Jharkhand High Court
Shankar Lal Gupta (Age About 47 Years) vs Smt. Rajeshwari Devi on 2 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:17550
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 511 of 2025
1. Shankar Lal Gupta (age about 47 years), S/o Late Mohan Lal Gupta
2. Vikash Kumar Gupta (age about 44 years). S/o Late Mohan Lal Gupta
Both residents of Dalpatti, Church Road, Ranchi, P.S. Previously Lower
Bazar now Daily Market, P.O. G.P.O., District- Ranchi, Jharkhand, PIN-
834001 ... Petitioners
-Versus-
Smt. Rajeshwari Devi, wife of Late Sheo Prasad Gupta, resident of Main
Road, Near Public Urdu Library, P.O. & P.S. Lower Bazar, District- Ranchi,
Jharkhand, PIN-834001 ... Opposite Party
-----
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
—–
For the Petitioners : Mr. Pratyush Kumar, Advocate
Ms. Taru Gupta, Advocate
For the Opposite Party : Mr. Amar Kumar Sinha, Advocate
—–
06/02.07.2025 Heard Mr. Pratyush Kumar, learned counsel appearing for the
petitioners and Mr. Amar Kumar Sinha, learned counsel appearing for the sole
opposite party.
2. This petition has been filed under Article 227 of the Constitution of
India for setting-aside the order dated 24.04.2025 passed by the learned Civil
Judge, Senior Division-XIV, Ranchi in Execution Case No.35/2023.
3. Mr. Pratyush Kumar, learned counsel appearing for the petitioners
submits that the plaintiff/opposite party instituted Eviction Title Suit
No.16/2007 in the Court of the learned Munsiff, Ranchi for eviction of one
Md. Isrile Khan from the suit premises being one shop room with a dimension
of 13 feet x 18 feet standing in municipal holding no. 183 within Ward No.4
of Ranchi Municipal Corporation situated at Church Road, Dalpatti Police
Station Lower Bazar, District-Ranchi with boundary as mentioned in the
schedule to the plaint. He submits that the said suit was decreed in favour of
the plaintiff/ opposite party. He submits that thereafter the decree holder filed
Execution Case No.37/2018 before the Court of the learned Civil Judge (Junior
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2025:JHHC:17550
Division)-I at Ranchi for execution of the decree dated 17.05.2018 passed in
the aforesaid eviction title suit. He further submits that in the said execution
case, a petition was filed by the petitioners herein on 16.07.2024, which was
numbered as MCA Case No.859 of 2024 under the provisions of Order XXI
Rule 97. 99, 101 read with Section 151 of the CPC, which was admitted on
the same day i.e. on 16.07.2024. He submits that the decree holder appeared
and filed her objection. He also submits that vide order dated 11.02.2025,
liberty was provided to the petitioners herein to file schedule of the property
in MCA No.859 of 2024 and the matter was further adjourned for two dates
and on 20.02.2025, MCA No.859 of 2024 was disposed of as rejected with
liberty to the petitioners to file afresh if they wish. He submits that however
the order dated 11.02.2025 was already complied with by the petitioners
herein by way of filing MCA No.129/2025, which was filed on 20.02.2025 itself.
He submits that the petitioners were under impression that the matter was
adjourned, however, it was disposed of as rejected. He submits that
thereafter recall petition has been filed on 25.02.2025 for recalling the order
dated 20.02.2025. He submits that vide order dated 03.03.2025, learned
Court has been pleased to recall the order dated 20.02.2025 and revived MCA
No.859/2024 and MCA No.129/2025. He submits that however vide order
dated 21.03.2025, the learned Court has again disposed of MCA No.129/2025
on the pretext that MCA No.859/2024 is already disposed of. He submits that
again a petition dated 03.04.2025 was filed before the learned Court and by
the impugned order dated 24.04.2025, the learned Court has further rejected
the said petition and declined to recall the order dated 21.03.2025. He
submits that the said MCAs were already revived in view of the recall order
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dated 03.03.2025 and in spite of that, the learned Court has further disposed
of those petitions. He submits that once a petition is filed under Order XXI
Rule 97 of the CPC, the same is required to be decided by the learned
Executing Court. To buttress this argument, he relied upon the judgment
passed by the Hon’ble Supreme Court in the case of Sameer Singh and
another v. Abdul Rab and others, reported in (2015) 1 SCC 379. He
refers paragraphs 25 and 26 of the said judgment, which read as under:
“25. At this juncture, we may refer with profit to the
pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad
Jaiswal, wherein a two-Judge Bench scanning the anatomy
of the rules came to hold that:-
“… a stranger to the decree who claims an independent
right, title and interest in the decretal property can offer
his resistance before getting actually dispossessed. He
can equally agitate his grievance and claim for
adjudication of his independent right, title and interest
in the decretal property even after losing possession as
per Order XXI, Rule 99. Order XXI, Rule 97 deals with
a stage which is prior to the actual execution of the
decree for possession wherein the grievance of the
obstructionist can be adjudicated upon before actual
delivery of possession to the decree-holder. While Order
XXI, Rule 99 on the other hand deals with the
subsequent stage in the execution proceedings where
a stranger claiming any right, title and interest in the
decretal property might have got actually dispossessed
and claims restoration of possession on adjudication of
his independent right, title and interest dehors the
interest of the judgment-debtor. Both these types
[pic]of enquiries in connection with the right, title and
interest of a stranger to the decree are clearly
contemplated by the aforesaid scheme of Order XXI
and it is not as if that such a stranger to the decree can
come in the picture only at the final stage after losing
the possession and not before it if he is vigilant enough
to raise his objection and obstruction before the
warrant for possession gets actually executed against
him.”
