Shankar Lal Gupta vs Rajeshwari Devi

Sanjay Kumar Dwivedi, J

Heard Mr. Pratyush Kumar, learned counsel appearing for the petitioners and Mr. Amar Kumar Sinha, learned counsel appearing for the sole opposite party.

This petition has been filed under Article 227 of the Constitution of India for setting-aside the order dated 24.04.2025 passed by the learned Civil Judge, Senior Division-XIV, Ranchi in Execution Case No.35/2023.

Mr. Pratyush Kumar, learned counsel appearing for the petitioners submits that the plaintiff/opposite party instituted Eviction Title Suit No.16/2007 in the Court of the learned Munsiff, Ranchi for eviction of one Md. Isrile Khan from the suit premises being one shop room with a dimension of 13 feet x 18 feet standing in municipal holding no. 183 within Ward No.4 of Ranchi Municipal Corporation situated at Church Road, Dalpatti Police Station Lower Bazar, District-Ranchi with boundary as mentioned in the schedule to the plaint. He submits that the said suit was decreed in favour of the plaintiff/ opposite party. He submits that thereafter the decree holder filed Execution Case No.37/2018 before the Court of the learned Civil Judge (Junior Division)-I at Ranchi for execution of the decree dated 17.05.2018 passed in the aforesaid eviction title suit. He further submits that in the said execution case, a petition was filed by the petitioners herein on 16.07.2024, which was numbered as MCA Case No.859 of 2024 under the provisions of Order XXI Rule 97. 99, 101 read with Section 151 of the CPC, which was admitted on the same day i.e. on 16.07.2024. He submits that the decree holder appeared and filed her objection. He also submits that vide order dated 11.02.2025, liberty was provided to the petitioners herein to file schedule of the property in MCA No.859 of 2024 and the matter was further adjourned for two dates and on 20.02.2025, MCA No.859 of 2024 was disposed of as rejected with liberty to the petitioners to file afresh if they wish. He submits that however the order dated 11.02.2025 was already complied with by the petitioners herein by way of filing MCA No.129/2025, which was filed on 20.02.2025 itself. He submits that the petitioners were under impression that the matter was adjourned, however, it was disposed of as rejected. He submits that thereafter recall petition has been filed on 25.02.2025 for recalling the order dated 20.02.2025. He submits that vide order dated 03.03.2025, learned Court has been pleased to recall the order dated 20.02.2025 and revived MCA No.859/2024 and MCA No.129/2025. He submits that however vide order dated 21.03.2025, the learned Court has again disposed of MCA No.129/2025 on the pretext that MCA No.859/2024 is already disposed of. He submits that again a petition dated 03.04.2025 was filed before the learned Court and by the impugned order dated 24.04.2025, the learned Court has further rejected the said petition and declined to recall the order dated 21.03.2025. He submits that the said MCAs were already revived in view of the recall order dated 03.03.2025 and in spite of that, the learned Court has further disposed of those petitions. He submits that once a petition is filed under Order XXI Rule 97 of the CPC, the same is required to be decided by the learned Executing Court. To buttress this argument, he relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sameer Singh and another v. Abdul Rab and others, reported in (2015) 1 SCC 379. He refers paragraphs 25 and 26 of the said judgment, which read as under:

“25. At this juncture, we may refer with profit to the pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, wherein a two-Judge Bench scanning the anatomy of the rules came to hold that:-

“... a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types [pic]of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him.”

The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai.”

Relying on the above judgment, learned counsel appearing for the petitioners submits that in that case, the petition was rejected without adjudicating the same and in view of that, a petition under Article 227 of the Constitution of India was preferred, which was rejected by the High Court and pursuant to that the matter travelled upto the Hon’ble Supreme Court and the Hon’ble Supreme Court has been pleased to set-aside the order of the High Court and restore the petition filed under Order XXI Rule 97 of the CPC before the learned Court and directed to decide the same. He submits that identical is the situation in the present case and in view of that, the impugned order may kindly be set-aside and direction may kindly be issued to the learned Court to decide the petition filed under Order XXI Rule 97 of the CPC, in which the objection has already been filed by the decree holder.

On the other hand, Mr. Amar Kumar Sinha, learned counsel appearing for the sole opposite party submits that there is no illegality in the impugned order and the learned Court has rightly passed the order. He submits that frivolous objection filed before the learned Executing Court is required to be rejected by the learned Executing Court.

