Case Note & Summary
The petitioner, a third party objecting to the execution of a decree for vacant possession, challenged the order of the Principal Civil Judge and JMFC, Sindhanur, dated 05.11.2022, rejecting his application under Order XXI Rule 97 read with Section 47 of the Code of Civil Procedure, 1908 (CPC). The dispute arose from a suit (O.S.No.89/2002) decreed in favour of the decree-holder, confirmed in appeal (R.A.No.1/2008) and second appeal (RSA No.70/2011), leading to Execution Petition No.32/2022 against respondent No.2. A possession warrant was issued on 21.03.2022, but when the bailiff attempted execution on 14.04.2022, the petitioner resisted, claiming independent possession. He filed a separate suit (O.S.No.9/2022, renumbered as O.S.No.258/2022) for injunction and also moved the obstruction application in the execution proceedings. The execution court dismissed the application without holding any enquiry, prompting the petitioner to approach the High Court under Article 227 of the Constitution of India. The petitioner's counsel argued that under Order XXI Rule 101 CPC, an enquiry was mandatory to determine all questions relating to right, title or interest, relying on Bangalore Development Authority v. N. Nanjappa and Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal. The High Court heard the matter and reserved it for orders on 26.09.2024, pronouncing a CAV order on 13.12.2024. However, the provided judgment excerpt does not contain the court's final decision or reasoning.
Headnote
A) Civil Procedure - Execution Proceedings - Obligation to Hold Enquiry - Order XXI Rules 97, 101, Code of Civil Procedure, 1908 - The execution court rejected the obstruction application under Rule 97 without enquiry - Contention that enquiry under Rule 101 mandatory - Precedents cited require determination of all questions including title - Matter listed for orders - Decision not available in provided text. (Paras 5.1-5.6).
Issue of Consideration
Whether the execution court was required to hold an enquiry under Order XXI Rule 101 of the Code of Civil Procedure, 1908 when an application under Order XXI Rule 97 was filed by a third party obstructionist, and whether summary dismissal of such application without enquiry is sustainable.
Law Points
- Under Order XXI Rule 101 CPC
- all questions including right
- title or interest arising between parties to a proceeding under Rule 97 or 99 must be determined by the execution court and not by a separate suit
- an enquiry under Rule 97 CPC is mandatory and cannot be disposed of summarily without trial.
Case Details
2024 LawText (KAR) (12) 93
Writ Petition No. 200085 of 2023 (GM-CPC)
Mahantesh Patil for petitioner, Shivakumar Kallor for respondent No.1
V. Sambireddy s/o V. Anjireddy, V. Shivashankar Reddy s/o V. Veerareddy
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the order of the Executing Court that summarily rejected an application under Order XXI Rule 97 read with Section 47 of the Code of Civil Procedure, 1908, without holding an enquiry.
Remedy Sought
The petitioner sought to set aside the order dated 05.11.2022 passed by the Principal Civil Judge and JMFC, Sindhanur, in E.P.No.32/2020, and to obtain a direction for an enquiry under Order XXI Rule 101 CPC.
Filing Reason
The execution court rejected the obstruction application without conducting any enquiry, which the petitioner contended was contrary to the mandatory procedure under Order XXI Rule 101 CPC.
Previous Decisions
A suit O.S.No.89/2002 was decreed in favour of the decree-holder/respondent No.3 (as per judgment text), confirmed in R.A.No.1/2008 and RSA No.70/2011. Execution Petition No.32/2022 (or 32/2020) was filed, and a possession warrant was issued on 21.03.2022. The petitioner filed O.S.No.9/2022 (renumbered as O.S.No.258/2022) seeking injunction, and also filed an application under Order XXI Rule 97 in the execution proceedings, which was rejected by the impugned order.
Issues
Whether the execution court was required to hold an enquiry under Order XXI Rule 101 CPC when an application under Order XXI Rule 97 was filed by a third party obstructionist.
Whether the summary dismissal of the obstruction application without an enquiry is sustainable under Order XXI Rules 97 and 101 CPC.
Submissions/Arguments
Petitioner argued that no enquiry was held on the application under Order XXI Rule 97 CPC, and the execution court could not have summarily disposed of it based solely on pleadings and arguments.
Petitioner contended that an enquiry and trial in terms of Rule 101 of Order XXI CPC was mandatory, and relied upon Bangalore Development Authority v. N. Nanjappa (CA Nos. 6996-6997/2021) and Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (AIR 1997 SC 856) to assert that all questions of right, title or interest must be determined by the execution court and not by a separate suit.
Judgment Excerpts
The submission of Sri. Mahantesh Patil, learned counsel for the petitioner is that: No enquiry was held on the application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure.
The Execution Court could not have summarily disposed of the said application on the basis of the pleadings and arguments advanced.
There ought to have been an enquiry and a trial in terms of Rule 101 of Order XXI of the Code of Civil Procedure and in regard thereto, he submits that, an enquiry was required to be held.
Procedural History
Suit O.S.No.89/2002 decreed; appeal in R.A.No.1/2008 and second appeal in RSA No.70/2011 decided in favour of decree-holder. Execution Petition No.32/2022 (or 32/2020) filed. Possession warrant issued on 21.03.2022; execution attempted on 14.04.2022, obstructed by petitioner. Petitioner filed O.S.No.9/2022 (renumbered O.S.No.258/2022) and application under Order XXI Rule 97 CPC in execution. Execution court dismissed the application on 05.11.2022. Petitioner filed this writ petition under Article 227 of the Constitution.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXI Rules 97, 99, 101, Section 47
- Constitution of India: Article 227
