Orissa High Court: Biswanath Rath, J., rejected the application being devoid of merits.
The instant C.M.P. involves allowing an Application being moved by a third party in an Execution Proceeding taking resort to the provision under Order 21 Rules 97, 99 & 101 of Civil procedure code i.e. CPC after the third party having already moved an Application under Order 1 Rule 10 of CPC. Thus, in the background of rejection of an Order 1 Rule 10 of C.P.C. application, the impugned order is opposed in the instant application involving a challenge to the entertainability of Application under Order 21 Rules 97, 99 & 101 of CPC.
Counsel for petitioner S.A. Nayeem, M. Abid and S.S. Akhtar submitted that being defeated in the move on rejection of the Application under Order 1 Rule 10 of CPC there is no scope for moving the Application on the selfsame issue in the guise of Order 21 Rules 97, 99 & 101 of CPC.
The Court observed that the third party moving the Application under Order 21 Rules 97, 99 & 101 of C.P.C. had undertaken an exercise of Civil Suit and after the loss in the Civil Suit, such party even undertaken the Appeal exercise and there is a decree in favour of such party involving the very same property involved in the Execution Proceeding at hand. Even though the Second Appeal is filed by the present Plaintiff, admittedly, the Second Appeal is pending for consideration of this Court and the appellate decree is not disturbed as of now.
The Court observed that admittedly, there exist two decrees passed by two different courts at the instance of third party and the other at the instance of the Plaintiff- Petitioner involved here in the Execution Proceeding, i.e., the decree holder and the third party as Plaintiff in the other.
The Court further observed that exercise of power involving the Application under Order 1 Rule 10 of C.P.C. and exercise of power under the provision of Order 21 Rules 97, 99 & 101 of C.P.C. are completely different. Further scope under Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the circumstance, this Court finds, there is no prohibition in bringing such Application even after rejection of such endeavor in exercise of power under Order 1 Rule 10 of C.P.C.
The court thus held “In the circumstance and reading through the observations of the Executing Court, this Court finds, there is right exercise of power and the observation clearly discloses the findings of this Court even. In the circumstance, this Court finds, there is no impropriety or illegality in allowing such Application requiring to be interfered with.” [Zobeda Khatoon v. Habibullah Khan, 2022 SCC OnLine Ori 1296, decided on 26-04-2022]