It was open for the learned Executing Court to make any such
notice of objection by the other party and form its opinion on the
relevancy of the document at the time of final judgment of the
case.
8. The practice of passing a detailed order, allowing or rejecting
the objection and consequential leading to suspension of trial on
account of journey to the higher Court would not be a proper
course to be adopted during the proceedings of any such trial.
Reliance may be placed upon the judgment rendered by the Apex
Court in the case of Bipin Shantilal Panchal (supra). It is always
open to the learned Trial Court / Executing Court in any such matter
to test the sustainability of the objection or otherwise to form an
opinion on the relevancy of the document at the time of final
adjudication. The learned Trial Court while passing the impugned
order has however exceeded its jurisdiction in observing at length
on the question of relevancy of the document.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3828 of 2008
Thakur Hansda
Vrs.
Mukhodi Hembram
CORAM: MR. JUSTICE APARESH KUMAR SINGH
Citation:AIR 2017 JHAR 38
2. Execution Case No. 6/2007 was being prosecuted by the
Respondents who were the decree holders of the Title (Partition)
Suit No. 28/1994 vide judgment dated 27.5.2005 and final decree
dated 22.2.2007. Petitioner herein filed an application under Order
21 Rule 97 of the Civil Procedure Code taking an objection to the
execution of the decree. Petitioner claimed that his natural father
namely Sarju Hasda had given him in adoption to Dashrath Hasda.
However, learned counsel for the petitioner submits that averment
recorded in the opening paragraph of the impugned judgment
suffers from error on record on that score where it has been
erroneously recorded that applicant, Thakur Hansda was adopted
by plaintiff Mukhudi Hemhram.
3. Despite knowledge of such adoption and filing of written
statement in the title suit by Sarju Hasda, present petitioner was
not impleaded as necessary party in the title suit. He therefore
sought to object by way of an application under Order 21 Rule 97
of the Civil Procedure Code which was accepted by learned
Executing Court. In the miscellaneous case being Misc Case No.
2/2007, he filed an application to exhibit a document said to be the
written statement filed by Sarju Hasda where under the factum of
his adoption by Dashrath Hasda was averred. Learned Court of Sub
Judge-1, Jamtara by the impugned order dated 28.4.2008 has
however rejected the same. Learned Executing Court has
considered the rival pleas of the parties on such application and-2-
came to an opinion that the written statement filed by Sarju Hasda
in Title Suit No. 28/94 was not in terms of the directions passed by
the Appellate Court in Title Appeal No. 13/1997/75/2001 where
under the matter was remanded to the Trial Court for adjudication.
The Defandant, Sarju Hasda had to file written statement within a
period of 30 days with cost of Rs.1000/-. Neither was the written
statement filed in the Trial Court after remand within 30 days nor
was the cost paid. Filing of the written statement thereafter had no
sanctity and was treated as nil document which did not have any
relevancy to be adduced as an exhibit on the part of the objector/
petitioner herein.
4. Learned counsel for the petitioner submits that relevancy of
the document sought to be executed were not required to be gone
into at the stage of its exhibition, which could be considered at the
time of final adjudication by the learned Trial Court. Petitioner
wanted to show that despite knowledge of the fact that he is
adopted son of the Dashrath Hasda on receipt of such written
statement by them, he was consciously not impleaded as
Defendant in the title suit, though he had necessary stake in the
matter. Therefore, the decree could not be executed against him. It
is submitted that the learned Executing Court made an error in
refusing to allow exhibition of the document on the part of the
petitioner in the miscellaneous case.
5. Learned counsel for the petitioner has relied upon judgment
rendered by the Apex Court in the case of Bipin Shantilal
Panchal Vrs. State of Gujarat reported in (2001)3 SCC 1 and
in the case of Parmeshwar Rana & others Vrs. Dwarika Rana
reported in [2011 (3) JCR 11(Jhr)] rendered by this Court in
support of his submission.
6. Learned counsel for the Respondent submits that learned-3-
Executing Court has considered the plea of the petitioner and upon
spacious grounds recorded in the impugned order found no reason
to allow exhibition of the document which was never officially
taken on record in the title suit. The written statement filed more
than 2 year after expiry of 30 days period by Sarju Hasda has no
relevance for adjudication of the miscellaneous case. Therefore, it
has rightly been rejected by the learned Executing Court.
