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1 - 10 of 11 (0.24 seconds)Bhanwari Lal vs Satyanarain And Another on 4 October, 1994
"6. The controversy is no longer res Integra. This court in Bhanwar Lal v. Satyanarain considered the controversy and had held that even an application filed under Order 21 Rule 35(3) or one filed under Section 47 would be treated as an application under Order XXI Rule 97 and an adjudication is required to be conducted under Rule 93. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order XXI Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In para 7 thereof it was held thus: (SCC p.9)
"In the above view we have taken, the High Court has committed grievous error of Jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25.5.1979 was made, the court should have treated it to be one filed under Order XXI, Rule 97(1) CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances, the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order XXI, Rules 35(3) and 97(2) and Order XXI, Rules 101 and 102 of CPC."
Babu Lal vs Raj Kumar And Ors. on 2 March, 1994
The provisions of Order XXI Rule 104 of the Code of Civil Procedure, cannot be called 'stare a decises' so far as the present case is concerned in any manner whatsoever, inasmuch as, by the decision in Babu Lal v. Raj Kumar (supra), the Hon'ble Supreme Court has not sought to unsettle the statutory provisions of Order XXI Rule 104 of the Code of Civil Procedure in any manner at all. In the present case, admittedly, an ejectment decree was already passed and an ejectment execution proceeding was already pending, when the suit was filed by the plaintiff-respondent No. 1 challenging the said decree in which, the impugned temporary order of injunction was granted. The expression "proceeding" as stated in Order XXI Rule 104 of the Code, according to us would mean an execution proceeding.
Krishna Kumar Modi vs Union Of India (Uoi) And Ors. on 24 July, 1975
10. The decision of the Supreme Court in the case of Krishna Kumar v. Union of India (supra) also would not help the respondents in any way, inasmuch as, that is a decision on the points of ratio decidendi' and "stare a decises." In paragraph No. 20 of the said decision, the apex court has explained the word 'ratio decidendi' inter alia, in the following manner:-
Section 47 in The Code of Civil Procedure, 1908 [Entire Act]
Babulal vs Raj Kumar & Ors on 16 February, 1996
7. So far as the contention of Mr. De that the provisions of Order XXI Rule 104 of the Code of Civil Procedure have become nugatory by the said judgment of the Hon'ble Supreme Court is concerned, the facts and circumstances of the present case make it quite clear that the provisions of Order XXI Rule 104 of the Code of Civil Procedure which Is quoted below, would not be attracted in the present case at all.
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
Article 14 in Constitution of India [Constitution]
Osman Mullick And Ors. vs Md. Alauddin And Ors. on 10 May, 1989
5. No doubt in the case of Osman Mullick and Ors. v. Md. Alauddin and Ors. 1993 Calcutta Weekly Notes 1069, Umesh Chandra Banerjee, J. while explaining inter alia, the scope and ambit of Rule 101 of Order XXI of the Code of Civil Procedure held in paragraph Nos. 15 and 16 of the said Judgment inter alia, as follows:-
Krishena Kumar And Anr. Etc. Etc vs Union Of India And Ors on 13 July, 1990
Mr. De further contends that if it is held as per the Judgments of the Supreme Court as referred to above, that an independant suit filed by a third party challenging the decree claiming an independing right of possession in the disputed property is barred, then the provisions of Order XXI Rule 104 of the Code would become nugatory and in support of his contention, he refers to the decision of the Supreme Court in the case of Krishena Kumar v. Union of India and Ors. .