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/-