# Abdul Hasan v. First A.D.J., Pratapgarh & Ors

- **Citation:** (2024) 7 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-05
- **Case number:** Matters Under Article 227 No. 11249 of 2019
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-hasan-v-first-a-d-j-pratapgarh-ors-52336
- **Pages:** 9

## Headnote

Sri Akshat Kumar, Sri Ankit Pande, Sri
Malkhan
Singh,
Sri
Sanjay
Kumar
Srivastava

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
7 All. Abdul Hasan Vs. First A.D.J., Pratapgarh & Ors.
903
Code of Civil Procedure, 1908 - Order 21
Rule 97 - Resistance or obstruction to
possession of immovable property - If a
person resists or obstructs the holder or
purchaser of a decree for the possession
of immovable property, they can apply to
the court, and the court will adjudicate
the application in accordance with the
provisions - Rule 99 - Dispossession by
Decree - holder or purchaser, Rule 100 -
Order to be passed upon application
complaining
of
dispossession,
The
Transfer of Property Act 1882 - Section
105 ,111(g). (Para -21)

Maintainability of the objections preferred by the
person who claims to be in possession of the
disputed property - Court partially decreed
plaintiff's ownership of property - not eviction
relief - plaintiff initiated second round of
litigation after giving notice to tenants - suit was
initially dismissed but appealed - order reached
finality - third leg of litigation began with
execution case - Petitioner Files Objections
under Order 21 Rule 97 CPC - Disputed property
used by religious sect - Applicants claim to be
managers - Deed obtained by decree holder is
collusive and unenforceable . (Para -15, 19)

HELD:- Petitioner being an interested party in
the suit being in possession of the decreed
property, has right to raise his objections under
Order 21 Rule 97 CPC before the execution of
the decree, which ought to have been duly
considered by the trial Court. Matter remitted to
trial Court to pass fresh orders on application
under Order 21 Rule 97 CPC preferred by
petitioner.(Para - 25)

Petition allowed. (E-7)

List of Cases cited:

Jini Dhanrajgir & anr. Vs Shibu Mathew & anr.,
2023 SCC OnLine SC 643

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES
 24. As such, it could be seen that
the provisions in Order XXVI Rule 6 (a)
and (b) are analogous to the provisions in
clauses (a) and (d) of Order VII Rule 11 of
the CPC.

 25. It is a settled position of law
that, for considering objections under
Order VII Rule 11 (a) and (d) of the CPC,
what needs to be looked into is only the
averments made in the plaint. It is well
settled that if the averments made in
theplaint are germane then the pleas
taken by the defendant inthe written
statement would be wholly irrelevant at
this stage. Reference in this respect could
be made to the judgments of this Court in
the cases of Saleem Bhai and Others v.
State of Maharashtra and Others14,
Sopan Sukhdeo Sable and Others v.
Assistant Charity Commissioner and
Others15, Bhau Ram v. Janak Singh and
Others16 and Chhotanben and Another v.
Kirtibhai Jalkrushnabhai Thakkar and
Others17.

 26. In view of the word 'shall'
used in the provisions, a duty is cast on the
court to examine as to whether the plaint is
hit by any of the infirmities provided in the
six clauses of Order VII Rule 11 of the
CPC. A duty is cast on the court to reject
the plaint even without the intervention of
the defendant. Reference in this respect
could be made to the judgment of this
Court in the case of Sopan Sukhdeo Sable
(supra).

 27. It is further settled that the
averments made in the plaint have to be
read as a whole and not in isolation.
Reference in this respect could be made
to the judgment of this Court in the case
of
Kirtibhai
Jalkrushnabhai
Thakkar
(supra)."
20. The Hon'ble Apex Court
repeatedly taken the view that while
deciding application under Order VII Rule
11 CPC only averment made in the plaint
has to be seen and any defence cannot be
taken into consideration.

21. In the present case, in light of
discussion
made
hereinabove,
it
is
apparently clear that from the perusal of
averment made in the plaint there cannot be
said to be bar of any provision of law for
filing this suit, therefore I found no
illegality or infirmity in the impugned
orders dated 21.04.2022 & 06.01.2024.

