Court
observes, exercise of power involving the Application under Order 1 Rule
10 of C.P.C. and exercise of power under the provision of Order 21 Rules
97, 99 & 101 of C.P.C. are completely different. Further scope under
Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the
circumstance, this Court finds, there is no prohibition in bringing such
Application even after rejection of such endeavor in exercise of power
under Order 1 Rule 10 of C.P.C.
4. In the circumstance and reading through the observations of the
Executing Court, this Court finds, there is right exercise of power and the
observation clearly discloses the findings of this Court even. In the
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circumstance, this Court finds, there is no impropriety or illegality in
allowing such Application requiring to be interfered with.
5. While approving the impugned order, this Court rejects this C.M.P.
for having no merit.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 26th April, 2022/M.K.Rout, A.R.-cum-Sr.Secy.
