IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14738 of 2011 Jamun Sah Versus Dwarika Pd.Sharma & Ors ---------------------------------- 09. 21.12.2011 I have heard the learned senior counsel, Mr. Kamal Nayan Choubey on behalf of the petitioner and the learned senior counsel, Mr. S.S. Dvivedi on behalf of the judgment debtor, respondents, 1st set. The petitioner has filed this application under Article 227 of the Constitution of India for setting aside the order dated 10.08.2011 passed by Sub Judge I, Purnea in Title Execution Case No.3 of 2010 whereby the Executing Court directed the petitioner to restore possession of the suit premises in favour of the respondents. The learned senior counsel, Mr. Kamal Nayan Choubey submitted that on the basis of decree the execution case was filed by the decree holder, petitioner. After notice, when nobody appeared to object the execution case, the delivery of the suit premises was affected by the Court below and the petitioner was put in possession of the property. Thereafter, the respondent appeared and filed application under Order 21 Rule 99 of the C.P.C. praying for restoration of possession of the property and buildings to the petitioner. The said application was registered as Misc. Case No.14 of 2011. The 2 learned Executing Court without deciding the said Misc. Case filed by the respondents, by the impugned order directed the petitioner to hand over possession to the respondents. The Misc. Case is still pending. In such view of the matter, according to the learned counsel, the Executing Court had no jurisdiction to direct restoration of possession without deciding the Misc. Case. The learned senior counsel, Mr. Dvivedi on the other hand submitted that the respondent was not party to the suit nor his vendor, Chandu Lal Sharma was party in the suit but in the execution petition, this petitioner has been shown as judgment debtor and without service of notice possession of the suit property was delivered to the petitioner. The learned counsel further submitted that the parties to the suit had no interest in the suit property but surreptitiously included the property of this petitioner in the suit and compromised the partition suit and obtained collusive decree with regard to the property. In the execution case, notice was never served on the respondent and fraudulently, the petitioner got the notice served balabala. After dispossession, the respondents filed the Misc. Case and brought these facts before the Executing Court and on being satisfied, the Executing Court directed the petitioner to redeliver possession of the suit property to the respondents. The Court has every 3 jurisdiction to correct the mistake done by the Court and, therefore, there is no jurisdictional error. A counter-affidavit has been filed by the respondents and placed the same in extenso before this Court and submitted that the impugned order cannot be interfered with and the writ application be rejected. Admittedly, in this case after dispossession, the respondents filed the Misc. Case No.14 of 2011 on 19.07.2011 under Order 21 Rule 97 and 99 C.P.C. At paragraph 11, he has categorically admitted the fact that he has been dispossessed and delivery of possession given to the petitioner by the Nazir. In the Misc. Case, the respondents claimed that he was in possession of the suit property on the basis of agreement to sell executed by Chandu Lal Sharma dated 05.03.1998 for consideration of Rs.12 lacs. Prior to that, the petitioner was a tenant therein. After said agreement, the petitioner became the owner of the property and constructed godown, cowsheds and offices etc. As has been admitted by the parties, the delivery of possession was given to the petitioner by Nazir on 17th July, 2011. After dispossession, this Misc. Case has been filed complaining of dispossession. The Executing Court is required now to decide all questions including questions relating to right, title or interest in the property arising between the parties to the 4 proceeding i.e. Misc. Case as provided under Rule 101 C.P.C.. After adjudication, the Executing Court is required to pass order according to Rule 100 of the C.P.C. Rule 100 of the C.P.C. reads as follows: “Rule 100- Order to be passed upon application complaining of dispossession- Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination- (a) Make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) Pass such other order as, in the circumstances of the case, it may deem fit.] In view of Rule 100 of Order 21, the Court is required to determine the questions referred to in Rule 101 and upon the determination of such questions may make an order allowing the application and directing that the applicant be put into the possession of the property or may dismiss the application. In the present case, admittedly, the Misc. Case is still pending. All the grounds raised in the counter-affidavit or at the time of argument by the learned counsel for the respondents relate to the merit of the claim of the respondents which is still to be determined by the Executing Court. The merit or otherwise of the Misc. Case cannot be gone into by this Court in supervisory jurisdiction under Article 227 of the Constitution of India. Peculiarly without deciding the questions as provided under Rule 101 of Order 21 i.e. all questions including right, title or interest in the property, the learned Court below by the 5 impugned order directed the petitioner to restore the possession. In other words, the relief which could have been granted by the Executing Court ultimately after determining the questions as required under Rule 101 of Order 21 if found in favour of the applicant has been granted by passing the interlocutory impugned order. Therefore, it can be said that indirectly now the Misc. Case itself has been allowed but the Misc. Case is still pending. In view of the change made in the nature of enquiries under Rule 99 of Order 21 and in view of the order passed in such enquiries being given the force of decree and being made appealable and the consequent deletion of the right to file suits provided under the earlier Rule 103 of Order 21, the scope of proceedings arising from application filed under either Rule 97 or Rule 99 has been broadened so as to include all questions arising between the parties and relevant to the adjudication of those applications including questions as to the title of such parties in the properties. The questions would include all those questions which could have properly been raised in suits under the earlier Rule 103. Therefore, as stated above, without deciding the questions i.e. without disposing of the Misc. Case, no order for restoration of possession could have been passed by the Executing Court. The restoration of possession can only be 6 passed if the Executing Court found the questions which are to be determined as required under Rule 101 in favour of the applicant of the Misc. Case. From perusal of the impugned order, it appears that only one line statement has been made that the report of the Nazir is vague and is not according to decree. The boundary also does not tally. It may be mentioned here that so far identity of suit property is concerned, there is no dispute and moreover, again it is a question that may be decided ultimately. In view of my above discussion, I find that the learned Court below has exercised a jurisdiction improperly and not permitted by law and thereby grave injustice has occasioned. In my opinion, therefore, the impugned order is unsustainable. Thus, this application under Article 227 of the Constitution of India is allowed. The impugned order is set aside. The Executing Court shall proceed to decide the Misc. Case on merit after hearing the parties as early as possible. Saurabh (Mungeshwar Sahoo,J.)