Pravin Biruly And Others Vs Sunil David Kacchap And Others

Gautam Kumar Choudhary, J

The instant writ petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 03.06.2022 passed in Civil Misc. Appeal No. 02 of 2022 by the Principal District Judge, East Singhbhum at Jamshedpur by which the said appeal preferred by the petitioners under Order

43 Rule 1 read with Section 104 and 151 of C.P.C. has been dismissed and the by order dated 14.12.2021 passed by the Court of Civil Judge, Sr. Division-I, Jamshedpur in Execution Case No. 75 of 2019 has been upheld.

The fact in brief is that opposite party nos. 1 and 2 namely, Sunil David Kacchap and Sushma Kacchap filed the Eviction Suit No. 24 of 2006 against opposite party no. 3 Jayanti Kalundia and opposite party no. 7 Meshat Kalundia for eviction which was decreed on the ground of default in payment of rent.

During the pendency of the trial, the mother of the appellant intervened with the submission that she was 50% shareholder of the suit premises and House No. 1247A which was allowed and she was impleaded in the suit. This order was impugned before this Court and the order was set aside by holding that she was not necessary party in a suit for eviction which was concerned only the landlord and tenant relationship in W.P. (C) No. 3466 of 2017 and the order impleading Beronica Kalundia was set aside and thereafter the suit proceeded between respondent nos. 1 to 2 and respondent nos. 3 to 7.

After dismissal of the petition of Beronica Kalundia for being impleaded, she filed separate suit being T.S. No. 174 of 2018 which was pending before the competent court.

Decree holder brought the execution case for execution of the decree in Execution Case No. 75 of 2019 wherein the petition was filed under Order XXI Rule 97 to 101 of C.P.C. to admit the said misc. application and determine the objection raised by the appellants regarding their claim of half shares in the suit premises.

The learned Court below rejected the petition since the earlier petition on similar ground was rejected in W.P. (C) No. 3466 of 2017.

It is submitted by learned counsel for the petitioner that the petitioner is the son of the sister of the vendor and the property has been sold without partition of the suit property under Order 21 Rule 97 determination of his right, title and interest in the same executing court.

This Court is of the view that this petition is frivolous and without any legal basis. It is not correct position of law that the judgment debtor or a stranger has a right to get his right and title determined on a petition under Order XXI Rule 97 of C.P.C. Order XXI Rule 97 of C.P.C. which is meant for the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree when it is resisted or obstructed by any person in obtaining possession of the property.

Here, the petitioner is not the decree holder. Therefore, the petition under Order XXI Rule 97 of C.P.C. is not maintainable. This is suit for eviction and the earlier petition by the mother of the petitioner has already been dismissed on similar ground that she was not necessary party in eviction suit. The petition is only to delay the execution case and accordingly, this civil misc. petition is dismissed.

The executing court is directed to conclude the execution proceeding within three months from today. I.A. No. 9244 of 2022 also stands disposed of.