KUNI MOHANTY Vs. UPENDRA BARIK & OTHERS

JUDGEMENT

(1.) The appellant in this appeal filed under section 100, read with Order-21, Rule-103 of the Code of Civil Procedure has called in question the order passed by the learned District Judge, Bhadrak in R.F.A. No.47 of 2011 confirming the order passed by the learned Civil Judge (Sr. Division), Bhadrak in I.A. No.308 of 2011, in the matter of an application under Order-21, Rule-99 of the Code arising out of Execution Case No.39 of 2003, which has been filed for executing the decree passed in Title Suit No.87 of 2000.

(2.) The essential facts from the beginning in nutshell are:-

(3.) The present appellant, claiming to be a third party and a stranger to the suit, on 20.05.2011 filed an application under Order-21, Rule-99 of the Code in the said execution proceeding. It is stated therein that she is a member of the family of the defendant/judgment debtors and she has succeeded to the interest of her husband over the suit property. It is stated that in the family partition and as per the registered deed of partition dated 15.04.1964, land measuring Ac.0.02 dec. had been allotted to her father-in-law Bimbadhar. However, in the major settlement it had been wrongly recorded in the name of predecessor-ininterest of the plaintiff/ decree-holder, i.e., Nidhi Barik. It is alleged that said erroneous recording has been taken advantage of and, the plaintiff/decree-holder having filed Title Suit No.87 of 2000 without making her, who the said third party/ petitioner and the appellant here or her husband a party, has thus obtained the decree. So, it is said that the said proceeding having been taken behind her back, she is not bound by the said decree and her claim need be adjudicated upon. It is further stated that on 18.05.2011 afternoon, the plaintiff/decree-holder with the help of others has driven her and her children from their ancestral pucca house which was standing on a portion of the suit land and other land as also they have removed the household articles. When this was informed at the police station, the matter came to be known that the plaintiff/ decree-holder has been armed with a decree in his favour in respect of the suit property. It is also stated that the other defendant/ judgmentdebtors, although belong to the same family yet as they were not pulling on well with her, had never informed her about the suit and its result. The prayer in the petition is for a decision afresh in that Execution Case so far as the claim over the subject matter of the proceeding as advanced.