BRAHMDEO CHAUDHARY versus RISHIKESH PRASAD JAISWAL AND ANR.

BRAHMDEO CHAUDHARY versus RISHIKESH PRASAD JAISWAL AND ANR.

When resistance is offered by a stranger claiming independent right in the decretal property, the executing court is bound to adjudicate such objections under Order XXI Rule 97 before handing over possession. Refusal to do so and relegating the objector to Rule 99 after dispossession violates principles of natural justice.

Parties
Appellant: Brahmdeo Chaudhary; Respondent No. 1 / Decree Holder: Rishikesh Prasad Jaiswal; Judgment Debtor: Respondent No. 2 (not named)
Jurisdiction
India
Judgment Date
22 January 1997
Procedural Posture
Civil Appeal / Appeal by Special Leave From Judgment and Order of the Patna High Court
Outcome
Appeal allowed; orders of Executing Court and High Court set aside; proceedings remanded.
Legal Topics
Execution of Decrees, Obstruction and Resistance by Strangers, Order XXI, Rules 35, 97, 98, 99, 101, 105 CPC
Civil Procedure Execution of Decrees Obstruction and Resistance by Strangers Order Xxi, Rules 35, 97, 98, 99, 101, 105 CPC

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Parties

Brahmdeo Chaudhary

Appellant

Rishikesh Prasad Jaiswal

Respondent No. 1 / Decree Holder

Respondent No. 2 (not named)

Judgment Debtor

Procedural Posture

Civil Appeal / Appeal by Special Leave From Judgment and Order of the Patna High Court

Legal Issues

  1. 1 Whether a stranger occupying decretal premises in his own right and resisting execution can request the Executing Court to adjudicate upon his resistance without first being dispossessed.

Ratio Decidendi

When resistance is offered by a stranger claiming independent right in the decretal property, the executing court is bound to adjudicate such objections under Order XXI Rule 97 before handing over possession. Refusal to do so and relegating the objector to Rule 99 after dispossession violates principles of natural justice.

Court Disposition

Appeal allowed; orders of Executing Court and High Court set aside; proceedings remanded.

Orders

  • Impugned judgment of the High Court and order of Executing Court quashed and set aside.
  • Proceedings remanded to the Court of Munsif II, Munger, to redecide decree-holder's application dated 6th May, 1991, treating it as one under Order XXI Rule 97 CPC.