22. Petition lacks merit and
accordingly dismissed.

23. No order as to costs.
----------
(2024) 7 ILRA 902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Matters Under Article 227 No. 11249 of 2019

Abdul Hasan ...Petitioner
Versus
First A.D.J., Pratapgarh & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Shailesh Kumar Srivastava

Counsel for the Respondents:
Sri Akshat Kumar, Sri Ankit Pande, Sri
Malkhan
Singh,
Sri
Sanjay
Kumar
Srivastava

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
7 All. Abdul Hasan Vs. First A.D.J., Pratapgarh & Ors.
903
Code of Civil Procedure, 1908 - Order 21
Rule 97 - Resistance or obstruction to
possession of immovable property - If a
person resists or obstructs the holder or
purchaser of a decree for the possession
of immovable property, they can apply to
the court, and the court will adjudicate
the application in accordance with the
provisions - Rule 99 - Dispossession by
Decree - holder or purchaser, Rule 100 -
Order to be passed upon application
complaining
of
dispossession,
The
Transfer of Property Act 1882 - Section
105 ,111(g). (Para -21)

Maintainability of the objections preferred by the
person who claims to be in possession of the
disputed property - Court partially decreed
plaintiff's ownership of property - not eviction
relief - plaintiff initiated second round of
litigation after giving notice to tenants - suit was
initially dismissed but appealed - order reached
finality - third leg of litigation began with
execution case - Petitioner Files Objections
under Order 21 Rule 97 CPC - Disputed property
used by religious sect - Applicants claim to be
managers - Deed obtained by decree holder is
collusive and unenforceable . (Para -15, 19)

HELD:- Petitioner being an interested party in
the suit being in possession of the decreed
property, has right to raise his objections under
Order 21 Rule 97 CPC before the execution of
the decree, which ought to have been duly
considered by the trial Court. Matter remitted to
trial Court to pass fresh orders on application
under Order 21 Rule 97 CPC preferred by
petitioner.(Para - 25)

Petition allowed. (E-7)

List of Cases cited:

Jini Dhanrajgir & anr. Vs Shibu Mathew & anr.,
2023 SCC OnLine SC 643

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Shailesh Kumar
Srivastava,
learned
counsel
for
the
petitioner as well as Sri Sanjay Kumar
Srivastava, learned counsel appearing for
the respondents.

2. The petitioner by means of the
present writ petition has challenge order
dated 26.02.2019 passed by the 1st
Additional District Judge Pratapgarh in
Civil Revision No. 60 of 2015 (Abdul
Hasan and others versus Shrimati Shobha
Rani) as well as the order dated 31/07/2015
passed by the Additional Civil Judge
(Junior Division) Pratapgarh in Execution
Suit No. 23 of 1980 (Bismilla Begam
versus the Ramraj Kunwari)

3. The brief facts of the case are
that Raja Jagat Ranvir Bahadur Singh, a
Taluqdar of Kaithola Estate, was the owner
of the disputed property and had adopted
Raja Jagat Ranvir Mahesh Prasad Singh by
means of an adoption deed. He further
executed will on 27/12/1945 in favour of
Raja Jagat Ranvir Mahesh Prasad Singh
and gave all his property to him. He
executed a deed dated 29-05-1935 in
favour of his wife Rani Dharam Raj Kuer
respondent No. 9 in respect of this house
and some other property. It has been
submitted that under this deed Rani
Dharam Raj Kuer was granted a heritable
but non-transferable lease so far as the
house in dispute is concerned and as such
under the terms of this grant she could only
remain in possession of the house but could
not make any temporary or permanent
transfer thereof. The Raja died on 09-091949. Hence both as an adopted son and as
a legatee he was owner of the interest
reserved by the Raja in the said house
under the deed dated 29-05-1935. Smt.
Bimlawati Kumari Devi was the daughter
of Raja and had claimed the property
through Rani Dharam Raj Kuer by
inheritance. The said property was sold by
Rani Dharam Raj Kuer by a registered sale
904 INDIAN LAW REPORTS ALLAHABAD SERIES
deed
in
favour
of
Abdul
Rahman
05/01/1960.

