Or.21, rule 97,99 and 101 of C.P.C – when the transferee executing court dismissed the claim petition on the ground that it has become functus officio but not on merits – Revision by way Writ is maintainable but not appeal – 2015 S.C.(2014) MSK Law Reports 5

The present appellants filed an application under Order XXI,  Rules  97,  99

and 101 of the Code of Civil  Procedure  (C.P.C.)  -

It was also put  forth  that  an  order  of  attachment  was

published in a local daily ‘Uditwani’ dated 23.10.1982  in  respect  of  the

scheduled property by the High Court of Calcutta in Suit  No.  480  of  1971

and the father of the appellants coming to know of the  same  had  filed  an

objection before the High Court which after considering  the  objection  and

taking note  of  the  right,  title  and  interest  of  the  father  of  the

appellants had released the  said  property  from  attachment  but  the  1st

respondent by suppressing all the facts got the said  schedule  of  property

attached and put the same in auction and respondent No. 2 who was set up  by

the  respondent No.1 became the purchaser of the property

Points considered

“I. Whether the transferee executing court has  jurisdiction  to  adjudicate

the present petition filed by the applicants under order XXI  rules  97,  99

and 101 C.P.C.?

II. Whether the applicants are entitled to get as relief in claim  in  their

application?”

The Executing court held that

the  transferee-executing  court   had   no

jurisdiction to entertain the petition, regard being had to  the  fact  that

the decree had been executed to the full satisfaction and an intimation  had

been sent to the Registrar of  the  Calcutta  High  Court,  the  controversy

raised could not be dealt with and no relief could be granted.

Writ filed – High court dismissed the writ holding appeal lies as it is a Decree

Whether appeal lies but not Writ ?

A

preliminary objection was raised on behalf of the  1st  respondent  that  an

order passed under Order XXI, Rule 98 to 100 of C.P.C. is a  decree  as  per

the  provisions  contained  under  Order  XXI,  Rule  103  of  C.P.C.   and,

therefore, an appeal would lie and the writ petition was  not  maintainable.

Apex court held that

In Noorduddin v. Dr. K.L. Anand[5], the executing court had rejected the
application of the appellant therein on the ground that the High Court had
already adjudicated the lis. Analysing the language employed in Rules 97,
98 and 100 to 104, the Court held:-
“Thus, the scheme of the Code clearly adumbrates that when an application
has been made under Order 21, Rule 97, the court is enjoined to adjudicate
upon the right, title and interest claimed in the property arising between
the parties to a proceeding or between the decree-holder and the person
claiming independent right, title or interest in the immovable property and
an order in that behalf be made. The determination shall be conclusive
between the parties as if it was a decree subject to right of appeal and
not a matter to be agitated by a separate suit. In other words, no other
proceedings were allowed to be taken. It has to be remembered that
preceding Civil Procedure Code Amendment Act, 1976, right of suit under
Order 21, Rule 103 of 1908 Code was available which has been now taken
away. By necessary implication, the legislature relegated the parties to an
adjudication of right, title or interest in the immovable property under
execution and finality has been accorded to it. Thus, the scheme of the
Code appears to be to put an end to the protraction of the execution and to
shorten the litigation between the parties or persons claiming right, title
and interest in the immovable property in execution.”
Elucidating further, the Court opined that adjudication before
execution is an efficacious remedy to prevent fraud, oppression, abuse of
the process of the court or miscarriage of justice. The object of law is to
meet out justice and, therefore, adjudication under Order XXI, Rules 98,
100 and 101 and its successive rules is sine qua non to a finality of the
adjudication of the right, title or interest in the immovable property
under execution.

But the executing court dismissed it –not on merits.

Revision lies

If  a

subordinate court exercises its jurisdiction not vested  in  it  by  law  or

fails to exercise the jurisdiction so vested, the said order  under  Section

115 of the Code is revisable as has been held  in  Joy  Chand  Lal  Babu  v.

Kamalaksha Chaudhury and others[9].  After  the  amendment  of

Section 115, C.P.C. w.e.f. 1.7.2002,  the  said  power  is  exercised  under

Article 227 of the Constitution as per the principle laid down in Surya  Dev

Rai (supra).  Had the executing court apart from expressing  the  view  that

it had become functus officio had adjudicated  the  issues  on  merits,  the

question would have been different, for in that event there would have  been

an adjudication.

In view of the forgoing analysis, we conclude and hold that the  High  Court

has fallen  into  error  by  opining  that  the  decision  rendered  by  the

executing court is a decree and,  therefore,  an  appeal  should  have  been

filed, and resultantly allow the appeal and set aside  the  impugned  order.

The High Court shall decide the matter as necessary  under  Article  227  of

the Constitution of India.  As a long span of  time  has  expired  we  would

request the High Court to dispose of the matter within  a  period  of  three

months.  There shall be no order as to costs. – 2015 S.C.(2014) MSK Law Reports 5.