Chandra Prabha vs Kiran Dutta And Another
2025 Latest Caselaw 4521 UK

Uttarakhand High Court

Chandra Prabha vs Kiran Dutta And Another on 22 September, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL
              Civil Revision No. 121 of 2023
Chandra Prabha                     ..................... Petitioner

                                          Versus

Kiran Dutta and Another                                 ...............Respondents
                            With
               Civil Revision No. 122 of 2023
Chandra Prabha                     ..................... Petitioner

                                          Versus

Kiran Dutta and Another                                 ...............Respondents
                            With
               Civil Revision No. 123 of 2023
Chandra Prabha                     ..................... Petitioner

                                          Versus

Kiran Dutta and Another                                 ...............Respondents

Present:
Mr. Piyush Garg, learned counsel for the petitioner.
Mr. Neeraj Garg with Mr. Yashpal Singh, learned counsel for the respondents.



Hon'ble Mr. Justice Rakesh Thapliyal, J.

1. All these three revisions are arising out of execution proceeding initiated by the respondents for execution of the Trial Court judgment dated 28.01.2021 passed in three different SCC suits i.e. SCC Suit No. 11 of 2014, SCC Suit No. 12 of 2014 and SCC Suit No. 11 of 2014. In all these three SCC suits the present revisionist moved an application under Order 1 Rule 10 of CPC, but the same was rejected on 05.02.2016, against which three civil revisions were preferred, which were dismissed on 10.07.2017 by observing that if such an application moved under Order 1 Rule 10 of CPC is allowed in the SCC suit then the whole litigation will be converted into suit of the title between Smt. Kiran Dutta and Smt. Chandra Prabha, which is not permissible and further that

the application has rightly been rejected because there is every probability that such an application has been moved by Smt. Chandra Prabha with the collusion of the tenant.

2. Thereafter, in the execution proceeding the present revisionist moved three separate applications under Order 21 Rule 97 of CPC. In the meantime against the original judgment and decree passed in all the three SCC suits the present revisionist filed three other civil revisions though Order 1 Rule 10 of CPC application was already rejected by the SCC court. All these civil revisions Nos. 19, 20 and 36 of 2021 are also listed before this court, which were dismissed in default. Now, the restoration application has been moved.

3. Thereafter, the execution application was moved for execution of the judgment and decree passed in all the three SCC suits in which the present revisionists whose application under Order 1 Rule 10 CPC was already rejected moved an application under Order 21 Rule 97 of CPC for protecting the possession over the property in question and as well as for determination of the title and interest over the property in question.

4. Subsequently, an another application was moved by the revisionist on 23.05.2023 for framing of issue for deciding application under Order XXI Rule 97 of CPC and also to lead the evidence. All these three applications were rejected by the First Additional District Judge, Dehradun on 09.08.2023 by observing that there is no need to frame the issue to adjudicate the application under Order XXI Rule 97 as one of the basic principle of law is that in such matter the adjudication can be done on the admitted facts or on the averments made in the application under Order 21 Rule 97. The First Additional District Judge further observed in the order impugned that the court can direct "the

parties to adduce evidence for such determination if the court deems it necessary but as far as this case is concerned, this court feels that the present matter can be decided on the averments made by the parties".

5. Being aggrieved with the order passed by the First Additional District Judge dated 09.08.2023 in all the three applications filed in support of application under Order 21 Rule 97 in the three execution proceedings arising out of three SCC suits the instant three civil revisions have been preferred.

6. Mr. Piyush Garg, learned counsel for the revisionist submits that the application under Order 21 Rule 97 cannot be decided without framing the issue and in support of his argument he refers Order 21 Rule 97 r/w Rule 101 and 103, which are being quoted hereinunder:

"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.

101. Question 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, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

103. Orders to be treated as decrees.

Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and

be subject to the same conditions as to an appeal or otherwise as if it were a decree."

7. In support of his argument he placed reliance in one of the judgment of the Allahabad High Court in the case of Wahid vs. Mohd. Anwar 2009 SCC Online 369 and particularly he placed reliance in paragraph 16 and 17, which reads as under:

"16. The appellant had filed his objection under Order XXI, Rule 97. In this objection he claimed himself to be the owner of the property in dispute. The counsel for the appellant submitted that:

(i) All questions arising between the parties are to be decided in this proceedings under Order XXI, Rule 101 and not by a separate suit.