4. Raja Jagat Ranvir Mahesh
Prasad came to know about the sale deed
filed a suit before the civil judge Pratapgarh
for cancellation of Sale deed dated
05/01/1960 executed in favour of Abdul
Rehman and also for possession after their
ejectment. The suit was registered as
Regular Suit No. 17 of 1960 where it was
stated that Rani Dharam Raj Kuer has been
granted only lifetime interest and she has
not been given right of transfer by sale of
the property in question as such the sale
deed is without any authority of law.

5. The suit filed by Raja Jagat
Ranvir Mahesh Prasad was decreed by the
Munsif Magistrate and an appeal was filed
before the District Judge by Abdul Rahman
which was allowed and the judgement and
decree passed by the Munsif Magistrate
was set aside. A second appeal was filed
against the judgement of the District Judge
before this court being Second Appeal No.
372 of 1963 which was allowed and the
order passed by the District Judge was set
aside affirming the judgement and decree
passed
by
the
Munsiff
Magistrate,
Pratapgarh on 29/08/1972.

6. The High Court while allowing
the Second Appeal recorded the following
fin dings after using the documents placed
before them:-

 a. With regard to the validity of
the adoption deed it was held- Besides
being an adopted son of the Raja, the
plaintiff is also Ms legatee. From a perusal
of this will it is dear that whatever interest
had been retained by the Raja under the
document dated 29-5-1935 in respect of the
house in suit was covered by this will and it
had not been excluded therefrom. In fact
the Raja tried even to whittle down the
extent of the grant made under that
document which he could not do. That is
not an issue before us. The point worth
noticing is that whatever interest was
retained by the Raja in the house in suit
under the document dated 29-5-1935 was
not excluded from the purview of the will in
favour of the plaintiff. So the plaintiff on
both these grounds is entitled to step into
the shoes of the Raja and safeguard his
interest, if any, in the house in suit reserved
under the deed dated 29-5-1935.

 b. The nature of gift deed made in
favour Rani Dharam Raj Kuer it was also
really considered and it was held- In my
opinion, not only the document has been
specifically classified as a permanent
heritable and non-transferable lease but
the incidents of the transfer as mentioned in
the document also make out a clear case of
lease and not an absolute gift. The grantor
had reserved a right to receive Rs. 5/- per
year from the grantee as Malikana in
respect of the house in suit. This periodical
payment described as Malikana is nothing
but an amount of money to be paid
periodically to the transferor by the transferee
within the meaning of Section 105 of the
Transfer of Property Act. The use of the word
'Malikana' is not conclusive to lead to an
inference that it was an absolute transfer of
the entire proprietary rights. At one place the
grantor had also stated that the object of this
grant was to provide maintenance to the
grantee who was his own wife. I agree with the
courts below that the transaction evidenced by
this document dated 29-5-1935 so far as the
house in suit is concerned is only a perpetual
heritable but a non-transferable lease.

 c. Considering the validity of the
lease deed the High Court held- So, on the
7 All. Abdul Hasan Vs. First A.D.J., Pratapgarh & Ors.
905
facts and circumstances of this case and the
close relationship existing between the
grantor and the grantee, it cannot be said
that the restriction against alienation was
only a surplusage or a redundant condition
which in the absence of a right of re-entry
could not confer any benefit on the lessor
in any event. In my opinion, the benefit of
this
restriction
could
under
certain
circumstances be available to the lessor or
his own heirs. As such, this condition will
be deemed to be valid under Section 10.
That being so, the lessee (respondent No. 9)
had no authority to make the transfer in
favour of the predecessor of respondents
Nos. 1 to 8 under the impugned sale deed
dated 5-1-1960, and this sale deed shall be
deemed to be void against the appellant
who is successor-in-interest of the lessor.

 d. With regard to the prayer
seeking eviction of the defendant from the
suit property it was held- So long as the
lease in favour of respondent No. 9 is not
determined by a notice under Section
111(g) of the Transfer of Property Act the
plaintiff is not entitled to immediate
possession. A lease under this provision
can be determined on account of the breach
of a condition which provides a right of reentry for such breach. This condition is not
available to the plaintiff-appellant. It also
provides that if the lessee renounces his
character as lessee and denies the title of
the lessor, the lease may be forfeited.
Whether or not this condition is available
to the plaintiff-appellant, does not arise for
our consideration at this stage. All that can
be said is that the plaintiff is not in this suit
entitled to eject respondent No. 9 so long as
her lessee rights are not determined.

