Amareswar Sahoo& Others vs Rani Bewa & Others .... Opposite
2025 Latest Caselaw 5906 Ori

Orissa High Court

Amareswar Sahoo& Others vs Rani Bewa & Others .... Opposite on 17 June, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

      IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                    CMP No.572 of 2025

         Amareswar Sahoo& others ....         Petitioners
                     Mr. D. Mohapatra, Senior Advocate
                                -Versus-


          Rani Bewa & others               ....        Opposite
                                                      Parties
                             Mr. S.K. Mishra, Senior Advocate
               CORAM:
               JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:17.06.2025


        1.

Instant petition is filed by the petitioners challenging the correctness of the impugned order dated 19th February, 2025 as at Annexure-3 passed in connection with CMA Misc. Case No.141 of 2015 arising out of Execution Case No.12 of 2001 corresponding to T.S. No.3/180 of 2000/1980 by learned Civil Judge (Senior Division), Nimapada, whereby request to adduce evidence in support of the claim upon an application moved under Order 21 Rule 97 CPC by them was declined on the grounds

inter alia that such a decision is erroneous and legally untenable.

2. In fact, the petitioners, who are not parties to the suit instituted by opposite party Nos.1, 2, original defendant Nos.3 and 4, 5 and 6, original defendant Nos.7 and 8 along with defendant Nos.9 to 11, knocked the doors of learned court below with an application under Order 21 Rule 97 CPC claiming right over the suit schedule land while opposing the decree in T.S. No.3/180 of 2000/1980 and execution thereof initiated against opposite party No.11 for ejectment therefrom with a plea that such decree and its execution be declared as void and inoperative pleading on record that one Sankar Sahoo and opposite party No.11 were and have been in possession of 19 links x 40 links of land each with the claim that the predecessors of the opposite parties and proforma opposite parties allowed both of them to run their shops from over Sabik Plot Nos.706 and 778 upon payment of rent for Ac.0.01 decimal each, however, during Consolidation operation, the name of Sankar Sahoo was recorded in the parcha with a remark 'Jabardakhal' and in respect of Brundaban Sahoo as 'be ayin kharid sutre dakhal' against LR Plot Nos.778 and 778/1708 respectively with both the

plots recorded under Land Register Khata No.159 situate in Mouza-Dhumal. The further pleading is that the recorded owners of the land agreed upon the request received from Sankar Sahoo and Brundaban Sahoo to sell away Ac.0.01 decimal each corresponding to Sabik Plot No.706 with the execution of the registered sale deeds on 4th February, 1982. It is claimed that said Sankar Sahoo after having purchased the land constructed an asbestos house and thereafter, a pucca building over the same in the year 1995 and Brundaban Sahoo similarly raised construction over the land acquired by him. It is alleged that on the land of the petitioners and proforma opposite parties in the direction of North- South with a length of 13 links and breadth of 40 links, there exists two hatched rooms being let out to different tenants, hence, therefore, the length of the plot in question is 51 links with 35 links in breath on the Southern side running from East-West with a total area of Ac.0.02 decimals which corresponds to Consolidation Khata No.322 Plot No.819 measuring an Ac.0.01 decimal and Consolidation Khata No.260, Plot No.818 with an area of Ac.0.01 decimal but in view of the Consolidation parcha, the opposite parties' predecessor, namely, Sankar Sahoo filed

Objection Case No.4287 of 1981 under Section 9(3) of the OCH & PFL Act to record their names in respect of Ac.0.01 decimal vis-à-vis LR Plot No.778 under Khata No.159 and also for increase of land from Ac.0.01 decimal to Ac.0.02 decimal and according to the petitioners, even though, the purchase was in respect of Ac.0.01 decimal, whereafter, the Consolidation Authority recorded Ac.0.01 decimal only and then the Provisional Consolidation Scheme was confirmed on 1st April, 1986 and even though such request was rejected, a review was filed in Misc. Case No.1 of 1986 under Section 48 of the OCH & PFL Act and therein, the learned Consolidation Officer, Gop-Kakatpur by order dated 25th June, 1986 increased the area to Ac.0.02 decimal though the purchase was for Ac.0.01 decimal acquired through void registered sale deed in 1982. The petitioners contend that such an order is grossly erroneous and without jurisdiction, as against which, opposite party No.11, namely, Brundaban Sahoo filed Consolidation Revision No.2853 of 1989 before the learned Commissioner, Consolidation but it was dismissed by order dated 20th June, 1995. The contention is that the purchase of Ac.0.01 decimal by Sankar Sahoo under the sale deed dated 4th February,

