IN THE HIGH COURT OF JHARKHAND AT RANCHI

C.M.P. No. 690 of 2024

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1. Ramchandra Ram @ Sahu, aged about - 52 years,

2. Dilranjan Ram @ Sahu, aged about – 44 years, Both are sons of –

Sri Mahavir Ram, Residents of Village-Argora Purana Chowk, Kunj
Vihar, Near Argora Talab, Argora, P.O. – Argora, P.S.- Argora,
District- Ranchi.
… … Applicants/Petitioners

Versus

1. Smt. Sumitra Devi wife of Ledwa Sahu, resident of Village

Berwari, P.O. – Gondli Pokhar, P.S. –Argora, District-Ranchi.

2. Smt. Chattan Devi, wife of Dashrath Ram Ganjhu, resident of

Village Sengutu, Hithu Tola, P.O. + P.S. Khunti, District- Khunti.

3. Smt. Nanki Devi, wife of Sri, Mahavir Ram, resident of Village

Argora Purana Chowk, Kunj Vihar, Near Argora Talab, Argora,
P.O. & P.S. Argora, District Ranchi.
… … Opposite Parties

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CORAM: HON’BLE THE ACTING CHIEF JUSTICE
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For the Petitioners : Mr. Atul Kumar Tiwari, Advocate
For the O.P. 1 & 2 : Mr. Indrajit Sinha, Advocate
: Mr. Ankit Vishal, Advocate
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ORAL ORDER
02/Dated: 6th September, 2024
Per Sujit Narayan Prasad, A.C.J.:
1. The instant petition is filed under Article 227 of the Constitution of
India directed against the order dated 28.06.2024 passed by learned
Sub-Judge-II, Ranchi in M.C.A. No. 1434 of 2023 arising out of
Execution Case No. 06 of 2003 whereby and whereunder the

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petition filed on behalf of the petitioners under Order XXI Rule 26
and 97 has been rejected.

Factual Matrix:

2. The brief facts as per the pleadings is required to be enumerated as

hereinunder:

The petitioners purchased property being Khata No. 253 and after
purchase of aforesaid property, petitioners from reliable sources
learnt that one partition suit being Partition Suit No. 251 of 1983
was filed by Sumitra Devi and Chattan Devi in the Court of Special
Sub Judge, Ranchi against Ratni Devi and others and these
petitioners were not made as necessary party in the aforesaid
Partition Suit No. 251 of 1983.

Further, the Khata No. 253 is recorded in the name of Santok

Mahto, Shiv Narayan Mahto and Shalik Mahto, in the R.S. Record of
right measuring total comparison area 13.29 acres.

In the year 1961, the Government acquired 1.12 acres of land

under Khata No. 253 and in question has been partly acquired by the
State. Morever, in remarks Column of Khata No. 253, the 1.12 acres
of land which were acquired by the Government was mentioned
under the kabjwari of Sahlik Mahto.

After the deduction of 1.12 acres, total measuring land remain

balance 12.17 acres and all the recorded raiyat Santok Mahto, Shiv
Narayan Mahto and Shalik Mahto having equal share i.e. 1/3rd over
the entire land.

The Shalik Mahto was also entitle to get 1/3rd share over the
entire land under Khata No. 253 out of balance remaining land 12.17
acres.

It is the case of the petitioners that decree holders and defendant

no. 1 and 2 were well-acquired knowledge that the Ratni Devi sold
1.43 ½ acres of land in favour of Nanki Devi, Ramchandra Ram and

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Dilranjan Ram and despite of that the petitioners were not made
necessary parties by the decree holders/plaintiffs in Partition Suit
No. 251 of 1983.

On perusal of the plaint of the Partition Suit No. 251 of 1983 it

would be evident that during the pendency of the proceeding all the
legal heirs of recorded raiyat of Khata No. 253 were made as
necessary party.

These plaintiffs failed to incorporate or to add the entire

properties 12.17 acres of land of Khata No. 253 which was not
mentioned in the plaint nor mentioned in the schedule of the plaint.

Further, the preliminary decree passed in Partition Suit No. 251 of

1983 the purchased property of the petitioners beside many other
property sold by Ratni Devi were allotted to the Ratni Devi and
Nanki Devi besides 36 decimals of land as their joint share after
calculating the entire area of the Khata No. 253.

