Uttarakhand High Court
CLR/122/2023 on 25 August, 2023
Author: Pankaj Purohit
Bench: Pankaj Purohit
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
CLR No. 122 of 2023
Hon'ble Pankaj Purohit, J.
Mr. Piyush Garg, learned counsel assisted by Mr. Naitik Bhatt, learned counsel for the revisionist.
2. It is the contention of the learned counsel for the revisionist that a JSCC suit for eviction of respondent no.2 was contended between respondent no.1-Kiran Dutta and respondent no.2-Poonam, wherein, the suit was decreed vide order dated 28.01.2021 by the learned third Additional District Judge/SCC Judge, Dehradun in SCC Case No. 10 of 2014 and the respondent no.2 was evicted from the demised property.
3. The decree passed by the SCC Court was put to execution by Kiran Dutt, which was registered as Execution Case No. 03 of 2021 in the Executing Court.
4. An application was moved by the revisionist in the aforesaid Execution Case claiming her right, title and interest in the suit property, which was registered as Miscellaneous Case No. 12 of 2023, Chandraprabha Vs. Kiran Dutta.
5. The revisionist moved an application in the said Miscellaneous Case No. 12 of 2023, Chandraprabha Vs. Kiran Dutta, on 21.07.2023, with a prayer to frame appropriate issues for proper adjudication of the matter and with this application the proposed issues were also annexed.
6. The learned Executing Court after calling for the objection to said application and hearing both the parties, by the impugned order rejected the said application on the reasoning that the adjudication of the application moved under Order 21 Rule 97 and 99 CPC can be done without framing of the issues and the same can be decided on the admitted facts or on the averments made by the revisionist, who filed application under Section 21 Rule 97 CPC and respondent no.1.
7. It has also been noted by the learned Executing Court that the Court can direct the parties to adduce evidence for such determination, if the Court deems it necessary. It has also been noted that the parties have filed their respective documents alongwith application as well as objections.
8. The learned counsel for the revisionist submitted that the impugned order passed by the learned Executing Court dated 09.08.2023 runs counter to the provisions of the Order 21 Rule 101 CPC, which prohibits the revisionist to bring a fresh suit for determination of her right, title and interest and in that event even no issues would be framed, the parties should be free to adduce evidence in order to proper adjudication of the lis between the parties during execution.
9. I have carefully gone through the provisions contained in Order 21 Rule 97 and 101 CPC as well as the impugned order. I found the argument advanced by the learned counsel for the revisionist convincing in as much as, even if no issues are framed pursuant to such application under Order 21 Rule 97 CPC, yet, in order to appreciate the documents filed by the respondents, the evidence would be required.
10. Without the legal proof of the document, the same could not be considered and read by the Executing Court to decide the application by which right, title and interest is claimed.
11. Issue notice to the respondents returnable within four weeks.
12. Steps to be taken within one week from today.
13. List on 06.10.2023.
14. The impugned order dated 09.08.2023 and the proceedings of Execution Case SCC No. 03 of 2021, Kiran Dutta Vs. Poonam, are stayed till next date of listing.
(Pankaj Purohit, J.) 25.08.2023 PN/-