Case Note & Summary
The case involves a civil revision application filed by Indubai D. Kothawale and others (the applicants) challenging an order dated 16 October 2023 passed by the Civil Judge Junior Division, Panhala, rejecting their application under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (CPC). The applicants claimed to be in possession of a residential house and open premises originally owned by Ganpati Kothavale. The property was sold by Dhondiram (son of Ganpati) and his sons to Laxman Balwant Chougule (Respondent No.1) via a sale deed dated 29 April 1985. The applicants, being Indubai (the second wife of Dhondiram) and her daughters, contended that the sale was without their consent and that they had a share in the property. Respondent No.1 later filed Regular Civil Suit No. 90 of 1998 for possession against Respondent No.2 (Maruti Shankar Yadav), who was occupying the property as a gratuitous licensee. The suit was decreed on 21 January 2006, and the decree was upheld in appeal and second appeal, with the Supreme Court rejecting the special leave petition. During execution proceedings (Regular Darkhast No. 19 of 2020), the applicants filed an obstruction application at Exhibit-39, claiming joint ownership and possession and arguing that the decree was not binding on them as they were not parties to the suit. The executing court rejected this application without conducting a proper inquiry. The High Court held that under Order 21 Rule 97 CPC, when a third party obstructs execution claiming possession or interest, the executing court must conduct a full-fledged inquiry, including recording evidence, and cannot summarily reject the application. The court set aside the impugned order and remanded the matter back to the executing court for a proper inquiry, directing that the applicants be given an opportunity to lead evidence and that the court adjudicate the obstruction application on merits.
Headnote
A) Civil Procedure - Execution of Decree - Obstruction by Third Party - Order 21 Rule 97 CPC - Inquiry - The executing court must conduct a proper inquiry under Order 21 Rule 97 CPC when a third party files an obstruction application claiming possession and interest in the suit property, and cannot reject it summarily without giving the objector an opportunity to lead evidence. (Paras 1-13) B) Civil Procedure - Execution of Decree - Right of Third Party - Order 21 Rule 97 CPC - The provisions of Order 21 Rule 97 CPC are designed to protect the rights of persons who are not parties to the decree but claim possession or interest in the property, and the executing court is duty-bound to adjudicate such claims. (Paras 4-13)
Issue of Consideration
Whether the executing court was required to conduct a full-fledged inquiry under Order 21 Rule 97 of the Code of Civil Procedure, 1908 upon the filing of an obstruction application by third parties claiming possession and interest in the suit property.
Final Decision
The High Court allowed the revision application, set aside the order dated 16 October 2023, and remanded the matter back to the executing court for a proper inquiry under Order 21 Rule 97 CPC, directing that the applicants be given an opportunity to lead evidence and that the court adjudicate the obstruction application on merits.
Law Points
- Order 21 Rule 97 CPC
- Execution of decree
- Obstruction by third party
- Inquiry mandatory
- Right to be heard