1982 having been admitted by him, the learned authorities below grossly erred in directing Ac.0.02 decimal to be recorded and any such decision challenged by opposite party No.11 is illegal and without jurisdiction and though OJC No.5489 of 1983 was filed against it, the same was not entertained due to absence of any error apparent on the face of the order in question. The further claim is that notwithstanding the above, both Sankar Sahoo and opposite party No.11 were in possession of 19 links x 40 links of land each and as far as the decision of the consolidation authorities are concerned, it has been on account of fraud and misrepresentation and hence, to direct Ac.0.02 decimal to be recorded in favour of opposite party Nos.1 to 10 or for that matter, with Sankar Sahoo being their predecessor-in-interest becomes void ab initio.

2.1. According to the petitioners, late Sankar Sahoo instituted the suit against opposite party No.11 only and after it was decreed, the latter preferred Title Appeal No.32/21 of 2002-2001 against the decree dated 27th January, 2001 but learned lower appellate court affirmed the decision by a judgment dated 27th July, 2006. It was further challenged in Second Appeal No.405 of 2006 and the same was also

dismissed. As a result and in view of the dismissal of the second appeal, opposite party No.11 was directed to surrender the possession. In the suit and appeal neither petitioners nor proforma opposite parties were made parties and all along the possession of Sankar Sahoo with respect of Ac.0.02 decimal was erroneously confirmed notwithstanding him having purchased Ac.0.01 decimal only. It is alleged that fraud was practiced by opposite party Nos.1 to 10 and their predecessor and ultimately, an area of Ac.0.02 decimal was recorded and with such a decision, no land is left to be occupied by opposite party No.11, hence, the petitioners have been compelled to file the application under Order 21 Rule 97 CPC for adjudication by learned court below in CMA Misc. Case No.141 of 2000 but unfortunately, evidence was not allowed to be adduced leading to the passing of the impugned order i.e. Annexure-3. It is pleaded that the decree is void and inexecutable and in the facts and circumstances of the case, the decision under challenge dated 19th February, 2025 in Execution Case No.12 of 2001 arising out of the suit is liable to be interfered with in the interest of justice. Such is the pleading on record while demanding receipt of

evidence from the petitioners opposing the execution of the decree.

3. Heard Mr. Mohapatra, learned Senior Advocate for the petitioners and Mr. Mishra, learned Senior Advocate for the opposite parties.

4. Mr. Mohapatra, learned Senior Advocate for the petitioners would submit that the petitioners are the successors of the original recorded owner and are in possession of a portion of Plot No.818, which stood recorded in the name of opposite party No.11 and since in view of the decree sought to be executed in respect of Ac.0.02 decimal of land, it is apprehended that they might lose the part of the property in their possession and therefore, such an application under Order 21 Rule 97 CPC was moved. It is contended that the decree holders filed CMP No.303 of 2016 challenging the impletion of the petitioners in the execution proceeding and it was disposed of by order dated 24th June, 2016 with a direction to treat the application so moved as one under Order 21 Rule 97 CPC and to dispose it of after providing an opportunity of hearing to the respective parties. It is also contended that the petitioners approached this Court in CMP No.138 of 2017 when stay of

execution proceeding was refused and therein, execution of the decree was directed to be kept in abeyance till disposal of the application under Order 21 Rule 97 CPC. Mr. Mohapatra, learned Senior Advocate submits that the petitioners besides the above application have instituted the suit in CS No.238/96 of 2016/2013 against the LRs of the decree holder, namely, Sankar Sahoo and also opposite party No.11, who is the judgment debtor seeking a declaration that the sale deeds executed in their favour in 1982 as void with such other reliefs. The contention of Mr. Mohapatra, learned Senior Advocate is that in course of hearing, the petitioners requested the learned court below to permit them to adduce oral and documentary evidence but with the conclusion that consolidation record stands in the name of the decree holder declined to entertain the same. Being aggrieved by the decision, the petitioners, as according to Mr. Mohapatra, learned Senior Advocate, have now challenged the same for the reason that the decree holder was and is in possession of 19 links x 40 links of land instead of Ac.0.02 decimal and similarly, opposite party No.11 to an extent of 760 square links and behind Plot No.818, they are in possession of 520 square links