The pleader Commissioner intentionally allotted these property

which were allotted to Nanki Devi and Ratni Devi which were
erroneously and illegally allotted to Sumitra Devi and Chattan Devi
as their share which was absolutely against the verdict of
Preliminary Decree passed by the then Special Sub Judge.

On perusal of the schedule of the plaint, it would be transpired

that the land measuring in an area 1.12 acres under bakabje shown
in the name of Shalik Mahto which were acquired by the government
which is included in the schedule of the plaint.

As per the Khatiyan land shown bakabje of Shalik Mahto

measuring in an area 3.53 acres out of which 1.12 acres acquired by
the government and balance land remaining 2.41 acres.

Neither the Nanki Devi, the mother of the petitioners nor these
petitioners have or had any knowledge or notice about the
preparation of final decree as well regarding passed of the final

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decree passed in the Partition Suit Case No. 251 of 1983. Thereafter,
the applicants/petitioners have got the knowledge of the same only
when the Civil Court Nazir went to the spot for execution of the
decree.

As soon as the petitioners learnt about the aforesaid final decree

and execution case immediately made contact with their advocate
and also filed a Title Suit No. 159 of 2007 against Sumitra Devi and
Chattan Devi and Others, but the same has been withdrawn and
thereafter, the petitioners/applicants filed a fresh suit being Original
Suit (Title) No. 57 of 2020 which is pending in the Court of Civil
Judge Sr. Division-XIV, Ranchi.

Further, the petitioners in order to stay the proceedings of

Execution Case No. 06 of 2003 till disposal of the Original Suit (Title)
No. 57 of 2020 had filed the application under Order XXI Rule 26 and
97 but the same was dismissed vide order dated 28.06.2024, against
which the instant petition is preferred.

3. It is evident from the factual aspect that a suit for partition was filed
being Partition Suit No. 251 of 1983. The preliminary decree was
passed therein in which the suit property has been partitioned.
Subsequent thereto, the final decree was prepared on 07.09.1992.
This execution case has been filed sometime in the year 2003, prior
to completion of the period of 12 years.

4. It is evident from the factual aspect as referred in the impugned

order that the petitioner has also filed the title suit being Title Suit
No. 159 of 2007 but the same has been withdrawn.

5. The Executing Court has proceeded for execution of the decree

passed in the Partition Suit No. 251 of 1983. The petitioners have
filed a petition under Order-XXI Rule 26 and 97 claiming themselves
to be the objector. The said petition was contested by the
respondent by filing the rejoinder wherein the fact in entirety

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regarding passing of the preliminary as also the final decree has
been referred.

The learned Court, on consideration of the record, has found that

the Ratni Devi w/o Late Shalik Mahto has sold the property on
10.09.1983 prior to the institution of the Partition Suit No. 251 of
1983. The fact about the party to the partition suit of Ratni Devi is
not in dispute and the same cannot be disputed. The learned
Executing Court after taking into consideration the aforesaid aspect
of the matter has rejected the petition filed under Order XXI Rule 26
and 97 which is the subject matter of the present petition.

Submissions made on behalf of the learned counsel appearing on

behalf of the Petitioners:

6. The learned counsel appearing on behalf of the petitioner has

submitted that the learned Court while rejecting the petition filed
under Order XXI Rule 26 and 97 has committed serious error since
the same has passed without taking into consideration that the
petitioners are in the possession of the land and as such in that
capacity they are objector and hence the petition has been filed
under Order XXI Rule 26 and 97.

7. It has further been submitted that the present petitioners were not
noticed at the time of preparation of the final decree passed way
back in the year 1992. The execution proceeding for executing the
said decree has been filed in the year 2003 as such however their
possession has been accepted right from the date of the preparation
of the final decree and therefore their capacity of objector on the
ground of having possession in the land in question has not been
taken into consideration while dealing with the petition filed under
Order XXI Rule 26 and 97 of CPC. As such, the impugned order
suffers from an error and hence the same is fit to be quashed and set
aside.

Submissions made on behalf of the learned counsel appearing on

behalf of the Respondents:
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8. Per contra, Mr. Ankit Vishal, learned counsel appearing for the
respondent, while defending the impugned order, has submitted that
the ground which has been taken that at the time of preparation of
the final decree, the petitioners have not been noticed cannot be said
to be valid argument reason being that the final decree is
continuation of the proceeding of the partition suit and the first
stage will be said to be concluded the day when the preliminary
decree will be passed and subject to the Takhtabandhi, the final
decree is to be prepared.