7. The High Court in second
appeal held that the adoption deed in favour
of Raja Jagat Ranvir Mahesh Prasad Singh
was valid, and the gift in favour of the Rani
Dharam Raj Kuer was without any right of
transfer, and she not having any right of
transfer could not have executed a valid
sale deed, which accordingly was held to
be void. The only issue which was decided
against the plaintiff in favour of the
defendant against the plaintiff even in
favour of the defendant was the aspect of
eviction inasmuch as what the aspect of
eviction in as much as the Court was of the
view that no notice under the court was of
the view that no notice under Section 111
(g) of the Transfer of Property Act was not
given and accordingly the lease was not
determined and accordingly the plaintiff
was not entitled to immediate possession.

8. After the judgement of the High
Court, notice under Section 111 (g) of the
Transfer of Property Act was given to the
petitioner and the suit for eviction was filed
before the Munsif Magistrate which was
registered as regular suit No. 170 of 1973.
The said suit was dismissed as time-barred
by order dated 21/07/1978. The appeal
against the aforesaid judgement was
allowed on the basis of compromise on
26/03/1980 and the judgement of the trial
Court dated 21/07/1978 was set aside.

9. On the basis of the judgement
and decree, Execution Case No. 23 of 1980
was filed before the Additional Civil Judge
(Junior division), Pratapgarh the executing
Court passed order for execution of the
decree on 11/09/2009 where objections
were filed by one Rahmat Ulla and Sakina
Bano which were rejected. Against the
rejection of the rejection they filed a
revision
before
the
District
Judge
Pratapgarh which was also dismissed on
24/10/2009. During the pendency of the
execution case Raja Jagat Ranvir Mahesh
Prasadh Singh executed a sale deed of the
906 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed house in favour of Smt Bismillah
Begum and Smt Meherunnisa Bano on
14/03/1980
and
subsequently
on
16/12/1980 Raja Jagat Ranvir Mahesh
Prasadh Singh along with Smt Bismillah
Begum
and
Smt
Meherunnisa
Bano
transferred house No. 105 Gha and the
pertinent land through registered sale deed
dated 16/12/1980 in favour of Smt Shobha
Rani. It was further submitted that in
pursuance to the execution of decree the
Amin delivered the possession of the
maximum part of house No. 105 Gha along
with the pertinent land to Smt Bismillah
Begum and the same was subsequently
delivered to Shobha Rani on the basis of
the sale deed.

10. The execution case proceeded
for execution of the decree for the
remaining part of the disputed property,
when fresh objections were filed by the
petitioner and 2 other persons including
State Government and one Lalji. The
objections raised by the petitioner were
considered and rejected on 30/04/2015 in
his absence and accordingly a recall
application was moved on 08/05/2015. The
recall application as well as objection of the
other
persons were
disposed of
on
29/05/2015.

11. Against the order dated
30/04/2015 and 29/05/2015 the petitioner
preferred a revision before the Additional
District Judge, Partapgarh which was
numbered Revision No. 60 of 2015 and has
been rejected by means of order dated
26/02/2019 which has been assailed in the
present writ petition along with the order
dated 31/07/2015.

12. It had been submitted by
counsel
for
the
petitioner
that
the
objections raised by the petitioners in the
execution proceedings have been rejected
in the most illegal and arbitrary manner and
contrary to the provisions laid down under
Order 21 Rule 97, 99 and 100 CPC. It was
submitted that the objections could have
been decided only after permitting the
petitioner to lead evidence and by not doing
so the exhibiting court has committed grave
illegality and consequently the aforesaid
order deserves to be set aside.

