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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B. CIVIL SECOND APPEAL NO.260/2008
Smt. Kumari Devi
versus
Smt. Naurangi Devi and ors.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.B.P.Bohra, for the petitioner
Mr.Sajjan Singh, for the respondents.
DATE OF ORDER : 25th September, 2008.
ORDER
1. Heard the learned counsels for the parties.
2. This second appeal is directed against the concurrent judgments
of two courts below whereby the Courts below have rejected the
objection of the appellant Smt. Kumari Devi under Order 21 Rule 97
C.P.C. The learned Appellate Court of Dist. Judge, Palie while
dismissing the appeal No.35/2008 on 10.9.2008 upheld the judgment
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of the learned trial Court dated 9.10.2007 and thus both the Courts
below held that the appellant – objector Smt. Kumari Devi being
daughter of the original judgment debtor late Sh. Banke Lal was
impleaded as legal representative during the course of appeal and
therefore, was bound by the decree as legal representative of the
judgment debtor.
3. The Courts below also found that such objector had no right to
retain possession of the portion of the suit property in her
independent capacity since after her marriage in the year 1987, she
had gone to her in-laws’ house, where alleged construction claimed to
be done in the year 1983 was by her father late Sh. Banke Lal over
which also, he could not claim any adverse possession against the
decree holder and therefore, the objections under Order 21 Rule 97
C.P.C. were not maintainable as the petitioner could not be said to be
a stranger to the proceedings.
4. The learned appellate Court also upheld the said order on
10.9.2008 and held that it could not be said that the objector was not
aware of the decree and the cause of action for raising objection arose
to her only when the sale-amin visited the suit premises for taking
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over possession of the suit premises. The appellate Court also held
that the objector could not contend that she had got construction of a
room, pole and toilet 23 years back and was, therefore, owner by way
of adverse possession of the said portion. The appellate Court
reiterated that the objector having been impleaded as legal
representative of Banke Lal was bound by the decree and could not
be said to be 3rd party or stranger and therefore, the provisions of
Order 21 Rule 97 read with Order 101 C.P.C. were not attracted in the
present case.
5. Being aggrieved by the said judgment of two courts below, the
appellant – objector has approached this Court by way of present
second appeal.
6. Mr. B.P. Bohra, learned counsel appearing for the appellant
relying on the decision of Hon’ble Supreme Court in the case of
Bhanwar Lal V/s Satyanarain and another reported in (1995) 1
SCC 6 and in the case of Anwarbi V/s Pramod D.A. Joshi and ors.
reported in (2000) 10 SCC 405 submitted that Rule 35(3) of Order 21
applies where person resisting execution of the decree is bound by the
decree, whereas Rule 97 applies where “any person” resists execution
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of the decree and therefore, the enquiry is required to be held under
Order 21 Rule 101 C.P.C. before the decree can be executed. Even
the obstructionist in possession can only be dispossessed in
accordance with law and the decree holder has to take appropriate
steps under Order 21 Rule 97 C.P.C. for removal of obstructions and
to have the rights of the parties including the obstructionist
adjudicated under Order 21 Rule 101 C.P.C.
7. Mr.Sajjan Singh, learned counsel appearing on caveat
vehemently opposed these submissions and urged that the objections
raised by the appellant were not maintainable as the appellant herself
was impleaded as legal representative of Banke Lal, original
defendant and judgment debtor and she being herself the judgment
debtor, she could raise objection under Section 47 C.P.C., but not
under Order 21 Rule 97 C.P.C. as she was not a stranger to the suit.
He submitted that the judgments relied upon by the learned counsel
for the appellant are not applicable in the present case and since both
the courts below have concurrently rejected the objections on this
ground and have also found that she could not claim any ownership
right by way of adverse possession over the portion of the property,
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no substantial question of law arises and the present second appeal
deserves to be dismissed.
8. Having heard the learned counsel and having given my
thoughtful consideration to the rival contentions and the judgments
cited at the Bar, this Court is of the opinion that no substantial
question of law arises in the matter requiring determination by this
Court under Section 100 C.P.C. Admittedly, the appellant – objector
is the daughter of late Sh. Banke Lal and was impleaded as legal
representative of Banke Lal on his death during the course of appeal
and once the appellate Court affirmed the decree passed by the
learned trial Court,she was equally bound by the decree as other legal
representatives were. She could not said to be a stranger or third party
to the suit and therefore, the objections filed by her under Order 21
Rule 97 C.P.C. were obviously not maintainable. Further since the
Courts below have also given their findings on the claim of the
appellant that she was not the owner of the portion of the suit
property having constructed the same herself, such being findings of
fact by two Courts below, do not require any interference by this
Court under Section 100 C.P.C.
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9. The judgments cited by the learned counsel for the appellant
are distinguishable as in those matters, objections were raised by a
stranger to the suit, which the appellant – objector is not.
10. Consequently this appeal is found to be devoid of merit and the
same is accordingly dismissed. No order as to costs.
(Dr.VINEET KOTHARI)J.
Item No.S-2
Ss/-