Page No.# 1/8 GAHC010063312025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/108/2025 SATYENDRA DAS AND 3 ORS SON OF LATE JAGANNATH DAS RESIDENTS OF SUNDARDIA, KALAYA HATI, BARPETA TOWN, P.O.AND P.S.BARPETA, DISTRICT - BARPETA, ASSAM. PIN 781301 2: SANJAY DAS SON OF LATE JAGANNATH DAS RESIDENTS OF SUNDARDIA KALAYA HATI BARPETA TOWN P.O.AND P.S.BARPETA DISTRICT - BARPETA ASSAM. PIN 781301 3: SAILENDRA DAS SON OF LATE JAGANNATH DAS RESIDENTS OF SUNDARDIA KALAYA HATI BARPETA TOWN P.O.AND P.S.BARPETA DISTRICT - BARPETA ASSAM. PIN 781301 4: JOYMOTI DAS WIFE OF LATE JAGANNATH DAS RESIDENTS OF SUNDARDIA KALAYA HATI BARPETA TOWN P.O.AND P.S.BARPETA DISTRICT - BARPETA ASSAM. PIN 78130 VERSUS PRATIMA BORO ALIAS PRATIMA GOALA DAUGHTER OF LATE HARI GOALA, WIFE OF RAJEN BORO, RESIDENT OF VILLAGE - JNATIGAON, MOUZA - GOBARDHANA, DISTRICT - BAKSA Page No.# 2/8 (BTAD), ASSAM. PIN - 781315 Advocate for the Petitioner : MR M RANA, MR M.HOQUE Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN O R D E R 06.08.2025 Heard Mr. M. Rana, learned counsel for the petitioners. None appears for the respondent, though notice was served upon her. 2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioners have put to challenge the correctness or otherwise of the order dated 05.02.2025, passed by the learned Munsiff No. 1, Baksa (executing court hereinafter), in Misc (J) Case No. 37/2024, arising out of Title Execution Case No. 05/2018. 3. It is to be noted here that vide impugned order, dated 05.02.2025, the learned executing Court had granted opportunity to the respondent herein, to present her case upon the suit land, by way of adducing evidence as per Order 21 Rule 97, 99 & 101 of the CPC. 4. Mr. Rana, learned counsel for the petitioners submits that the respondent filed the execution case after 7 years, without condonation petition and that the petitioners herein filed objection therein, under Order 21 Rule 97, 99 and 101 of Page No.# 3/8 the CPC. But, the learned executing Court had failed to consider the same and under such circumstances, Mr. Rana submits that the impugned order is not sustainable and therefore, it is contended to allow the petition. 5. Having heard the submission of learned counsel for the petitioners, I have carefully gone through the petition as well as the documents placed on record and also perused the petition filed by the respondent herein and also perused the impugned order dated 05.02.2025, passed by the learned executing Court. 6. It appears that vide impugned order, dated 05.02.2025, the learned executing Court had held that – the title suit proceeded ex-parte against the impleaded defendants as they did not appear to take forward the claim of the deceased defendants made in the counter-claim he filed and therefore, the right of the petitioner, who was not impleaded in place of his deceased father, was not adequately represented and the judgment was passed without the petitioner getting an opportunity to defend his legal right upon the suit land. Thereafter, relying upon a decision of Hon’ble Supreme Court in Ramesh Hirachand Kundanlal vs. Municipal Corporation of Greater Bombay, reported in (1995) 5 SCC 139, the learned executing court had held that the petitioner should have been made a party in the original suit to bind her with the result of the action brought by the plaintiffs in suit and without impleading her as a party it cannot be held that she is bound by the judgment passed behind her back affecting her legal right. Thereafter, the learned executing Court held that as the interest of the petitioner was not substantially represented by the legal heirs therefore, she is required to be given an opportunity to represent her right, title and interest over the suit land by way of adducing evidence as per Order 21 Rule 97, 99 and 101 of the CPC. 7. It also appears that the suit was decreed ex-parte on 23.10.2017 and Page No.# 4/8 thereafter, the execution proceeding was started before the learned executing Court and in the said execution proceeding, the respondent herein had filed a petition, under Order 21 Rule 97, 99 and 101 of the CPC. 8. The Hon’ble Supreme Court in Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal, reported in (1997) 3 SCC 694 has held that- “6. On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28-4-1991 the application moved by the respondent decree-holder on 6-5-1991 was necessarily to be one falling within the scope and ambit of Order 21, Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21, Rule 97 CPC could have been offered by any person. The words “any person” as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by Respondent 1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words “any person” as found in Order 21, Rule 97, sub-rule (1). Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21, Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order. Page No.# 5/8 9. It is also held in the said case that - “9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the Page No.# 6/8 obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of Page No.# 7/8 natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves.” 10. In the instant case, admittedly, the respondent herein i.e. the petitioner before the learned executing Court, was not impleaded as defendant in the title suit in spite of being the legal heir of the deceased defendant. And her right, title and interest over the decreetal land was not disputed. It is also not in dispute between the parties that no decree for possession has been obtained by the petitioners herein against the said respondent. She is, therefore, prima facie a stranger to the decree. When she offered obstruction or resistance to the execution of the decree she would squarely fall within the sweep of the words “any person” as found in Order 21, Rule 97, sub-rule (1). That being so, the application, so filed by the respondent herein before the learned executing Court for determination of her right, title and interest over the suit land squarely covered by the sweep of Order 21, Rule 97, sub-rule (1) CPC. That being so, the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order. And exactly, the learned executing Court had Page No.# 8/8 proceeded to do so. 11. Thus, having examined the impugned order dated 05.02.2025, passed by the learned Munsiff No. 1, Baksa (executing court), in Misc (J) Case No. 37/2024, arising out of Title Execution Case No. 05/2018, in the light of the given facts and circumstances on the record, this Court finds no ground for interference with the same. 12. In the result, this petition stands dismissed. Interim order, if any, passed earlier, stands vacated. The parties have to bear their own costs. JUDGE Comparing Assistant