(13 links x 40 links) and in total, 2040 square links of land is available and in case, Ac.0.02 decimal is allowed in favour of opposite party Nos.1 to 10, it would cover 2002 square links leaving no land to be possessed by them and opposite party No.11 and therefore, having regard to the fact that the decree is under execution, learned court below was required to examine it with evidence received but the application under Order 21 Rule 97 CPC was followed by the impugned order i.e. Annexure-3 ignoring the settled position of law that such determination of the issues involved shall have to be in terms of Order 21 Rule 101 CPC and not by a separate suit. While advancing such an argument, Mr. Mohapatra, learned Senior Advocate refers to the following decisions, such as, Sameer Singh and another Vrs. Abdul Rab and others (2015) 1 SCC 379 and Jini Dhanrajgir and another Vrs. Shibu Mathew and another AIR 2023 SC 2567. The contention is that the learned court below is required to adjudicate upon all such questions pertaining to the suit plot arising between the parties, since the petitioners genuinely apprehend their dispossession from the part of the plot to the South in case the execution of the decree is allowed to be accomplished.

5. Mr. Mishra, learned Senior Advocate for the opposite parties, on the other hand, submits that the learned court below did not seriously err or commit any wrong in denying further evidence to be led by the petitioners for the fact that the decree is to be executed in respect of the land measuring Ac.0.02 decimal recorded in the name of the predecessor-in- interest of opposite party Nos.1 to 10 confirmed by this Court in Second Appeal No.405 of 2006. It is contended that the petitioners do not have rights to challenge the decree and resist its execution since the same is against opposite party No.11. It is further submitted that the consolidation record stands in favour of opposite party Nos.1 to 10 being the successors of late Sankar Sahoo and the suit was decreed against opposite party No.11 was upheld in Title Appeal No.32/21 of 2002-2001 by learned District Judge, Puri and finally in Second Appeal No.405 of 2006 and hence, at this distant point of time, the petitioners claim with a demand to adduce evidence on any such ground as has been advanced could not have been entertained by learned court below and rightly, therefore, the application under Order 21 Rule 97 CPC was followed by the impugned order at Annexure-3.

6. Admittedly, the petitioners instituted a separate suit in CS No.238/96 of 2016/2013 against opposite party Nos.1 to 10 and opposite party No.11 challenging the execution of the sale deeds dated 4th February, 1982 and simultaneously to declare the judgment and decree in TS No.3/180 of 2000/1980 and the appellate decree to be not binding to them and proforma defendants therein and further to direct handing over of schedule 'B' property by opposite party Nos.1 to 10 with such other consequential reliefs besides costs. Since the execution is levied by opposite party Nos.1 to 10 arising out of the suit in TS No.3/180 of 2000/1980 confirmed in appeal, the application under Order 21 Rule 97 CPC was moved by the petitioners, who were not made parties in the suit as though they are the successors of the original recorded owner in respect of the plot in question. The contention of the petitioners is that late Sankar Sahoo, namely, predecessor-in-interest of opposite party Nos.1 to 10 since purchased Ac.0.01 decimal situate over Plot No.819 and to its north, there is a Govt. land, any such execution in respect of Ac.0.02 decimal is likely to include Plot No.818 which is partly in possession of opposite party No.11 to the extent of Ac.0.01 decimal (19 links x 40 links) and

the remainder with the petitioners and opposite party Nos.12 to 16 measuring 13 links x 35 links with no separate plot being recorded. The apprehension of the petitioners is that in view of the decree in the suit although confirmed in appeal and thereafter in Second Appeal No.405 of 2006, for the fact that late Sankar Sahoo acquired interest over Ac.0.01 decimal, any such execution is to diminish the area of Plot No.818 which is to cover a portion thereof in their possession, the fact which has been lost sight of by learned court below as according to Mr. Mohapatra, learned Senior Advocate appearing for them. In reply and response to the above, Mr. Mishra, learned Senior Advocate for the opposite parties would submit that a separate suit has been instituted and the dispute raised by the petitioners is beyond the scope and ambit of Order 21 Rule 97 CPC and it cannot be adjudicated upon by learned court below by receiving evidence in that regard.

7. In fact, Order 21 Rule 97 CPC stipulates that any such resistance to delivery of possession in favour of the decree holder or purchaser, as the case may be, shall be made by an application in terms of sub-rule (1) thereof and the same to be adjudicated upon in accordance with the subsequent provisions specified.

