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PUSHPA RANI V/S OM PRAKASH & OTHERS, decided on Wednesday, December 14, 2016.
[ In the High Court of Rajasthan Jodhpur Bench, Civil Writ No. 14661 of 2016. ] 14/12/2016
Advocate(s) : Dron Kaushik.
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  "2017 (2) CivCC 15 "  ==   ""  

    1. By way of this writ petition the petitioner seeks to assail order dated 26.10.2016 passed by the Civil Judge Hanumangarh in Execution Case No.13/2007 and prays that his application filed under section 151 CPC be allowed.2. The petitioner has set up a case that she is the actual owner of the shop which was originally of Smt Bhanwa Devi w/o Ganga Ram. It is stated that Bhanwa Devi and Ganga Ram had adopted her legally way back on 22.01.1953 and she has also filed a suit for declaring her to be their legal heir and giving her legal status of heir & daughter of late Bhanwa Devi w/o Ganga Ram and Ganga Ram. It is submitted that in view thereof she must be treated as owner of the suit premises and the proceedings initiated by the decree-holder under Order 21 Rule 97 CPC be set aside and the execution proceedings may not be allowed to be continued in favour of the decree-holder.3. The learned counsel further submits that as per Order 21 Rule 101 CPC all questions including relating to right title and interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 relating to adjudication of the application ought to be determined by the court dealing with the application. The executing court however has not accepted the application under Section 151 CPC and has wrongly rejected the claim of the petitioner vide impugned order dated 26.10.2016. The same be therefore set aside.4. A look at the record submitted by the petitioner goes to show that already a suit is pending with regard to her legal status wherein decree-holders have also been impleaded as party. Said suit shall take its own course. It is however surprising that in execution proceedings relating to eviction of a tenant from the suit premises which was in ownership of Smt Bhanwa Devi and the respondents had filed eviction suit as land lord which has been decreed and appeal against which was also dismissed; how could the petitioner be declared to be the owner of the property by the executing court.5. Such an application moved by the petitioner is wholly misconceived and I find there is no illegality or judicial impropriety in passing of the order dated 26.10.2016 by the learned Civil Judge Hanumangarh.6. The submission relating to Order 21 Rule 101 CPC is also wholly misconceived. In the proceeding undertaken by the respondents the competent courts have treated the respondent Om Prakash as landlord while the execution proceedings have been initiated against the tenant. There is no occasion for the executing court to decide title in regard to parties in the proceedings for eviction of a tenant by the landlord. In view thereof the submission of the learned counsel for the petitioner has no merit and deserves to be rejected.In view of aforesaid the writ petition is devoid of merits and is dismissed.Application held rightly dismissed - Writ Petition dismissed.