MOSTT. DHANESHWARI DEVI AND OTHER VsDHARAMNATH SHARMA AND OTHER

After this writ petition was admitted for hearing and an order of 'status quo' was passed on 12.11.2008, no step has been taken by the petitioners

for early hearing of the writ petition.

A copy of plaint of Title Suit No. 267 of 2003 is tendered in the Court.

Taken on record.

Petitioners are aggrieved of order dated 12.03.2007 passed in Title Suit No. 267 of 2003, by which the suit has been held not maintainable.

Briefly stated, Title Suit No.181 of 1998 was instituted for specific performance of agreement dated 08.07.1998 executed by Prabhawati Pal in

favour of the plaintiff. Suit was decreed vide judgment dated 19.08.2002 and the decree-holder thereafter initiated Execution Case No.12 of 2002. In

the execution case, the petitioners preferred an application under Order XXI Rule 97 r/w Rule 98 CPC claiming that Title Suit No.162 of 1980 filed

against the plaintiff of Title Suit No.181 of 1988, for a declaration of their right, title and interest in respect of 10 decimals land out of 0.35 acres lands

in R.S. Khata No.70, Plot No.985 in village-Hinoo, Ranchi was decreed in favour of their father/grand-father. They have pleaded that the schedule

property under agreement dated 08.07.1998 includes above-mentioned 10 decimals land. On these grounds the petitioners resisted execution of the

judgment and decree in Title Suit No.181 of 1998 by filing an application under Order XXI Rule 97 r/w Rule 98 CPC. The petitioners have also

pleaded that by that time they had filed Title Suit No.267 of 2003 challenging the judgment and decree in Title Suit No.181 of 1998. This is the suit in

which the impugned order dated 12.03.2007 has been passed.

Title Suit No.267 of 2003 was instituted by Gulab Chand Choudhary and others for a decree of declaration that decree passed in Title Suit No.181

of 1998 is null and void and not binding upon the plaintiffs. In the suit Dharamnath Sharma was made defendant no.1; he has filed his written

statement on 17.07.2004. In this suit plaintiffs have pleaded that 0.35 acres land within R.S. Khata No.70, Plot No.985 situated at village-Hinoo,

district-Ranchi belonged to father of the plaintiff nos. 1 to 3, grand-father of plaintiff nos. 4 and 5 and grand-father of proforma-defendant nos. 2 to 4.

On an allegation that the defendant no.1-Dharamnath Sharma had illegally occupied 10 decimals land in Plot No.985, Ranjit Prasad Choudhary who is

father of plaintiff no.4 in Title Suit No.267 of 2003 and his brothers instituted Title Suit No.162 of 1980 which was decreed in their favour, however,

since the defendant no.1 did not vacate the suit land, Execution Case No.49 of 1989 was filed which is still pending. On execution of agreement dated

08.07.1998 by Prabhawati Pal in favour of defendant no.1-Dharamnath Sharma the plaintiffs have pleaded that the said Prabhawati Pal had no right to

execute the agreement and the said agreement is fabricated and fraudulent document. Proforma-defendant nos. 2 to 4 in Title Suit No.267 of 2003 are

sons and daughter of Prabhawati Pal. The plaint averments in this suit would disclose that decree passed in Title Suit No.181 of 1998 has been

challenged on the ground that the schedule property under the agreement dated 08.07.1998 was joint property.

In an execution proceeding objection to execution can be raised by parties to the suit under section 47 CPC. It provides that all questions arising

between the parties to the suit, in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the

decree, shall be determined by the Court executing the decree and not by a separate suit. When resistance or obstruction to possession of immovable

properties which is the subject matter of a suit is offered by a person not party to the suit, provisions under Order XXI Rule 97 r/w Rule 98 CPC

comes into play. Rule 101 CPC refers to question to be determined in an application under Order XXI Rule 97 or 99 CPC. Rule 101 to Order XXI

CPC provides 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, 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. The phraseology used under Rule 101 to Order XXI CPC is identical to section 47

CPC.