Rule 101 of order 21 CPC further stipulates that all questions including such questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rules 97 or 99 or their representatives and relevant to the adjudication of the applications shall be determined by the court dealing with it and not by a separate suit and for the said purpose, notwithstanding, anything to the contrary contained in any other law, such court shall be deemed to have jurisdiction to decide the questions involved. Such a provision has been made by way of an amendment in 1976. A separate suit is statutorily barred. But, in case of a decree holder seeking recovery by dispossessing a non-judgment debtor, such an application opposing the action shall have to be made in accordance with Order 21 Rule 99 of CPC. Upon determination of the questions referred to in Rule 101 CPC, the court shall, in accordance with such determination, proceed to pass orders on the application according to Order 21 Rule 98 subject to sub-rule(2) thereof. Order 21 Rule 103 CPC specifies that where any such application has been adjudicated upon under Rules 98 or 100, the order made thereon shall have the same force and be subject to the same as if it were a decree. On a

reading of the above provisions, it is understood that resistance to delivery of possession may be objected not only by the judgment debtor but also, a stranger, who may register an independent claim vis-à-vis right, title and interest in the decreetal property before he is actually dispossessed. In other words, even a non-judgment debtor can equally agitate a claim for adjudication in terms of Order 21 Rule 99 CPC. In the instant case, the petitioners are non-judgment debtors, who are apprehensive of dispossession in case the decree in favour of opposite party Nos. 1 to 10 is allowed to be enforced and executed.

8. An objection is raised to the maintainability of the application under Order 21 Rule 97 CPC at the instance of the petitioners on the ground that a suit is instituted by them is pending adjudication and disposal. As earlier stated, the petitioners have already approached the court of learned Civil Judge (Junior Division), Nimapara in C.S. No. 238/96 of 2016/2013 challenging the validity of the sale deeds executed in the year 1982 in favour of the predecessors-in-interest of opposite party Nos. 1 to 10 and opposite party No.11 and to deliver possession of schedule 'B' property morefully described therein to them and pro-forma defendants. Notwithstanding the

suit being filed, the petitioners moved the application under Order 21 Rule 97 CPC which is in fact after the order of this Court in CMP No. 303 of 2016. The petitioners claim that in view of the decree in favour of opposite party Nos. 1 to 10 and as dispossession is contemplated vide Execution Case No. 12 of 2001, the application opposing it in terms of Order 21 Rule 97 CPC was filed. The record reveals that the decree holders filed CMP No. 303 of 2016, however, the same was withdrawn in order to allow them to contest the application of the petitioners including questioning maintainability of the proceeding under Order 21 Rule 97 CPC and since there was no adjudication on such application, direction was issued by order dated 24th June, 2016 for the learned court below to consider all such contentions of the respective parties, while disposing it of in accordance with law.

9. As stated earlier, the application under Order 21 Rule 97 CPC was dismissed by the learned court

of 2015. In view of 1976 amendment to the CPC, a separate suit is barred and any such dispute over right, title and interest including possession shall have to be duly examined by the court as per Rule 97 of

Order 21 CPC. As already discussed before, a third- party intervention and obstruction to the execution of decree is maintainable. Earlier to the amendment of 1976, an inquiry was required to be made by the Executing court on an application in terms of Order 21 Rule 97 CPC and it was concerned only with the question of possession of the obstructor and likewise, upon an application by a person other than the judgment debtor as per Rule 99 thereof but after the Amendment Act, Rules 98 to 106 have been introduced which are in conformity with the legislative policy of entrusting the determination of all questions including questions as to the title of the party concerned by the Executing court. The principal feature of the amendments by 1976 Act is that all questions including the question on title in the property arising between the parties to the proceeding under Rules 97 or 99 must be determined by the Executing court and not left to be decided by way of a separate suit. The scope of the proceeding has hence been widened so as to include all questions relevant to the adjudication of the application including the title vis-à-vis the property which could have properly been raised in a suit under the erstwhile Rule 103.

10. Even though, in the case at hand, the petitioners instituted a separate suit, it could well be opposed on the ground that the questions to right, title and interest over the suit schedule property is needed to be examined and adjudicated upon in terms of Order 21 Rule 97 or Rule 99 CPC. Law is well settled that the claim of a stranger, who apprehends dispossession or has already been dispossessed from the immovable property in execution of a decree being an objector may make an application, under Order 21 Rules 97 to 103 CPC to be entertained by the Executing court, who shall have the authority to adjudicate all the questions related to right, title or interest arising between the parties. So, therefore, irrespective of any such suit to have been filed by the petitioners since dispossession is anticipated, in the considered view of the Court, they do have the rights to object to it with an application moved in terms of Order 21 Rule 99 CPC and hence, the objection of Mr. Mishra, learned Senior Advocate for the opposite parties in that behalf cannot be sustained. In Sameer Singh (supra), the Apex Court while considering similar questions dealing with applications moved under Order 21 Rules 97, 99 & 101 CPC held and observed that the Executing court has the authority to adjudicate all