7. I have considered submission of the parties in the light of
relevant material facts pleaded. Whether filing of the written
statement by Sarju Hasda was in terms of the directions passed by
the Appellate Court while remanding the suit to the learned Trial
Court and that the written statement sought to be exhibited by the
petitioner herein in the miscellaneous case had any relevance or
legal sanctity to the issue required to be decided by the Executing
Court on an objection made under Order 21 Rule 97 of the Civil
Procedure Code was not a consideration which should have
weighed upon by the learned Executing Court while allowing or
refusing adducing of the said document on the part of the objector.
It was open for the learned Executing Court to make any such
notice of objection by the other party and form its opinion on the
relevancy of the document at the time of final judgment of the
case.
8. The practice of passing a detailed order, allowing or rejecting
the objection and consequential leading to suspension of trial on
account of journey to the higher Court would not be a proper
course to be adopted during the proceedings of any such trial.
Reliance may be placed upon the judgment rendered by the Apex
Court in the case of Bipin Shantilal Panchal (supra). It is always
open to the learned Trial Court / Executing Court in any such matter
to test the sustainability of the objection or otherwise to form an-4-
opinion on the relevancy of the document at the time of final
adjudication. The learned Trial Court while passing the impugned
order has however exceeded its jurisdiction in observing at length
on the question of relevancy of the document. As a result, the
proceedings in the execution case has remained stalled on account
of the challenge laid by the petitioner before this Court and interim
order passed earlier.
9. However, upon consideration of the issue involved in the light
of the law on the subject, this Court is of the opinion that the
impugned order dated 28.4.2008 requires interference under
Article 227 of the Constitution of India. Accordingly, it is quashed.
Learned Executing Court would now proceed in the matter and
pass fresh order on application of the petitioner for adducing
evidence. Needless to say, as has been observed herein above as
well, it would always be open to the learned Court to form an
opinion about the relevancy of the document at the time of
adjudication of the miscellaneous case. However, since the
proceedings of the execution case have remained pending since
2007, learned Executing Court would make endeavour to decide
the miscellaneous case No. 2/2007 and the Execution Case No.
6/2007 within reasonable time, preferably 4 months.
10. The writ petition is allowed in the aforesaid manner. Let the
Lower Court Records be sent to the concerned Court below
forthwith.
(Aparesh Kumar Singh, J.)
Kamlesh/ A. Mohanty
notice of objection by the other party and form its opinion on the
relevancy of the document at the time of final judgment of the
case.
8. The practice of passing a detailed order, allowing or rejecting
the objection and consequential leading to suspension of trial on
account of journey to the higher Court would not be a proper
course to be adopted during the proceedings of any such trial.
Reliance may be placed upon the judgment rendered by the Apex
Court in the case of Bipin Shantilal Panchal (supra). It is always
open to the learned Trial Court / Executing Court in any such matter
to test the sustainability of the objection or otherwise to form an
opinion on the relevancy of the document at the time of final
adjudication. The learned Trial Court while passing the impugned
order has however exceeded its jurisdiction in observing at length
on the question of relevancy of the document.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3828 of 2008
Thakur Hansda
Vrs.
Mukhodi Hembram
CORAM: MR. JUSTICE APARESH KUMAR SINGH
Citation:AIR 2017 JHAR 38
2. Execution Case No. 6/2007 was being prosecuted by the
Respondents who were the decree holders of the Title (Partition)
Suit No. 28/1994 vide judgment dated 27.5.2005 and final decree
dated 22.2.2007. Petitioner herein filed an application under Order
21 Rule 97 of the Civil Procedure Code taking an objection to the
execution of the decree. Petitioner claimed that his natural father
namely Sarju Hasda had given him in adoption to Dashrath Hasda.
However, learned counsel for the petitioner submits that averment
recorded in the opening paragraph of the impugned judgment
suffers from error on record on that score where it has been
erroneously recorded that applicant, Thakur Hansda was adopted
by plaintiff Mukhudi Hemhram.
3. Despite knowledge of such adoption and filing of written
statement in the title suit by Sarju Hasda, present petitioner was
not impleaded as necessary party in the title suit. He therefore
sought to object by way of an application under Order 21 Rule 97
of the Civil Procedure Code which was accepted by learned
Executing Court. In the miscellaneous case being Misc Case No.