26. The aforesaid authorities clearly spell out that the
court has the authority to adjudicate all the questions
pertaining to right, title or interest in the property arising
between the parties. It also includes the claim of a stranger
who apprehends dispossession or has already been
dispossessed from the immovable property. The self-
contained Code, as has been emphasised by this Court,
enjoins the executing court to adjudicate the lis and the
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purpose is to avoid multiplicity of proceedings. It is also so
because prior to 1976 amendment the grievance was
required to be agitated by filing a suit but after the
amendment the entire enquiry has to be conducted by the
executing court. Order XXI, Rule 101 provides for the
determination of necessary issues. Rule 103 clearly stipulates
that when an application is adjudicated upon under Rule 98
or Rule 100 the said order shall have the same force as if it
were a decree. Thus, it is a deemed decree. If a Court
declines to adjudicate on the ground that it does not have
jurisdiction, the said order cannot earn the status of a decree.
If an executing court only expresses its inability to adjudicate
by stating that it lacks jurisdiction, then the status of the
order has to be different. In the instant case the executing
court has expressed an opinion that it has become functus
officio and hence, it cannot initiate or launch any enquiry. The
appellants had invoked the jurisdiction of the High Court
under Article 227 of the Constitution assailing the order
passed by the executing court on the foundation that it had
failed to exercise the jurisdiction vested in it. The appellants
had approached the High Court as per the dictum laid down
by this Court in Surya Dev Rai v. Ram Chander Rai.”
Relying on the above judgment, learned counsel appearing for the
petitioners submits that in that case, the petition was rejected without
adjudicating the same and in view of that, a petition under Article 227 of the
Constitution of India was preferred, which was rejected by the High Court
and pursuant to that the matter travelled upto the Hon’ble Supreme Court
and the Hon’ble Supreme Court has been pleased to set-aside the order of
the High Court and restore the petition filed under Order XXI Rule 97 of the
CPC before the learned Court and directed to decide the same. He submits
that identical is the situation in the present case and in view of that, the
impugned order may kindly be set-aside and direction may kindly be issued
to the learned Court to decide the petition filed under Order XXI Rule 97 of
the CPC, in which the objection has already been filed by the decree holder.
4. On the other hand, Mr. Amar Kumar Sinha, learned counsel appearing
for the sole opposite party submits that there is no illegality in the impugned
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order and the learned Court has rightly passed the order. He submits that
frivolous objection filed before the learned Executing Court is required to be
rejected by the learned Executing Court.
5. In view of the above submissions of the learned counsel for the parties,
the Court has gone through the materials on record and finds that the petition
filed by the petitioners under Order XXI Rule 97 read with other Rules has
been admitted by the learned Court on 16.07.2024 i.e. on the even date
when such petition was filed. While hearing the said petition, the learned
Court has found that the schedule of the properties is not disclosed in that
petition and in view of that, direction was issued on 11.02.2025 to clarify
the ambiguity and, thereafter, the matter was adjourned for 15.02.2025 and
17.02.2025 and the learned Court vide order dated 20.02.2025 has been
pleased to reject the MCA No.859/2024 with liberty to the petitioners to file
afresh, if they wish. The petition dated 25.02.2025 filed by the petitioners
for recalling the order dated 20.02.2025 is on the record, contained in
Annexure-9 to the petition and along with that petition, documents have been
annexed which suggest that amendment petition being MCA Case No.129 of
2025 was filed on 20.02.2025 itself, however, it appears that it was not
placed before the learned Court and in view of that, the order dated
20.02.2025 was passed. The recall petition dated 25.02.2025 was allowed by
the learned Court vide order dated 03.03.2025. Further, vide order dated
21.03.2025, the learned Court has disposed of MCA No.129/2025 on the
premises that MCA No.859/2024 is already disposed of as rejected.
Subsequently, further petition was filed on 03.04.2025 and by the impugned
order dated 24.04.2025, the learned Court has rejected the said petition and
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declined to recall the order dated 21.03.2025. In these backgrounds, it
appears that the petition filed under Order XXI Rule 97 along with other Rules
was not adjudicated by the learned Court on merit, however, objection to that
has already been filed by the decree holder. The learned Court has recalled
the order dated 20.02.2025 and the said MCA case was already revived and
by the subsequent orders, the learned Court simply disposed of both the
MCAs, which clearly suggests that the case was not adjudicated on merit.
