'Any Person' Under Order XXI Rule 97(1) CPC Means 'All Persons' Including Strangers To Original Suit: Gauhati High Court

While interpreting the sub-rule, a Single Judge Bench of Justice Robin Phukan held,

"However, a person, including a stranger, could maintain a petition under Rule 97 of Order XXI and object and get adjudication when he sought to be dispossessed by the decree holder. The expression 'any person' under sub-clause (1) Rule 97 includes 'all person'."

Factual Background:

The respondent herein had instituted a title suit, wherein he got a decree for suit land. Thereafter, he filed an execution suit before the Civil Judge. While the case was pending for execution, the respondent got executed a Sale Deed for the land through the Civil Judge, without modifying the aforementioned decree.

Thereafter, the present petitioners, whose land also allegedly falls in the decreetal land, filed an application, before the Civil Judge, under Section 47 read with Rules 97 & 101 of Order XXI and Section 151 of CPC, apprehending that if the respondent proceeds for execution of the decree, then the remaining land of the petitioners would come into the decreetal land. However, the Civil Judge, dismissed the petition after hearing both the parties.

Subsequently, the petitioners again filed one petition before the Civil Judge, under Order XLVII Rule 1 read with Section 151 of the Code of Civil Procedure. After hearing the parties, the Civil Judge dismissed the same vide order dated 04.05.2019. Hence, this Civil Revision Petition was filed before the High Court.

Submissions of the Petitioners:

Ghanshyam Das, counsel for the petitioners, submitted that the Court below had dismissed the two petitions without 'just' ground and the said orders suffer from manifest illegalities and that if the decree is executed, then the 19 Lechas of land of the petitioners will fall in the decreetal land and the petitioners will be highly prejudiced. Therefore, he contended to set aside the impugned orders.

Submissions of the Respondent:

D. K. Kakoty, counsel for the respondent, argued that the petitioners are stranger as they were neither party in the title suit nor in the execution proceeding and the Court below had rightly rejected the petition filed under Section 47 Code of Civil Procedure, and under Order XXI Rules 97 and 101, and also the review petition as the same are not maintainable in the eyes of law and there is no cause for apprehension that in the event of execution of the decree dated 04.12.2012, 19 Lechas of their land will fall in the decreetal land. Therefore, he prayed to dismiss the petition.

Observations of the Court:

After going through the petition, contentions and affidavits, the Court observed that the petitioner's land is not covered by the decreetal land, which is totally different and the said land is also not in their possession. It is only the apprehension of the petitioners that if the decree, passed in the aforesaid title suit, is allowed to be executed then it will affect their right, title and interest in respect of their land.

Further, it held that the petitioners are not parties to the main suit. They could not also establish that the decree is void ab-initio and is a nullity and thereby, not capable of execution under the law, either because it was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. Since none of the aforementioned eventualities occurred, as recognized in law for rendering a decree inexecutable, it was held that the petitioners could not maintain an application under Section 47. In holding so it derived authority from the judgment of the Apex Court in Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552.

But at the same time, placing reliance on Sreenath and Anr. v. Rajesh & Ors., AIR 1998 SC 1827, the Court ruled that a person, including a 'stranger', could maintain a petition under Rule 97 of Order XXI and object and get adjudication when he sought to be dispossessed by the decree holder. Thus, the expression 'any person' under sub-clause (1) Rule 97 includes 'all persons'. All disputes between 'any such person' and 'decree holder' is to be adjudicated by the executing court under Order XXI Rule 101.

But as in the instant case, the petitioners were not sought to be dispossessed by the decree holder, the Court did not find fault with the conclusion arrived by the Civil Judge. Accordingly, the revision was dismissed.

Case Title: Sri Kulendra Nath Kakati & Anr. v. Sri Bhabesh Baruah & Ors.

Case No.: CRP/113/2019

Judgment Dated: 21 March 2022

Coram: Justice Robin Phukan

Counsel for the Petitioners: Mr. Ghanashyam Das, Advocate

Counsel for the Respondent: Mr. D. K. Kakoty, Advocate

Citation: 2022 LiveLaw (Gau) 20