Heard Sri A.K.S. Bais, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for respondent No.1.
The petitioner claiming himself to be the owner and landlord of the premises in dispute instituted SCC Suit No.21 of 2002 for eviction of one Ali Hasan alleging him to be his tenant who is now dead and is represented by respondents No.2, 3 and 4. The said suit was decreed ex-parte on 24.3.2004. The said ex-parte decree was put in execution by the petitioner by means of execution No.7 of 2006. In the said execution, respondent No.1 moved application under Order XXI Rules 97, 99, 103 read with Section 151 C.P.C. objecting to the execution. The application was rejected by the court of first instance vide order dated 20.7.2007. Aggrieved by the same, respondent No.1 filed SCC Revision No.23 of 2007. The revision has been allowed and after setting aside the order of the court below the matter has been remanded for decision afresh.
The submission of Sri Bais, learned counsel for the petitioner is that an application under Order XXI Rules 97, 99 and 103 C.P.C. as filed by respondent No.1 was not maintainable and, therefore, the revisional court has erred in passing the impugned order holding it to be maintainable. He submits that there is a distinction between a decree of ejectment and decree for possession in respect of immovable property and in proceedings of execution of a decree of small causes court the provisions of Order XXI C.P.C. are not applicable.
On the other hand, Sri Ashish Kumar Singh, learned counsel for respondent No.1 has submitted that there is no provision of law which debars application of Order XXI C.P.C. to execution proceedings with regard to a decree passed by the small causes court.
The executing court has rejected the application as not maintainable but the revisional court disagreeing with the above held that in view of Section 7 C.P.C. there appears to be no bar in entertaining objections of third party under Order XXI Rule 97 C.P.C. in execution proceedings. Thus, the order has been set-aside and the matter has been remanded.
In view of the above, the only question to be dealt with in this petition is whether in execution proceedings of a decree of eviction passed by the small causes court the provisions of Order XXI Rule 97 C.P.C. are applicable so as to entitle a third party to resist the execution.
Section 7 C.P.C. provides for exemption of certain provisions of C.P.C. from proceedings before the small causes court. It provides that following provisions shall not apply to Courts constituted under the Provincial Small Cause Courts Act, 1887 that is to say Sections 9, 91, 92, 94 and 95 so far as they relate to order for the attachment of immovable property, injunctions, the appointment of a receiver of immovable property or interlocutory orders referred to in clause (e) of Section 94 and Section 96 to 112 and Section 115 C.P.C.
The aforesaid Section 7 does not make any distinction between decree of eviction or a decree of possession in respect of an immovable property. It only provides that provisions of certain sections of the C.P.C. would not apply to the courts constituted under the Provincial Small Cause Courts Act, 1887. The provisions which have been exempted from their application to such courts do not include the provisions of Order XXI C.P.C. relating to execution of decrees and orders.
Order L Rule 1 C.P.C. also provides for exemption of certain provisions of C.P.C. to the Courts constituted under the Provincial Small Cause Courts Act, 1887. The exemption provided there in is only in respect of Order II Rule 1, Order X Rule 3, Order XI, except Rule 4 of the said order, Order XVIII Rules 5 to 12, Orders XLI to XLV, Order XLVII Rules 2, 3, 5, 6, 7 and Order LI. The aforesaid Order L Rule 1 C.P.C. also does not exempt the applicability of Order XXI C.P.C. to the execution of decree passed by the Small Cause Courts.
In view of aforesaid provisions of Section 7 and Order L Rule 1 C.P.C. the provisions of Order XXI are not exempted from application to the execution proceedings before the Small Cause Courts Act.
Accordingly, there is no mistake or error of law on part of the revisional court in passing the impugned order and holding that the application of the respondent No.1 moved under Order XXI Rules 97, 99, 103 read with Section 151 C.P.C. is maintainable which requires adjudication on merits.
The writ petition is, therefore, devoid of merit and is dismissed.
Order Date :- 19.8.2014 Brijesh