6. The CPC must be regarded as it is a procedure something designed to
facilitate justice and further its ends, not a penal enactment for punishment
and penalties and our laws of procedure are grounded on a principle of
natural justice which requires that men should not be condemned unheard.
Too technical a construction of sections that leaves no room for reasonable
elasticity of interpretation. This aspect of the matter has been considered by
the Hon’ble Supreme Court in the case of Siddalingayya v. Gurulingappa,
reported in (2017) 9 SCC 447, wherein, it has been held in paragraphs 12
to 17 of the said judgment, which read as under:
“12. This case reminds us of the apt observations of a
great Judge of this Court (Vivian Bose, J.). His Lordship,
speaking for the Bench, in his inimitable style of writing said
in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 as
under: (AIR p. 429, paras 16-17)
“16. … a Code of Procedure must be regarded as such.
It is procedure something designed to facilitate justice
and further its ends: not a penal enactment for
punishment and penalties; not a thing designed to trip
people up. Too technical a construction of sections that
leaves no room for reasonable elasticity of
interpretation should therefore be guarded against
(provided always that justice is done to both sides) lest
the very means designed for the furtherance of justice
be used to frustrate it.
17. … our laws of procedure are grounded on a principle
of natural justice which requires that men should not
be condemned unheard, that decisions should not be
reached behind their backs, that proceedings that-6- C.M.P. No. 511 of 2025
2025:JHHC:17550affect their lives and property should not continue in
their absence and that they should not be precluded
from participating in them. Of course, there must be
exceptions and where they are clearly defined they
must be given effect to. But taken by and large, and
subject to that proviso, our laws of procedure should
be construed, wherever that is reasonably possible, in
the light of that principle.”
13. Keeping the aforementioned observations in mind and
examining the facts of the case at hand, we are of the
considered opinion that the High Court made no mistake in
allowing the respondents’ appeal and remanding the suit to
the trial court for fresh trial on merits after affording an
opportunity to the respondent-defendants to file their
written statement to enable them to contest the suit on
merits.
14. It is true that the time was granted to the defendants
to file written statement initially before closing their right to
file written statement, yet in our view, the trial court instead
of closing their right to file written statement should have
granted some time to the defendants subject to payment of
reasonable amount of cost to the plaintiff to compensate the
inconvenience caused to the plaintiff. The High Court was,
therefore, right in imposing a cost of Rs 11,250 on the
defendants to be paid to the plaintiff as a precondition to file
the written statement within the extended time granted by
the High Court.
15. In our view, here comes the application of observations
of Vivian Bose, J. when his Lordship said:
“16. … Too technical a construction of a section that
leaves no room for reasonable elasticity of
interpretation should therefore be guarded against
(provided always that justice is done to both sides) lest
the very means designed for the furtherance of justice
be used to frustrate it.
17. … our laws of procedure are grounded on a
principle of natural justice which requires that men
should not be condemned unheard, that decisions
should not be reached behind their backs, that
proceedings that affect their lives and property should
not continue in their absence and that they should not
be precluded from participating in them.”
16. Having observed this, his Lordship cautioned:
“17. … Of course there must be exceptions too and
where they are clearly defined they must be given
effect to.”
and finally his Lordship concluded observing: (AIR p. 429,
para 17)
“17. … But taken by and large, and subject to that
proviso, our laws of procedure should be construed,
wherever that is reasonably possible, in the light of
that principle.”
17. The approach of the High Court, which resulted in
remand of the case to the trial court for deciding the suit on
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merits after affording full opportunity to the defendants to
contest the case and, at the same time, making it obligatory
to pay cost of Rs 11,250 to the plaintiff was, in our view, in
tune with the aforementioned observations and did
substantial justice to both the parties.”
7. In view of the above discussions and further considering two
judgments passed by the Hon’ble Supreme Court in the cases of Sameer
Singh and another v. Abdul Rab and others and Siddalingayya v.
Gurulingappa (supra), this Court comes to a conclusion that the impugned
order dated 24.04.2025 passed by the learned Court is not in accordance with
law and, as such, the impugned order dated 24.04.2025 passed by the
learned Civil Judge, Senior Division-XIV, Ranchi in Execution Case No.35/2023
is, hereby, set-aside.
8. MCA No.859/2024 and MCA No.129/2025 are already revived in light
of the recall order dated 03.03.2025 and in view of that, the learned Court
will decide the said MCAs in accordance with law after providing opportunity
of hearing to all the sides in view of the fact that it is well-settled that once
the petition under Order XXI Rule 97 of the CPC is filed before the Executing
Court even by the stranger, that is required to be decided on merit, which has
not been done in the case in hand. Since the case is arising out of the
execution case, the learned Court will take all endeavours to decide the said
MCAs at the earliest. The petitioners herein and the sole opposite party will
co-operate before the Executing Court to decide the said MCAs.
9. Accordingly, this petition is disposed of in above terms.
10. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
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