In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that the petition filed by the petitioners under Order XXI Rule 97 read with other Rules has been admitted by the learned Court on 16.07.2024 i.e. on the even date when such petition was filed. While hearing the said petition, the learned Court has found that the schedule of the properties is not disclosed in that petition and in view of that, direction was issued on 11.02.2025 to clarify the ambiguity and, thereafter, the matter was adjourned for 15.02.2025 and 17.02.2025 and the learned Court vide order dated 20.02.2025 has been pleased to reject the MCA No.859/2024 with liberty to the petitioners to file afresh, if they wish. The petition dated 25.02.2025 filed by the petitioners for recalling the order dated 20.02.2025 is on the record, contained in Annexure-9 to the petition and along with that petition, documents have been annexed which suggest that amendment petition being MCA Case No.129 of 2025 was filed on 20.02.2025 itself, however, it appears that it was not placed before the learned Court and in view of that, the order dated 20.02.2025 was passed. The recall petition dated 25.02.2025 was allowed by the learned Court vide order dated 03.03.2025. Further, vide order dated 21. 03.2025, the learned Court has disposed of MCA No.129/2025 on the premises that MCA No.859/2024 is already disposed of as rejected. Subsequently, further petition was filed on 03.04.2025 and by the impugned order dated 24.04.2025, the learned Court has rejected the said petition and declined to recall the order dated 21.03.2025. In these backgrounds, it appears that the petition filed under Order XXI Rule 97 along with other Rules was not adjudicated by the learned Court on merit, however, objection to that has already been filed by the decree holder. The learned Court has recalled the order dated 20.02.2025 and the said MCA case was already revived and by the subsequent orders, the learned Court simply disposed of both the MCAs, which clearly suggests that the case was not adjudicated on merit.

The CPC must be regarded as it is a procedure something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties and our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation. This aspect of the matter has been considered by the Hon’ble Supreme Court in the case of Siddalingayya v. Gurulingappa, reported in (2017) 9 SCC 447, wherein, it has been held in paragraphs 12 to 17 of the said judgment, which read as under:

“12. This case reminds us of the apt observations of a great Judge of this Court (Vivian Bose, J.). His Lordship, speaking for the Bench, in his inimitable style of writing said in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 as under: (AIR p. 429, paras 16-17)

“16. … a Code of Procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

… our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

Keeping the aforementioned observations in mind and examining the facts of the case at hand, we are of the considered opinion that the High Court made no mistake in allowing the respondents' appeal and remanding the suit to the trial court for fresh trial on merits after affording an opportunity to the respondent-defendants to file their written statement to enable them to contest the suit on merits.

It is true that the time was granted to the defendants to file written statement initially before closing their right to file written statement, yet in our view, the trial court instead of closing their right to file written statement should have granted some time to the defendants subject to payment of reasonable amount of cost to the plaintiff to compensate the inconvenience caused to the plaintiff. The High Court was, therefore, right in imposing a cost of Rs 11,250 on the defendants to be paid to the plaintiff as a precondition to file the written statement within the extended time granted by the High Court.

In our view, here comes the application of observations of Vivian Bose, J. when his Lordship said:

“16. … Too technical a construction of a section that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

… our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”

Having observed this, his Lordship cautioned:

“17. … Of course there must be exceptions too and where they are clearly defined they must be given effect to.”

and finally his Lordship concluded observing: (AIR p. 429, para 17)

“17. … But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

The approach of the High Court, which resulted in remand of the case to the trial court for deciding the suit on merits after affording full opportunity to the defendants to contest the case and, at the same time, making it obligatory to pay cost of Rs 11,250 to the plaintiff was, in our view, in tune with the aforementioned observations and did substantial justice to both the parties.”

In  view  of  the  above  discussions  and  further  considering  two judgments passed by the Hon’ble Supreme Court in the cases of Sameer Singh and another v. Abdul Rab and others and Siddalingayya v. Gurulingappa (supra), this Court comes to a conclusion that the impugned order dated 24.04.2025 passed by the learned Court is not in accordance with law and, as such, the impugned order dated 24.04.2025 passed by the learned Civil Judge, Senior Division-XIV, Ranchi in Execution Case No.35/2023 is, hereby, set-aside.

MCA No.859/2024 and MCA No.129/2025 are already revived in light of the recall order dated 03.03.2025 and in view of that, the learned Court will decide the said MCAs in accordance with law after providing opportunity of hearing to all the sides in view of the fact that it is well-settled that once the petition under Order XXI Rule 97 of the CPC is filed before the Executing Court even by the stranger, that is required to be decided on merit, which has not been done in the case in hand. Since the case is arising out of the execution case, the learned Court will take all endeavours to decide the said MCAs at the earliest. The petitioners herein and the sole opposite party will co-operate before the Executing Court to decide the said MCAs.

Accordingly, this petition is disposed of in above terms.

Pending I.A., if any, is disposed of.