9. Therefore, there is no need to issue notice to the party concerned

because the final decree is also prepared by the same Court by which
the preliminary decree has been passed.

10. The argument has been advanced that merely because the execution
case has been filed in the year 2003 for executing the final decree
passed in sometime in the year 1992 cannot be a ground to consider
the status of the petitioner as an objector.

11. It is due to the reason that mother of the petitioners namely Nanki
Devi, respondent no. 3, was the party to the proceeding and decree
for partition.

12. Since, both the petitioners, namely Ramchandra Ram and Dilranjan
Ram are the sons of Smt. Nanki Devi, who was party to the Partition
Suit No. 251 of 1983, as such, it is incorrect on the part of the
petitioners to take the ground that they were not party and as such,
their status is not to be treated as an objector for maintaining a
petition under Order XXI, Rule 26 and 97.

13. The learned counsel has also taken the ground that since the mother
of both the petitioners is the party and as such merely because both
the petitioners are sons of the party to the proceeding cannot be
construed to be an objector rather the judgment will be said to be
effective on their part also, even though whatever may be the
capacity.

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14. The learned counsel based upon the aforesaid ground has submitted
that the order impugned since has been passed by taking into
consideration the aforesaid aspect of the matter, therefore the order
cannot be said to suffer from an error.

15. He has submitted that a declaratory suit was also filed being Title
Suit No. 159 of 2007 but subsequently withdrawn on 31.01.2020
with a liberty to file fresh suit and in pursuance to the said liberty
the fresh suit has been filed which is lying pending.

Analysis:

16. This Court has heard the learned counsel for the parties and gone
across the pleading as also the finding recorded by the learned Court
in the impugned order.

17. The issue which requires consideration by this Court is that if a

party to the proceeding can be considered to be an objector to
maintain a petition filed under Order XXI Rule 97.

18. This Court in order to answer the said issue needs to refer the
provision of Order XXI Rule 97 which reads as under:

“97. Resistance or obstruction to possession of immovable

property.—(1) Where the holder of a decree for the
possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the
property, he may make an application to the Court
complaining of such resistance or obstruction.

6[(2) Where any application is made under sub-rule (1),

the Court shall proceed to adjudicate upon the application
in accordance with the provisions herein contained.]”

19. The provisions as contained under Order XXI Rule 97 is by way of a

remedy made available to any person except the judgment debtor
who is claiming his interest upon the property in question in which
the decree has been passed whose status is to be considered as an

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objector taking an objection in the execution of the decree which
have been passed.

20. Order XXI Rule 97 clearly stipulates application by the judgment

debtor under Rule 97 C.P.C is not permissible. Expression any
person in Rule 97 has widening the scope of power so as to enable to
executing court to adjudicate the claim.

21. It includes all the persons resisting delivery of possession, claiming

right in the property, even those not bound by the decree, including
tenants or any other persons claiming right on their own, including a
stranger. It is clearly stipulated in Rule 97 that where any third party
wants to raise an objection to the effect that decree cannot be
executed against him, he is entitled to file an application under
Order 21 Rule 97 CPC which would have to be decided on its own
merits by the executing court in accordance with law.

22. The Hon’ble Apex Court in the case of Sameer Singh & Anr. Vs.
Abdul Rab & Ors. (2015) 1 SCC 379, has observed that the
Executing Court has the authority to adjudicate all the questions
pertaining to right, title or interest in the property arising between
the parties including the claim of a stranger who apprehends
dispossession from the immovable property. This is provided to
avoid multiplicity of proceedings and if a court declines to adjudicate
by stating that it lacks jurisdiction, that by itself would occasion
failure on part of the Executing Court to exercise the jurisdiction
vested in it.

23. In most recent judgment in Jini Dhanrajgir & Anr. Vs. Shibu
Mathew & Anr. (2023) SCC Online SC 643, the legal position has
been reiterated by the Hon’ble Apex Court that Rules 97 to 103 of
Order XXI of the CPC provide the sole remedy both to the parties to a
suit as well as to a stranger to the decree put to execution.