2/2007, he filed an application to exhibit a document said to be the
written statement filed by Sarju Hasda where under the factum of
his adoption by Dashrath Hasda was averred. Learned Court of Sub
Judge-1, Jamtara by the impugned order dated 28.4.2008 has
however rejected the same. Learned Executing Court has
considered the rival pleas of the parties on such application and-2-
came to an opinion that the written statement filed by Sarju Hasda
in Title Suit No. 28/94 was not in terms of the directions passed by
the Appellate Court in Title Appeal No. 13/1997/75/2001 where
under the matter was remanded to the Trial Court for adjudication.
The Defandant, Sarju Hasda had to file written statement within a
period of 30 days with cost of Rs.1000/-. Neither was the written
statement filed in the Trial Court after remand within 30 days nor
was the cost paid. Filing of the written statement thereafter had no
sanctity and was treated as nil document which did not have any
relevancy to be adduced as an exhibit on the part of the objector/
petitioner herein.
4. Learned counsel for the petitioner submits that relevancy of
the document sought to be executed were not required to be gone
into at the stage of its exhibition, which could be considered at the
time of final adjudication by the learned Trial Court. Petitioner
wanted to show that despite knowledge of the fact that he is
adopted son of the Dashrath Hasda on receipt of such written
statement by them, he was consciously not impleaded as
Defendant in the title suit, though he had necessary stake in the
matter. Therefore, the decree could not be executed against him. It
is submitted that the learned Executing Court made an error in
refusing to allow exhibition of the document on the part of the
petitioner in the miscellaneous case.
5. Learned counsel for the petitioner has relied upon judgment
rendered by the Apex Court in the case of Bipin Shantilal
Panchal Vrs. State of Gujarat reported in (2001)3 SCC 1 and
in the case of Parmeshwar Rana & others Vrs. Dwarika Rana
reported in [2011 (3) JCR 11(Jhr)] rendered by this Court in
support of his submission.
6. Learned counsel for the Respondent submits that learned-3-
Executing Court has considered the plea of the petitioner and upon
spacious grounds recorded in the impugned order found no reason
to allow exhibition of the document which was never officially
taken on record in the title suit. The written statement filed more
than 2 year after expiry of 30 days period by Sarju Hasda has no
relevance for adjudication of the miscellaneous case. Therefore, it
has rightly been rejected by the learned Executing Court.
7. I have considered submission of the parties in the light of
relevant material facts pleaded. Whether filing of the written
statement by Sarju Hasda was in terms of the directions passed by
the Appellate Court while remanding the suit to the learned Trial
Court and that the written statement sought to be exhibited by the
petitioner herein in the miscellaneous case had any relevance or
legal sanctity to the issue required to be decided by the Executing
Court on an objection made under Order 21 Rule 97 of the Civil
Procedure Code was not a consideration which should have
weighed upon by the learned Executing Court while allowing or
refusing adducing of the said document on the part of the objector.
It was open for the learned Executing Court to make any such
notice of objection by the other party and form its opinion on the
relevancy of the document at the time of final judgment of the
case.
8. The practice of passing a detailed order, allowing or rejecting
the objection and consequential leading to suspension of trial on
account of journey to the higher Court would not be a proper
course to be adopted during the proceedings of any such trial.
Reliance may be placed upon the judgment rendered by the Apex
Court in the case of Bipin Shantilal Panchal (supra). It is always
open to the learned Trial Court / Executing Court in any such matter
to test the sustainability of the objection or otherwise to form an-4-
opinion on the relevancy of the document at the time of final
adjudication. The learned Trial Court while passing the impugned
order has however exceeded its jurisdiction in observing at length
on the question of relevancy of the document. As a result, the
proceedings in the execution case has remained stalled on account
of the challenge laid by the petitioner before this Court and interim
order passed earlier.
9. However, upon consideration of the issue involved in the light
of the law on the subject, this Court is of the opinion that the
impugned order dated 28.4.2008 requires interference under
Article 227 of the Constitution of India. Accordingly, it is quashed.
Learned Executing Court would now proceed in the matter and
pass fresh order on application of the petitioner for adducing
evidence. Needless to say, as has been observed herein above as
well, it would always be open to the learned Court to form an
opinion about the relevancy of the document at the time of
adjudication of the miscellaneous case. However, since the
proceedings of the execution case have remained pending since
2007, learned Executing Court would make endeavour to decide
the miscellaneous case No. 2/2007 and the Execution Case No.
6/2007 within reasonable time, preferably 4 months.
10. The writ petition is allowed in the aforesaid manner. Let the
Lower Court Records be sent to the concerned Court below
forthwith.
(Aparesh Kumar Singh, J.)
Kamlesh/ A. Mohanty
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