Bijju vs Rajkumar

Sanjay Yadav, J.—Heard on admission.

Order dated 3.9.2014 passed in Civil Suit No.11 A/2014 by the Additional Civil Judge, Class-II to the First Civil Judge, Class-II, Katni, is being assailed vide this Revision, whereby, an objection raised by the petitioner defendant in a suit for declaration of ownership over the land admeasuring 1.700 Hectare Khasra No.9/2 PH No.40 NB 16 RC Murwara Tehsil and District Katni and that the decree in Civil Suit No.33A/1992 is a nullity vide application under Order 7 Rule 11 Code of Civil Procedure, 1908 that the suit is not maintainable as the plaintiff ought to have taken recourse to the proceedings under Order 21 Rule 99 read with Section 101 CPC.

The trial Court taking note of the fact that the plaintiff''s objection over the execution of the Judgment and Decree in Civil Suit No.33A/1992 was dropped being infructuous as the Decree Holder, (presently defendants No.1, 2 and 3) had not pressed the execution proceeding on the ground that the decree is satisfied, rejected the application holding that since the plaintiff was not made party in the execution proceedings, which is not pending, there is no bar in filing the suit for declaration of Judgment and Decree as nullity.

Rule 101 of Order 21 CPC envisages that "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." Thus filing of an application under Rule 99 of Order 21 is the precondition which ignites the provisions contain under Order 21 Rule 101. If the application under Order 21 Rule 99 is not filed, the provision under Order 21 Rule 101 CPC does not get attracted nor will it preclude the holder of a property from filing a suit for declaration and for nullity of Judgment and Decree.

In the context reference can be had of the decision by Full Bench of Karnataka High Court in V.K. Rama Setty Vs. A. Gopinath, ; wherein it is held:

"10. We are of the view that keeping in view the language employed in Order XXI, Rule 99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under Rule 99 the use of word "may" gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. This explains the observation of the Division Bench. The Division Bench had not pronounced that even if an aggrieved person prefers an application under Rule 99, then still he will have a right to file a separate suit as well. We are clearly of the opinion that drawing of any such inference is a misreading of the judgment of the Division Bench since such an inference will be in the death of Rule 101 of Order 21, C.P .C. and therefore the same cannot be held to be a good law, if at all it was intended to be so laid down. We do not find it necessary to record any detailed reasoning of our own on the said aspect since in our opinion, the issue is now finally concluded by the judgment of the Supreme Court in the case of Noorduddin Vs. Dr K.L. Anand, ."

In view whereof, the reliance placed by learned counsel the application under the decision in Umesh Kumar Verma Vs. Madhya Pradesh Road Transport Corporation and Another, is of no assistance as the case therein turn on its own facts.

Consequently, Revision fails and is dismissed. No costs.