Sita Devi Bagaria vs Ramawtar Bagaria And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 8th December, 2023 (Annexure-7) passed in Execution Case No.09 of 2002 is under challenge in this CMP, whereby learned Senior Civil Judge, Rourkela entertaining an application filed by the third party intervener-Opposite party No.2 held that the Petition under Order XXI Rules 97 to 103 read with Section 151 CPC and Section 44 of the Indian Evidence Act, 1872 has been registered as CMA No.137 of 2022 and stayed further proceeding of the execution case till disposal of the said application.

Mr. Sharma, learned counsel for the Petitioner submits that the Petitioner is the decree holder in Execution Case No.09 of 2002. At the stage of issuance of warrants for delivery of possession with police help, CMA No.137 of 2022 was filed. Since the Court proceeded with the execution case, an application was filed by the third party intervener-Opposite party No.2 to register the petition filed under Order XXI Rules 97 to 103 read with Section 151 CPC and Section 44 of the Indian Evidence Act, 1872 and to stay further proceeding of the execution case. By that time, the said application was registered as CMA No.137 of 2022. Learned Executing Court, without taking note of the fact that the third party intervener had no semblance of right, title and interest in respect of the suit property and has no claim against the decree holder, proceeded to adjudicate the same. It also stayed further proceeding of the execution case without delivering vacant possession of the suit property to the Petitioner. Hence, the Petitioner, being aggrieved, has filed this CMP.

Learned counsel for the Petitioner also relied upon the observation of this Court in the case of Kuni Mohanty -v-Upendra Barik and others reported in 2016 SCC OnLine Ori 377, which is as under:

“32. However, in that case of Silverline Forum Pvt. Ltd. (supra) at paragraph-12, it has been held that all questions arising between the parties to a proceeding on an application under rule 97 would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which the Executing Court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite, it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. It has also been said that the adjudication mentioned therein need not necessarily be involved a detail inquiry or collection of the evidence, the Court can make an adjudication on admitted facts or even on averments made in the resistor's petition.”

He, therefore, submits that all questions arising between the resistor and decree holder may be adjudicated under Rule 97 which envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. Thus, a Court has to take a prima facie view with regard to the legality of the objection raised after receiving the application under Order XXI Rule 97 CPC. The Court has to examine the prima facie case to entertain such an application. In the instant case, no such endeavour appears to have been made. He, therefore, submits that the impugned order under Annexure-7 is not sustainable and is liable to be set aside. The petitioner under Order XXI Rule 97 CPC being a collusive one with the J.Dr should be dismissed at the threshold.

Taking note of the submission made by learned counsel for the Petitioner and on perusal of the record, this Court finds that the petition filed by the third party intervener-Opposite Party No.2 under Order XXI Rules 97 to 103 CPC has been registered as CMA No.137 of 2022. Learned counsel for the Petitioner on instruction, also submits that the petition is at argument stage. He, however, raised serious objection with regard to the stay of the execution case during pendency of the CMA.

Since the petition filed under Order XXI Rules 97 to 103 CPC is at the stage of argument, no fruitful purpose will be served in examining the submission of learned counsel for the Petitioner on merit. The Petitioner is at liberty to raise the same at the time of argument of the CMA No.137 of 2022. When an application is filed resisting delivery of possession, it is the duty of the executing Court to decide the same before proceeding with the execution case. Thus, learned executing Court has committed no error in staying further proceeding of the execution case till disposal of CMA No.137 of 2022.

It appears that the execution case is of the year 2002 and the decree holder is yet to enjoy the fruit of the decree. Thus, this Court, without expressing any opinion on the merits of the case of the parties, disposes of the CMP with a direction that CMA No.137 of 2022 shall be disposed of as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order.

Learned executing Court should also make an endeavour to dispose of Execution Case No.09 of 2002 at an early date subject to the result of CMA No.137 of 2022.

This CMP is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.

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