(ii) The question of title cannot be decided by the court of Small Causes,

(iii) The order has to same force and subject to same condition as it were maintainable.

17. Order XXI, Rule 101 clearly states that all questions arising between the parties to a proceeding under Order XXI, Rule 97 or Rule 98 or their representatives shall be determined by the Court dealing with the proceeding and not by a suit. It further declares that the Court shall be deemed to have jurisdiction to decide such question. It cannot be said that the Court of Small Causes can not decide the question of title in case it so arises in these proceedings. The question, even of title, can be gone into in these proceedings."

8. He further placed reliance in one of the judgment of Hon'ble Apex Court in the case of Jini Dhanrajgir and Another vs. Shibu Mathew and Another 2023 SCC Online SC 643, and particularly he placed reliance on paragraph 25, which is being reproduced hereinunder:

"25. The argument, though attractive at first blush, pales into insignificance in view of the peculiar facts obtaining here. From the factual narrative, it appears that the Suit instituted by Mrs. Cherian in 1987 was initially dismissed on 16th November 1989 and upon an appeal being preferred in 1991, the Suit was restored to the file of the trial court by the order of the High Court dated 18th December 1998. If, indeed, there have been transfers post dismissal of the Suit during the time when there

was no pending lis, it would be most appropriate for the Executing Court to determine the question as to whether any of the transfers made by Mr. Mathew to the Respondents would attract Rule 102. This would indeed involve an exercise of leading of evidence by the parties and merely because the Suit was ultimately decreed on 21 st October 2000 and ultimately was upheld by this Court with a minor modification of the amount of compensation, that would not be sufficient justification to throw out the objections raised by the Respondents as being devoid of merit."

9. Finally, he concluded his arugment by submitting that even on plain reading of Order XXI Rule 97 r/w Rule 101 without framing an issue the application under Order XXI Rule 97 cannot be adjudicated.

10. Apart from this, he submits that though the SCC suit was decreed but infact the revisionists are still in possession over the property in question and if the decree is executed then the result would be that the revisionist would be dispossessed from the property in question.

11. In response to the argument advanced by Mr. Piyush Garg, Mr. Neeraj Garg, learned counsel for the respondents, argued that merely by filing an application under Order XXI Rule 97 that too in execution proceeding the nature of the decree arising out of the SCC suit cannot be changed. The fate of application under Order XXI Rule 97 of CPC depends on the nature of SCC suit. He further submits that the intention of the legislature for inacting Order XXVII Rule 97 is to expedite the execution proceeding that is the reason that Rule 3-A under Order XXIII was also inserted w.e.f. 01.02.1977 by virtue of an Act No. 104 of 1976.

12. Apart from this, he submits that as per Order 50 Rule 1(a)(iii) the settlement of issue is excluded from the provisional Small Causes Courts, therefore, while deciding the application under Order XXI Rule 27 in terms of Order 50 Rule 1(a)(iii) there is no any question of framing of the issue. He further submits that

as per Order XXII Rule 4 the judgment of a court of Small Causes need not contain more than the points for determination and the decision thereon and the judgments of other courts should contain concise statement of the case, the point of determination, the decision thereon and the reasons for such decision. He submits that undisputedly the application under Order XXI Rule 97 was moved by the revisionist in an execution proceeding arising out of the proceeding of SCC suit, therefore, even in terms of Rule 4 under Order XXII of CPC there is no question for settlement of issues.

13. Learned counsel for both the parties after concluding their arguments submits that both the revisionist and the respondents are infact the real sisters, therefore, for the purposes of their amicable settlement both of them are ready to appear before this court.

14. Be that as it may, the issue as raised in the instant revision in the opinion of the court has to be decided particularly the issue "whether in an execution proceeding arising out of SCC suit while deciding the application under Order XXI Rule 97 of CPC the issue has to be framed or not".

15. Put up this matter on 09.10.2025.

16. On that day both the parties may appear.

17. Interim order shall continue till the next date of listing.

(Rakesh Thapliyal, J.)

22.09.2025 PR