AYIREDDY LAKSHMI Vs. PYDAS SUBRAHMANIYA JAGANNADHA SATYA PRASAD

JUDGEMENT

(1.) THE petitioners who are third parties to the proceedings filed E. A. No. 611 of 2007 in E. P. No. 692 of 2002 in O. S. No. 910 of 1985 pending on the file of the learned I Additional Junior Civil Judge, Kakinada claiming independent rights in the petition schedule property and stating that the respondents - decree holders are not entitled to dispossess them from the petition schedule property in pursuance of the decree which is sought to be executed, to which the decree holders filed a counter affidavit. The learned I Additional Junior Civil Judge by the impugned docket order dated 18-9-2008 dismissed the E. A. holding that in the light of order dated 5-1-2007 passed by this Court in C. R. P. No. 102 of 2007, the petition is not maintainable in law. Questioning the correctness of the same, the present revision is filed.

(2.) HEARD the learned counsel for the petitioners and the learned counsel for the respondents and perused the order passed by this Court in C. R. P. No. 102 of 2007, wherein a learned single Judge of this Court upheld the order passed by the Executing Court dismissing the application filed by the tenant resisting execution and not to evict him from the petition schedule property without due process of law. This Court held that Order 21, Rule 97 CPc postulates that an application under the said provision can be filed only either by the decree holder or by the auction purchaser in the execution proceedings and the claim petitioner who does not belong to either, of these two categories cannot maintain such application.

(3.) A two judge Bench of the Supreme Court in Shreenath v. Rajesh after considering the provisions under Order 21 Rule 97 CPC held that both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executing itself. It was further held that both the Executing Court and the High Court have rejected the application of the applicant who is a third party (emphasis supplied) under Order 21, Rule 97 only on the basis of the Full Bench decision of the Madhya Pradesh High Court in Usha Jain v, Manmohan Bajaj and accordingly set aside the order passed by the Courts below directing the Executing Court to consider and dispose of the objections and the application of the petitioners third parties under Order 21 Rule 97 CPC after giving opportunity to the parties in accordance with law.