- (1.) Whether the objector, who was not a party to the decree, can file objections before the executing Court under the provisions contained in Order 21, Rule 97, CPC or can seek relief by filing a substantive civil suit, is a crucial legal question which arises for consideration in the present appeal.
(2.) This question emerges in the following circumstances : (i) The appellant Ram Narain was indisputably not a party to suit No. 142/77. However, when the decree in that suit was sought to be executed, the appellant moved an application under Order 21, Rule 97 of the Code of Civil Procedure but that application was rejected by the executing Court on 4.7.1994 and a direction was issued that he could file a civil suit. Thereupon the appellant instituted a substantive suit No. 50/94 for protecting his possession with regard to property in question. In that suit he took out an application for interim relief under Order 39, Rules 1 and 2 read with Section 151 CPC with was dismissed by the learned Additional District Judge No. 1 Jaipur City vide order dated 17.10.1994. (ii) The appellant preferred an appeal against the order under the provision of Order 43, Rule 1, CPC. This Court (Hon'ble M.P. Singh, J.) dismissed the appeal and passed following order on 23.1.1994. "After hearing the learned Counsel for the parties. I am of the view that the impugned order does not suffer from any illegality. The appeal is hereby dismissed. However, it is open to the appellant in case he so desires, to file an application under Order 22, Rule 99 of Civil Procedure Code." (iii) The Hon'ble Supreme Court in Civil Appeal No. 5385/1995 decided on 3.5.1995, set aside the aforesaid order and remitted the matter to this Court for fresh consideration on, merits. (iv) While deciding the Civil Appeal the Hon'ble Supreme Court observed thus : "The learned single Judge after hearing Counsel observed that the impugned order did not suffer from any illegality and dismissed the appeal but at the same time observed that it was open to the appellant, in case he so desired, to file an application under Order 21, Rule 99 of the Civil Procedure Code. It is difficult to comprehend from the said order whether the learned single Judge was of the opinion that the substantive suit filed by the appellant was not maintainable in view of Section 47 of the Code of Civil Procedure. If that was so, both the order of the Additional District Judge on merits as well as the order of the High Court holding that it did not suffer from illegality would have to be effaced and the original order of the Executing Court rejecting the application under Order 21, Rule 97, CPC, would have to be revived if the latter part of the order of the learned single Judge is to make any sense. In the circumstances, we are of the opinion that the learned single Judge ought to have applied his mind to the question whether the substantive suit was maintainable, notwithstanding the executing Court's order in the application under Order 21, Rule 97, CPC, and if the Court was of the opinion that the substantive suit was not maintainable, the Court should have revived the application against the order wherein no party appeared to have filed any proceedings in the higher Court and an appropriate order should have been made to ensure that the plaintiff is not rendered without a remedy altogether. In the circumstances, we think that the order of the High Court cannot be allowed to stand, more so because once the High Court affirms the order made by the Additional District Judge on merits the appellant would hardly have room to stand before the executing Court even if he applies afresh or is application under Order 21, Rule 97, CPC, is revived. We, therefore, thin that in the Circumstances the proper course is to be set aside the order of the High Court and remit the matter to the High Court for a fresh consideration on merits in the light of the above. If the High Court decides to proceed on the premises that the suit is maintainable it should dispose of the appeal on merits by a reasoned order. Till the High Court decides the matter status quo must be maintained."
(3.) Before assessing the merits of the case in hand, it is necessary to advert to the relevant statutory provisions.;