13. Because of the respondent on
the other hand has urged that all the issues
in the dispute have been adequately
considered and decided. It was stated that
this Court in 2nd appeal has already
decreed the suit where Raja Jagat Ranvir
Mahesh Prasad was held to be the legatee
of the original tenure holder by means of a
valid will and further that his wife Rani
Dharam Raj Kuer did not have any power
to alienate the said property which was
given on lease to her for her lifetime, and
the other opposite parties having purchased
the property from Rani Dharam Raj Kuer
did not acquire any right or title from her.
The objections filed by the petitioner in the
execution proceedings were rejected by
means of the order dated 30/04/2015 in his
absence on the ground that the same did not
have any merit. The application for recall
of the order dated 30/04/2015 was also
rejected on the 29/05/2015 where the
reason for non-appearance on 30/04/2015
could not be satisfactorily explained, and
the court considered that the matter is 25
years old and its execution is being
deliberately delayed and therefore rejected
the
application
of
recall
as
being
misconceived and also the ground that no
satisfactory explanation have been given
for non appearance of the petitioner on
30/05/2015. It was further submitted that in
the order passed in revision the revisional
court found that the applications of the
7 All. Abdul Hasan Vs. First A.D.J., Pratapgarh & Ors.
907
petitioner
been
rejected
after
due
application of mind and there is no error in
the same and consequently there was no
requirement
for
interference
of
the
revisional court.

14. I have heard the counsel for the
parties and perused the record.

15. In the present dispute Raja
Jagat Ranvir Mahesh Prasadh Singh had
filed an Original Suit No. 170 of 1973
against Rani Dharam Raj Kuer which was
decreed by this Court by means of order
dated 29/08/1972 in 2nd Appeal No. 372 of
1963. The rights in favour of the plaintiff
crystallized, and the suit was partially
decreed to the extent that the plaintiff was
declared to be the owner of the disputed
property, but the relief with regard to eviction
was not allowed as no proper notice as
provided for under section 111g of the
Transfer of Property Act was not given to the
tenant. Accordingly, after giving notice to the
occupants of the disputed property the 2nd
round of litigation with regard to the eviction
of the occupants/tenants commenced. The
suit was initially dismissed by the Munsiff
Magistrate on 21/07/1978, but the appeal
against the said order was allowed on the
basis of a compromise on 26/03/1980. The
order dated 26/03/1980 attained finality as no
appeal or revision was preferred against the
same. The 3rd leg of litigation commenced
when the execution case No. 23 of 1980 was
filed
for
executing
the
decree
dated
26/03/1980 before the Additional Civil Judge
(Junior division), Sadar.

16. Objections were filed by the
petitioner under Order 21 Rule 97 CPC
stating that the disputed property was being
used by a particular religious sect and the
said property is a "wakf by user" of which
the applicant claimed to be the manager.
He stated that the decree obtained by the
decree holder was collusive and not
enforceable.

17. The said objections were heard
on
30/04/2015
on
which
date
the
petitioner/applicant was not present, and the
court after perusing the objections filed by the
petitioner rejected the same is being without
any merits. The petitioner subsequently moved
an application for recall stating that while
coming to the Court he met with an accident
and consequently he could not inform. His
counsel also did not appear and his objections
were rejected ex-parte. Recall application was
objected to by the decree holder, who stated
that the averments made in the said
applications are false and misconceived and
the only effort of the applicant is to delay the
execution proceedings and even otherwise
there is no document to support the alibi made
by the applicant.

18. The only ground raised by the
petitioner assailing the aforesaid orders is
that the trial court should have permitted
the petitioner to adduce evidence as
provided for under order 21 Rule 97 CPC
so
that
the
petitioner
could
have
demonstrated that he has a better title than
the decree holder so as to prevent the
decree from being executed.

19. In this regard the question
regarding maintainability of the objections
preferred by the person who claims to be in
possession
of
the
disputed
property
deserves to be considered 1st. Order 21
Rule 97 provides as under:-

 "97. Resistance or obstruction to
possession of immovable property.-

 (1) Where the holder of a decree
for the possession of immovable property
908 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 (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."