24. The Hon’ble Apex Court in the case of Smt. Ved Kumari (dead
through her legal representative) Dr. Vijay Agarwal Vs.

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Municipal Corporation of Delhi through its Commissioner 2023
INSC 764 has categorically held that it was the duty of the Executing
Court to issue warrant of possession for effecting physical delivery
of the suit land to the decree-holder in terms of suit schedule
property and if any resistance is offered by any stranger to the
decree, the same be adjudicated upon in accordance with Rules 97 to
101 of Order XXI of the CPC. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:

“15. In view of the settled legal position, as noted (supra), it

was the duty of the Executing Court to issue warrant of
possession for effecting physical delivery of the suit land to
the decree-holder in terms of suit schedule property and if
any resistance is offered by any stranger to the decree, the
same be adjudicated upon in accordance with Rules 97 to
101 of Order XXI of the CPC. The Executing Court could not
have dismissed the execution petition by treating the decree
to be inexecutable merely on the basis that the decree
holder has lost possession to a third party/encroacher. If
this is allowed to happen, every judgment-debtor who is in
possession of the immoveable property till the decree is
passed, shall hand over possession to a third party to defeat
the decree-holder’s right and entitlement to enjoy the fruits
of litigation and this may continue indefinitely and no
decree for immovable property can be executed.”

25. Thus, it is evident from the aforesaid legal position that it is the duty
of the Executing Court to execute the decree in terms of suit
schedule property and if any resistance is offered by any stranger to
the decree, the same be adjudicated upon in accordance with Rules
97 to 101 of Order XXI of the CPC.

26. Further, if the objector will be able to substantiate his claim over
the property which has been decreed then the order is required to
be passed which will be construed to be under Order XXI Rule 101
CPC. The implication of the said order will be in supersession to the

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decree passed and, in those circumstances, the decree already
passed will have no meaning, rather the order which will be passed
under Order XXI Rule 101 CPC will have the impact over the suit
property.

27. Adverting the factual aspect of the present case, it is evident and the
same is also admitted that mother of both the petitioners were party
to the Partition Suit No. 251 of 1983. The decree was in the said
partition suit said to be a preliminary decree and after the process
having been fulfilled of Takhtabandi etc., the final decree has been
prepared on 07.09.1992 The execution case has been filed in the
year 2003, however, before completion of the 12 years.

28. The petitioners, who were the son of party to the Partition Suit No.
251 of 1983 has made an application under Order XXI Rule 26 and
97 in the capacity claiming themselves to be the objector.

29. The learned court has rejected the said plea on the ground that once
the decree in the partition suit has been filed when the mother of the
petitioners was the party, hence, the status of both the petitioners
cannot be said to be an objector.

30. Further consideration has been taken that a Title Suit No. 159 of
2007 was filed by the party but they have withdrawn it, however,
with the liberty to file a fresh suit. The fresh suit has also been filed
which is sub-judice before the competent court of civil jurisdiction.

31. The issue of objector which has been taken note by the learned
Court herein cannot be said to suffer from an error reason being that
the decree to the partition suit has been passed wherein the mother
of both the petitioners was one of the parties and the sons in view
thereof cannot be said to an objector rather the decree passed in the
partition suit will be binding. However, the plea has been taken on
behalf of the petitioner that the suit property in question has been
purchased through an instrument as under Transfer of Property Act.
We are not making any comment herein since the declaratory suit is

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lying pending for its consideration, rather, this Court only
considering the status of the present petitioners to maintain the
petition filed under Order XXI Rule 97.

32. This Court in view of the admitted fact that the property in question
for which the decree has been passed where the mother was the
party to the said proceeding and the said decree is the subject
matter of Execution Case No. 06 of 2023 proceeding, therefore, this
Court is of the view merely because both the petitioners are the sons
of the party to the proceeding, cannot be said to be an objector in the
petition under Order XXI Rule 97.

33. This Court in view thereof and adverting to the reason assigned by
the learned Court is of the view that the petition filed under Order
XXI Rule 97 has been rejected by taking into consideration the
aforesaid reason which according to our considered view cannot
suffer from an error.

34. Accordingly, the instant petition being C.M.P. No. 690 of 2024 stands
disposed of.

35. In consequence thereof, pending interlocutory applications, if any,

also stands disposed of.

36. The executing court is directed to dispose of the matter within 6

months.

(Sujit Narayan Prasad, A.C.J.)

Samarth/ A.F.R.

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