It is a matter of record that in Title Suit No.181 of 1998 an application under Order I Rule 10 CPC was preferred by the petitioners which was

dismissed by an order dated 23.12.1999 and this order has attained finality. It also stands admitted that against judgment and decree in Title Suit

No.181 of 1998 the petitioners did not prefer an appeal. Title Appeal No. 25 of 2002 which was preferred by Prabhawati Pal has been dismissed as

abated by an order dated 22.07.2003. In the above facts, the application under Order XXI Rule 97 r/w Rule 98 CPC which was registered as Misc.

Case No.12 of 2002 was dismissed on 19.03.2004.

Now, once an application was preferred by the petitioners under Order XXI Rule 97 r/w Rule 98 CPC, the executing court is required to adjudicate

all questions relating to right, title or interest in the property which was subject matter of the suit. Whether the court has adjudicated the questions

which are referred to under Rule 101 correctly or not, and whether the court has illegally declined to adjudicate those questions, are the issues which

can be raised in an appeal filed under Order XXI Rule 103 CPC and not by filing a fresh suit.

Contention that on the ground of rejection of Misc. Case No. 12 of 2002, Title Suit No. 267 of 2003 which has been filed for different reliefs

cannot be held not maintainable, is misconceived. May be a formal application under Order VII Rule 11 CPC was not filed by the defendants in Title

Suit No. 267 of 2003, but labelling of the application or wrong mentioning of a provision of law would not render an order unsustainable, if the court

which has passed the order has powers and jurisdiction over the subject matter. In the Misc. Case No. 12 of 2002 the petitioners have resisted the

execution of judgment and decree in Title Suit No. 181 of 1998 claiming right, title and interest over a part of the suit property which was subject

matter under the agreement executed in favour of the decree holder in Title Suit No. 181 of 1998, and in Title Suit No.267 of 2003 the petitioners have

sought a decree of declaration of their right, title and interest over the 10 decimals land out of 0.35 acres lands which is the schedule property under

the agreement dated 08.07.1998. Thus, the petitioners have made identical prayers both in Misc. Case No. 22 of 2002 as well as in Title Suit No. 267

of 2003.

In a suit for specific performance of Agreement to Sale dated 08.07.1998 right of the defendant-Prabhawati Pal to execute the said agreement

cannot be challenged by the petitioners. Equally true is the fact that on the ground that Prabhawati Pal has no right to execute the Agreement to Sale

dated 08.07.1998 in respect of a part of joint property cannot be a ground to seek a declaration that the judgment and decree in Title Suit No.181 of

1998 is null and void and not binding on the petitioners. It is a matter of record that before the impugned order dated 12.03.2007 was passed holding

Title Suit No.267 of 2003 not maintainable, by an order dated 19.03.2004 application under Order XXI Rules 97 and 98 CPC which was registered as

Misc. Case No.12 of 2002 was dismissed. In application dated 12.12.2006 which was filed seeking dismissal of the suit, the defendant no.1 has

pleaded that against order dated 19.03.2002 passed in Misc. Case No.12 of 2002 the petitioners have not preferred an appeal. May be, this application

was not appropriately labelled but the fact remains that on account of order dated 19.03.2004 the suit was liable to be dismissed. Incorrect label of the

application or mentioning a wrong provision of law does not denude the court of its jurisdiction. In “Union of India Vrs. Tulsiram Patel†reported

in (1985) 3 SCC 398, the Supreme Court has held that mention of wrong provision or the omission to mention the provision of law which contains the

source of power will not invalidate an order where the source of such power exists. Under order VII Rule 11 CPC the court has ample power to

reject the plaint. By clever drafting even if an illusory cause of action has been created, still the court may reject the plaint.

In the above facts, the impugned order dated 12.03.2007 does not warrant interference by this Court.

Against order dated 19.03.2004 by which Misc. Case No. 12 of 2002 was dismissed, the petitioners have remedy under Order XXI Rule 103

CPC. Admittedly, the petitioners have not preferred an appeal against order dated 19.03.2004. Accordingly, the writ petition is dismissed, however, the

petitioners, if so advised, may prefer an appeal under Order XXI Rule 103 CPC, which, if filed shall be dealt with in accordance with law subject to

the law of limitation.

However, in view of default on the part of the petitioners in not producing the relevant documents, cost of Rs. 5000/- is imposed upon them which

shall be paid to the Advocates Clerk Association, within four weeks.

The writ petition stands dismissed, with the aforesaid liberty to the petitioners.

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