Patna High Court
Most. Sanjna Devi vs Amar Yadav And Ors. on 8 January, 2007
Equivalent citations: AIR2008PAT44, AIR 2008 PATNA 44, 2008 AIHC NOC 346 (2007) 4 PAT LJR 727, (2007) 4 PAT LJR 727, 2008 AIHC (NOC) 346 (PAT.) = AIR 2008 PATNA 44
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
ORDER Navaniti Prasad Singh, J.
1. Heard Mr. Keshav Srivastava and Mr. Shashi Shekhar Dwivedi, learned senior counsel for the parties.
2. The petitioner was the obstructor to execution of a decree and had filed Misc. Case No. 18/03 in terms of Order 21, Rule 97 CPC in the Execution Case No. 2/1989 pending before the learned Sub Judge I, Madhubani. The same was held to be not maintainable.
3. Being aggrieved by the said decision the present revision application has been filed.
4. Mr. Dwivedi learned senior counsel appearing for the decree holder opposite party raised a preliminary objection as to the maintainability of the civil revision application. He submitted that in terms of Order 21 Rule 103 CPC an order passed in such a proceeding is deemed to be a decree and if that be so it is appealable. If an appeal against such an order then in terms of Section 115(2) CPC the order is not amenable to revisional jurisdiction.
5. On behalf of the petitioner Mr. Keshav Srivastava. learned senior counsel submitted that for an order to be a deemed decree in terms of Rule 103 of Order 21, it must be an order passed after adjudication as provided therein. He submitted that when a decree is to be executed and in course of execution it is obstructed by a party, who was not a party to the suit, and the said obstructionist filed an application in terms of Order 21. Rule 97 CPC then the executing Court has to decide the objection, if it raises the question of right, title or interest virtually as a suit and once that is accepted then the proceedings have to be conducted in a manner similar to that of a suit. The objection has to be admitted, rejoinders called for, issues framed, evidence taken and then after hearing the arguments, final order passed. As the origin of such an objection is not by way of plaint the proceeding cannot be said to be a suit in the strict sense but is an akin to suit and therefore the legislature has used "deemed to be a decree" in Rule 103, Order 21 CPC and not "is a decree".
6. I have heard learned senior counsel at length and with their consent this revision application is being disposed of at the stage of admission itself.
7. The petitioner filed her objection to the execution of decree on basis whereof the present Misc. Case No. 18 of 2003 was registered. She pleaded that the property, in question, belonged to her farther. After the death of her father and subsequently her mother, the three brothers and she were left. She was living on part of the property since the time of her parents. One of the brothers filed a partition suit against his two brothers by it she was not made a party thereto. A preliminary decree was passed and thereafter final decree was drawn up. When this decree was sought to be executed against her in respect of the property she was occupying, she objected to its execution against her, as being daughter on death of her parents. She had inheritable rights and inherited interest in the property. The judgment and decree obtained by the brother could not operate against her interest. The decree holder brother objected and filed a rejoinder stating that the applicant (obstructionist) was the sister and as the other two brothers who were judgment debtors had failed to stall execution proceeding being Execution Case No. 2 of 1989 they had set up their sister to do the same. The execution Court without any further finding held the objection to be not maintainable holding thus:
But the petitioner has not filed any paper or document relating her title and interest in respect of her claim over plot No. 4544 of Mauza Ekdara P.S. Khajduli, District Madhubani area 2k 5dh 75 dhurki. Under these circumstances, the present misc. case is not maintainable.
8. It would be manifest from the aforesaid facts that it is not in dispute that the petitioner was the sister. It is not in dispute that she was not made party to the partition suit. It is not in dispute that she claims possession to certain part of the property, yet the executing Court held her application to be not maintainable only because she could not file any paper or document relating to her title and interest. Parties are agreed that no one was called to lead the evidence at that stage. The executing 'Court merely looked to the objection filed and its rejoinder and held the objection to be not maintainable. Thus, admittedly, there was no adjudication at that stage.
9. Now the question is in such a situation can it be deemed that such an order is deemed to be a decree in terms of Rule 103 of Order 21 CPC or would be an order without adjudication and thus amenable to revisional Jurisdiction of this Court.
10. In my view the authorities are consistent and well established that in a proceeding pursuant to objection in terms of Rule 97 of Order 21 the proceeding is like a suit. Earlier it was only enquiry that was required to be made. The legislature subsequently amended the provision by introducing a concept of adjudication. Thereafter the Courts have taken the consistent views that adjudication would make it similar to a suit. If that be so then the paraphernalia of a suit would follow. There would be a rejoinder (akin to a written statement), issues broadly indicated, parties given a chance to substantiate their claims by evidence. It is as a result of that exercise that the claim is said to be adjudicated upon and it is rightly submitted on the authority of Ram Kumar Tiwari and Ors. v. Deenath and Ors. since reported in AIR 2002 Chhattisgarh 1 that if there is no adjudication then it is not an order in terms of Rule 103 of Order 21. Such an order would amount a material irregularity going to the extent of being an order without Jurisdiction. For an order to be passed in terms of Rule 103 of Order 21, it must be preceded by an adjudication. I fully agree and adopt the law.
11. From the facts stated above, it would be seen that without any adjudication the executing Court held the application of the petitioner to be not maintainable and that too on the ground that no document or paper being produced in support of her claim. Apart from that I failed to understand that when the parties agreed that the petitioner was the sister and prima facie the property would devolve from her parent what more documents are required to be produced. That apart there being no adjudication, as indicated above, it cannot be said that the order that was passed is in consonance with or in terms of Rule 103 of Order 21 CPC. That being so, it cannot be held to be a decree. If it is not a decree then no appeal lie and if no appeal, it is revisable by this Court. The revision application is thus maintainable. I reject the objection of Mr. Dwivedi, learned senior counsel for the opposite party.
12. In view of the facts stated above, I have no hesitation to hold that the order, as passed by the executing Court is wholly without jurisdiction. He had to, as a matter of law, adjudicate upon the claim. The executing Court has failed to discharge its jurisdiction in a manner required by Rule 103 of Order 21 CPC. The order dated 20-1-2006 passed in Misc. Case No. 18 of 2003 is liable to be set aside and is set aside as such.
The revision application is accordingly allowed.