MD ZURAT AZAD KHAN Vs. JAJATI ADHIKARI

JUDGEMENT

(1.) The opposite party in a proceeding under Order 21, Rule 97 of the Code of Civil Procedure (hereinafter referred to as the "Code") is the appellant against a confirming judgment.

(2.) Bereft of unnecessary details, the brief facts giving rise to this second Appeal are as follows. The decree in Money Suit No. 136 of 1985 for realisation of certain amount was put to execution in E. P. No. 49 of 1988 in the Court of the subordinate Judge, Jeypore. The disputed property was attached and put to auction wherein the present respondent was the purchaser (hereinafter referred to as the "auction-purchaser"). After obtaining the sale certificate, the auction-purchaser took steps to take possession through the process of court. Delivery of possession was obstructed by the present appellant (hereinafter referred to as the "third party"). The auction purchaser approached the executing court under Order 21, Rule 97 of the Code complaining about the obstruction by the third party. The case of the auction-purchaser is that disputed property along with other property pertaining to plot No. 951 of Khata No. 50(47) was the recorded properly of Sayeed Zafar Madani and his brothers. The aforesaid recorded owners sold different portions of Plot No. 951 to different persons. The disputed property was purchased by Rit Bahadur, the judgment-debtor in Money Suit No. 136 of 1985 (hereinafter called the "judgment-debtor"). The third party had no right over the same nor was he in possession of the disputed property at any time and as such the obstruction offered by the third party was unjustified.

(3.) The third party (appellant) who was the opposite party in the aforesaid proceeding under Order 21, Rule 97 of the Code, pleaded that he had not obstructed the Amin at the time of alleged delivery of possession. According to him the disputed land was not the property of the judgment-debtor or the recorded owners, namely Mandani brothers. His specific case is that his grand-father had purchased the disputed property including the entire disputed plot No. 951 in 1899 and neither the Madani brothers, nor the judgment-debtor were over in possession of the disputed land and the property had been wrongly recorded in the name of Madani brothers. It was further pleaded that in a proceeding under Section 145 of the Code of Criminal Procedure, the disputed property along with some other properties appertaining to Plot No. 951 was declared to be under his possession. The maintainability of the proceeding under Order 21, Rule 97 of the Code was also questioned.