(1.) Heard learned counsel for the petitioner. No one appears for the opposite party even after several notices validly served on him.
(2.) Petitioner is the sole defendant of Title Suit No. 52 of 1993 which was filed by the plaintiff-opposite party for declaration that possession given to the defendant in Execution Case No. 1 of 1987 was illegal and also for recovery of possession and injunction etc.
(3.) It transpires from the record of the case including the impugned order that the plaintiff had claimed that in an earlier suit bearing Partition Suit No. 79 of 1972 a decree for partition was passed, but due to the collusion of Advocate Commissioner, wrong allotment was made in the Final decree according
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to which the defendant got delivery of possession over the land of the plaintiff who was not a party in the said Partition Suit. It does not appear from the record that either the said Final decree was challenged in any appeal etc. by any one or it was ever set aside, reversed or modified by any Court of law.
(4.) Learned counsel for the petitioner submitted that if the delivery of possession in the Execution case was being affected on plaintiff's land, who was not party to the earlier Partition Suit, he should have resisted or obstructed the same and should have taken recourse to the provision of Order XXI Rule 99 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) in the Executing Court itself. He further averred that Rule 101 of the said Order XXI of the Code specifically provided that all such questions shall be determined by the Executing Court, which would be deemed to have jurisdiction to decide such questions, and hot by a separate suit. Hence, he submitted that the suit was clearly not maintainable due to the said legal bar, but the learned Subordinate Judge VIII, Gopalgunj, wrongly held that Title Suit No. 52 of 1993 was maintainable by the impugned order dated 26.6.1999.
(5.) Learned counsel for the petitioner further averred that under the provision of Order XXI Rule 97 of the Code, only Decree-holder could have filed such petition but in the instant case no such petition was filed by the Decree-holder. Hence, in the said circumstances, it is quite apparent that delivery of possession in the earlier suit was affected in favour of the petitioner (defendant) without any resistance from the third party. He further claimed that the opportunity to file an application under Order XXI Rule 99 of the Code could not have been availed by the Decree-holder or the Judgment-debtor as it clearly provided that where any person other than the Judgment-debtor is dis-possessed of immovable property by the holder of the decree for the possession of such property, he can make an application to the Court complaining of such dis-possession, but no such application having been filed by the stranger third party the provision of Rule 101 of Order XXI of the Code would naturally be attracted which provides that all questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or 99 shall be determined by the Court dealing with the application and not by a separate suit and for this purpose the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
(6.) Petitioner's learned counsel relied on a decision of a Division Bench of this Court in case of Abdul Bari v. Anisul Rahman and Anr., reported in 1993 (1) BLJR, 296, in Paragraph 19(C) of which it was specifically held that in the event a third party is dis-possessed of the property, he may file an application under Order XXI Rule 99 of the Code and get his claim adjudicated by the Executing Court itself in which all questions relating to right, title or interest of the parties in the property will be decided in the proceeding and not by way of a separate suit between the parties and the decision will have the force of decree. However, in another decision a Full Bench of Karnataka High Court in case of V.K. Rama Setty v. A. Gopinath held that under Rule 99 it is optional for a person, who is other than the Judgment-debtor and has been dis-possessed to make an application to the Court complaining of such dispossession but the use of the word 'may' in the said Rule gave an option to a person to file an application before the Executing Court, but this Rule does not make his remedy exhaustive debarring him from preferring a suit for possession completely. It was further held that it will be for the complainant to choose either of the forums, hence if he had filed an application under Rule 99, then filing a fresh suit may be barred under Rule 101, but if no such application had been filed by the complainant in the Executing Court, then a suit would naturally be maintainable and will not be affected by the bar of Rule 101.
(7.) The learned Court below appears to have relied upon three decision; the first being of the Hon'ble Apex Court in case of Babulal v. Raj Kumar and Ors. but the said case was not with respect to Rule 99 or 101, and it was with respect to a case under Rule 98 and 103 of Order XXI of the Code. The second decision relied upon by the learned Court below was in case of Srimod Singh v. Suresh Singh and Ors., reported in 1999 (2) PLJR 252, in which it was held that when no application under Rule 99 was filed by the third person complaining dispossession, he can file a fresh suit against the said decree and his dis-possession. The third decision relied upon by the learned Lower Court was a Division Bench Judgment of Andhra Pradesh High Court in case of Pawan Kumar and Anr. v. K. Gopala Krishna, reported in AIR 1998 AP 247. In which similar view was taken.
(8.) From perusal of the impugned order of the learned Court below, it is quite apparent that Opposite party had not filed any application under Rule 97 or Rule 99 of Order XXI of the Code before the Executing Court in Execution Case No. 1 of 1987 and no enquiry was held nor any order was passed in the said Execution proceeding with respect to the said matter in which possession appears to have been delivered through the processes of the Court without any resistance. In the said circumstances, it is quite apparent that the matter has been raised by the complainant (O.P) for the first time in Title Suit No. 52 of 1993 in which his dis-possession in Execution Case No. 1 of 1987 has been challenged and recovery of possession has been claimed alongwith other reliefs.
(9.) Law is well settled in the instant matter that a person who is other than a Judgment-Debtor and claims to have been dis-possessed has got two options; either he can file an application under Order XXI Rule 99 of the Code or he can file a separate suit with respect thereto. But if he utilises the first option of Rule 99 then ordinarily he can not file a fresh suit due-to the bar of Rule 101. But if he has not filed any application under Rule 99 then the suit filed by him for the said relief will be maintainable and will not be affected by the bar provided under Rule 101. Hence, in the instant case also the filing of the suit can not legally be held to be barred under provision of Order XXI Rule 101 of the Code.
(10.) In the said circumstances, I do not find any illegality or jurisdictional error in the impugned order and accordingly this Civil Revision is dismissed