such questions in controversy in respect of the property arising between the parties pertaining to right, title or interest in respect thereof and it also includes a claim of a stranger. On a reading of the aforesaid decision in which a reference has been made to an earlier case law in Brahmdeo Chaudhary Vrs. Rishikesh Prasad Jaiswal & another AIR 1997 SC 856, it has been further held that the self-contained Code enjoins the Executing court to adjudicate the lis including the dispute over right, title or interest vis-à-vis the immovable property and the intent and purpose is primarily to avoid multiplicity of proceedings.

11. In Jini Dhanrajgir (supra), It has been held and concluded that the claim regarding right, title and interest in respect of the decreetal property cannot be thrown out at the threshold since it is well within one's right to contest the application under Order 21 Rule 97 CPC and since evidence is required to be led before it, the Executing court is required to consider the objections not in the sense that the decree cannot be executed but on the premise that a prima facie case to have been set up for an enquiry to be conducted. It is further held therein that upon determination of the questions referred to in Rule 101 of Order 21 CPC, the

Executing court is to proceed in the manner mandated by Rule 98 thereof. In other words, in view of the above decisions, any such application under Order 21 Rule 97 or Rule 99 CPC being received, the Executing Court is to proceed to deal with the contentious issues involved between the parties even at the behest of a stranger in accordance with law upon receiving evidence to be led by the respective parties.

12. Mr. Mishra, learned Senior Advocate for the opposite parties would submit that the decree has been upheld all along and finally confirmed with the disposal of Second Appeal No. 405 of 2006 and hence, it is required to be executed against the judgment debtor but the petitioners have been set up to frustrate the same. As earlier stated, the petitioners have not been made parties in the suit instituted by and against the judgment debtor only. Irrespective of any such challenge to the sale deeds executed in 1982 by way of a suit, the petitioners as apprehend dispossession for the reason that the decree sought to be executed is in respect of an area beyond the land purchased by late Sankar Sahoo and it is likely to include the southernmost part of the plot No. 818 which has not been disposed of by their predecessor being the original recorded owner, it is needed to be examined

by the learned court below. In the peculiar facts and circumstances of the case, even though there is a decree in favour of opposite party Nos. 1 to 10 and it has reached finality, the same does not debar the petitioners to resist delivery of possession of the decreetal property in view of the claim that any such execution is likely to dispossess them from over 13 links x 35 links of land forming a part of plot No. 818. Since title is claimed over the suit schedule property by the petitioners and the same is likely to be included as a part of the decreetal property, if the decree is sought to be executed at the instance of opposite party Nos. 1 to 10, such grievance of the petitioners is necessarily to be examined by the learned court below while dealing with an application in terms of Order 21 Rules 97 to 103 CPC. Such an indefeasible right of the petitioners which is statutorily not allowed by way of a separate suit with resistance to the delivery of possession of the suit property in favour of opposite party Nos.1 to 10 is not infringed upon or extinguished and therefore, the application in terms of Order 21 Rule 97 to 103 CPC shall have to be examined and disposed of as per law by receiving evidence in that regard before considering disposal of Execution Case No. 12 of 2001. Such is the settled legal position

reiterated by the Apex Court in Gini Dhanrajgir (supra) and hence, for the learned court below to hold that the application is not to be entertained considering the fact that the statement of petitioner No.1 confirms the possession of the plot by the decree holders and that the record of right stands with them thereby disallowing the petitioners to lead evidence opposing likely dispossession is not sustainable in law.

13. Hence, it is ordered.

14. In the result, the petition stands allowed. As a necessary corollary, the impugned order dated 19th February, 2025 as at Annexure-3 passed in connection with CMA Misc. Case No.141 of 2015 arising out of Execution Case No.12 of 2001 corresponding to T.S. No.3/180 of 2000/1980 is hereby set aside with the direction for learned Civil Judge (Senior Division), Nimapada to freshly consider early disposal of the CMA on merit and in accordance with law upon receiving evidence from the respective parties. In the circumstances, however, there is no order as to costs.

Designation: Sr. Steno                                                 Judge
Reason: Authentication       Kabita/ Tudu
Location: OHC,CTC
Date: 18-Jun-2025 14:36:03