20. It is also noticed that there was
no application by the decree holder before
the
executing
Court
seeking
further
direction with regard to petitioner who was
resisting the execution of the decree. He
has straight away moved an application
under Order 21 Rule 97 CPC.

21. It has been submitted that
according to the provisions of Order 21
Rule 97 CPC, word "any person" would
include the third party against whom the
decree is sought to be executed and
consequently submitted that application
was
maintainable
at
the
behest
of
petitioner. It was stated that the rule is
merely permissive and not mandatory and
there is no limitation that only decree
holder or auction purchaser can move
appropriate application under Order 21
Rule 97 CPC and the moment the thirdparty files objections to the execution, the
Court should stay the execution till rights
claimed by the third party are decided.

22. Learned counsel for the
respondent on the other hand has opposed
the arguments made by the petitioner. It has
been submitted that under Order21 Rule 97
CPC it is only the decree holder who is
entitled to make an application in case
where execution proceedings are resisted
by any person. It was further stated that the
petitioner being third party cannot take
shelter of provisions of Order 21 Rule 97
CPC and it is only when he is dispossessed,
he can approach the Court for restoring his
possession as provided under Order 21
Rule 99 CPC.

23. With regard to maintainability
of application under Order 21 Rule 97 CPC
the issue has been settled by the Hon'ble
Apex Court in the case of Jini Dhanrajgir
and Another vs Shibu Mathew and
Another, 2023 SCC OnLine SC 643 has
held :-.

 "16. In our considered view, for
more reason than one, relief claimed by the
Appellants ought to be declined.

 17. Section 47 of the CPC, being
one of the most important provisions
relating to execution of decrees, mandates
that the court executing the decree shall
determine all questions arising between the
parties to the suit or their representatives
in relation to the execution, discharge, or
satisfaction of the decree and that such
questions may not be adjudicated in a
separate
suit.
What
is
intended
by
conferring exclusive jurisdiction on the
executing court is to prevent needless and
unnecessary litigation and to achieve
speedy disposal of the questions arising for
discussion in relation to the execution,
discharge or satisfaction of the decree.
Should there be any resistance offered or
obstruction raised impeding due execution
of a decree made by a court of competent
jurisdiction, the provisions of Rules 97, 101
and 98 of Order XXI enable the executing
court to adjudicate the inter se claims of
the decree-holder and the third parties in
the execution proceedings themselves to
avoid prolongation of litigation by driving
7 All. Abdul Hasan Vs. First A.D.J., Pratapgarh & Ors.
909
the parties to institute independent suits.
No wonder, the provisions contained in
Rules 97 to 106 of Order XXI of the CPC
under the sub-heading "Resistance to
delivery of possession to decree-holder or
purchaser" have been held by this Court to
be a complete code in itself in Brahmdeo
Chaudhary (supra) as well as in a decision
of recent origin in Asgar v. Mohan Verma.
In the latter decision, it has been noted that
Rules 97 to 103 of Order XXI provide the
sole remedy both to parties to a suit as well
as to a stranger to the decree put to
execution.

 18.
In
Bhanwar
Lal
v.
Satyanarain , this Court held that when any
person, whether claiming derivative title
from the judgment-debtor or sets up his
own right, title or interest de hors the
judgment debtor, the executing court whilst
executing the decree, in addition to the
power under Rule 35(3), is empowered to
conduct an enquiry whether the obstruction
by that person is legal or not.

19. This Court in Noorduddin v.
Dr. K.L. Anand reiterated that the
executing court was bound to adjudicate
the claim of an obstructionist and to record
a finding allowing or rejecting the claim
which was laid before the executing court,
the person being neither a party to the
earlier proceedings nor the decree being
passed against him.

 20. Yet again, in Babulal v. Raj
Kumar, this Court after setting aside the
order impugned held that a determination
is required to be conducted under Order
XXI Rule 98 before removal of the
obstruction caused by the objector and a
finding is required to be recorded in that
regard. It was also held that the executing
court was required to determine the
question relating to when the appellants
had objected to the execution of the decree
as against those appellants who were not
parties
to
the
decree
for
specific
performance.

