Prajwal S. Kumar vs Pullandaya Daivasthana Trust

Anand Byrareddy, J.—Heard the learned counsel for the petitioners. The learned counsel for the respondents have consistently remained absent, though the matter has been listed before the Court on several occasions.

In fact, since the learned counsel for the respondents remained absent when the matter could have been disposed of earlier, it was listed for final hearing in the expectation that the counsel would appear. Since the counsel has failed to appear, the matter is addressed on merits after hearing the learned counsel for the petitioners.

The petitioners are said to be in occupation of the suit schedule property, though there is a judgment and decree obtained by the respondents herein against one another, who according to the petitioners had no interest in the property and therefore, it remained ex-parte. The plaintiff which is a Temple was seeking to claim the property on the basis that they are the absolute owners of the property without producing any material in support of that contention. In any event, the suit was decreed in favour of the plaintiff. It is only when execution was sought be taken out, the petitioners had realised the mischief and had filed an application under Order XXI Rules 97 and 101 of the Code of Civil Procedure, 1908, (hereinafter referred to as ''the CPC'', for brevity) seeking to raise objections to the execution. The Court having posted the matter for enquiry, had framed issues to the following effect.

"1. Whether the petitioners prove that they are in possession and enjoyment of the suit schedule property?

Whether the petitioners prove that they are claiming independent right and title over the suit schedule property?"

However, it transpires that the executing Court has changed its view and on 30.7.2012, held thus:

"Perused the issues. Issues framed that the petitioner are in possession and claiming independent right over the suit schedule property. The obstruction petitioner contended in IA-3 as the Court bailiff report if the Court holds that ''A'' schedule property delivered. After enquiry it may be restored to the possession of plaintiff/obstruction petitioner. Hence, framing issues does not arise for consideration. Hence issues framed on 5th April 2010 striked out."

The above reasoning of the executing Court on the footing that the petitioners had sought for an alternative prayer and in respect of which the issues framed did not arise for consideration not in consonance with Order XXII Rule 101 of the CPC which contemplates that all questions including questions relating to right, title or interest over the property arising 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. Therefore, the Court below now restricting its consideration to whether there was delivery of property by the Court bailiff or not is not the only question that arises. The serious contention as to the plaintiff not being in possession of the suit schedule property and that they do not have any right whatsoever over the suit schedule property is required to be considered with reference to the title deeds that the objectors possess, which had prompted the executing Court to frame the issues in the first place. The same could not have been struck off. The enquiry will necessarily have to go into the question of the respective right and title of the parties and hence, the writ petition is allowed. The impugned order is set aside. The issues framed earlier shall be determined in accordance with law by the executing Court.