High Court Jharkhand High Court

Maqsood @ Md.Maqsood vs Md.Salim & Ors. on 29 June, 2011

Jharkhand High Court
Maqsood @ Md.Maqsood vs Md.Salim & Ors. on 29 June, 2011
           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          W.P.(C) No. 1281 of 2008

           Maqsood @ Md. Maqsood             ...      ....Petitioner

                             Vs.
           Md. Salim and others .... ....Respondents

CORAM:     HON'BLE MR. JUSTICE PRASHANT KUMAR

           For the Petitioner:        Mr. S.K. Sahay
           For the Respondents:       (S.C. L&C)
                                      Mr. Rohit Roy

6/29.06.2011

: This writ application has been filed against the order

dated 24.1.2008 passed in Title Suit No. 259 of 2001 (Annexure-5)

passed by Sub Judge-IX, Ranchi whereby the learned court below

rejected the application filed by the defendant/petitioner and held that

the suit filed by the plaintiff/respondent is maintainable.

From perusal of impugned order, I find that the learned court

below had rejected the aforesaid application mainly on the ground that

an application under Order XXI Rule 97 is not maintainable on the

behest of stranger. It was further held by learned court below that if

any stranger wants to establish his right , title and interest on the

property for which a decree has already been passed he can file a

suit. Accordingly, the court below concluded that the suit is

maintainable. The aforesaid reason given by the learned court below is

on the teeth of the judgment of Hon’ble Supreme Court reported in AIR

2000 SC 3567(2) and also AIR 2002 SC 3083.

In the aforesaid judgments, their Lordship held that any person

who is not party to the decree can file an application under Order XXI

Rule 97 raising objections regarding the execution of decree. The

executing court has power under Order XXI Rule 101 to determine

right, title and interest of the aforesaid third party. It is also held in

the said judgments that for the same property, another suit for

declaration of right, title and interest is not maintainable.

Sri. Rohit Roy appearing for the respondents has admitted that

an application under Order XXI Rule 97 i.e. Miscellaneous Case No. 12

of 2001 is pending in the executing court with respect to the same

property.

-2-

In view of the aforesaid facts and circumstance and in view of law laid

down by their Lordship of Supreme Court in aforesaid two judgments,

the impugned order cannot be sustained and it is held that the suit

bearing Title Suit No. 259 of 2001 is not maintainable.

Accordingly , this application is allowed and annexure- 5 is

hereby quashed.

Before parting with this order, it is made clear that I have not

given any finding on the title of petitioner as well as of the

respondents, thus this order will not prejudice either of the party in

pursuing their case in the executing court.

( Prashant Kumar,J.)

Sharda/-