 21. The decision in Brahmdeo
Chaudhary
(supra)
cited
by
Mr.
Chitambaresh, is also to the same effect.

 22. Considering the scheme of
Order XXI Rules 97 to 106, this Court in
Silverline Forum Pvt. Ltd. v. Rajiv Trust
found it difficult to agree with the High
Court that resistance or obstruction made
by a third party to the decree put to
execution cannot be gone into under Order
XXI Rule 97. Referring to Rules 97 to 106,
this Court further held that they were
intended to deal with every sort of
resistance or obstruction raised by any
person and that Rule 97(2) made it
incumbent on the court to adjudicate upon
such complaint in accordance with the
procedure laid down. This Court also
proceeded to observe:

 "It is clear that executing court
can decide whether the resistor or
obstructer is a person bound by the decree
and he refuses to vacate the property. That
question also squarely falls within the
adjudicatory
process
contemplated
in
Order 21, Rule 97(2) of the Code. The
adjudication. mentioned therein need not
necessarily involve a detailed enquiry or
collection of evidence. Court can make the
adjudication on admitted facts or even on
the averments made by the resistor. Of
course, the Court can direct the parties to
adduce evidence for such determination if
the Court deems it necessary".

23. The long line of precedents
notwithstanding, it is indeed true that in
910 INDIAN LAW REPORTS ALLAHABAD SERIES
terms of the ordainment of Rule 102 of
Order XXI, Rules 98 and 100 thereof
would not apply to resistance or obstruction
in execution of a decree for the possession
of immovable property by a person to
whom the judgment-debtor has transferred
the property after the institution of the suit
in which the decree was passed."

24. The 1st question which arises
for determination is with regard to the
validity of the order dated 30/04/2015 and
29/05/2015 whereby the application filed
by the petitioner was dismissed and further
the recall application was also rejected. The
petitioner stated that on 30/04/2015 he had
met with an accident and consequently
could not reach the Court nor inform his
counsel and consequently his application
under Order 21 Rule 97 was rejected. The
trial Court was of the view that the
proceedings have been pending for 35
years, and also that he had perused the
record where on merits no case for
interference was made out and accordingly
rejected the application. From perusal of the
above order it is clear that the application for
recall was rejected without considering the
grounds on which it was filed. This court
treats the said rejection to be merely on
account of want of prosecution as no reasons
have been either considered or stated for
rejecting the said application on merits. The
recall application was filed soon thereafter,
which also was rejected affirming the order
dated 30/04/2015. Considering the reasons
given by the petitioner for his nonappearance
on
30/04/2015,
and
recall
application moved immediately thereafter
clearly indicates that the non-appearance was
not intentional. The Court is satisfied that
reasons for non appearance were adequately
explained by the petitioner and hence the exparte order ought to have been recalled.
Though the contesting respondent had
opposed the said application as being false
and misconceived, but no document or
evidence was filed to controvert the facts
stated in the application preferred by the
petitioner, and accordingly both the orders
are therefore, arbitrary and accordingly set
aside and the application for recall is allowed.

25. This Court after perusal of the
facts of the case concludes that the petitioner
being an interested party in the suit being in
possession of the decreed property, has right
to raise his objections under Order 21 Rule
97 CPC before the execution of the decree,
which ought to have been duly considered by
the trial Court.

26. Accordingly, the writ petition is
allowed and the matter is remitted to the trial
Court to pass fresh orders on the application
under Order 21 Rule 97 CPC preferred by the
petitioner. Considering the fact that much
time has lapsed due to pendency of the
proceedings, the trial Court is directed to
consider
and
decide
the
application
expeditiously, say within maximum period of
six weeks from the date of production of
certified copy of this order.

27. The parties before this Court
undertake to cooperate the proceedings
before the trial Court.
----------
(2024) 7 ILRA 910
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

S.C.C. Revision No. 19 of 2024

Dhanush Vir Singh ...Revisionist
Versus
Dr. Ila Sharma & Ors. ...Opp. Parties