KAMAKHYA MISHRA Vs. RAM AVATAR BHAR

JUDGEMENT

(1.) Heard Mr. B. Pushilal, learned counsel appearing for the petitioners and Mr. P.K. Roy, learned counsel appearing on behalf of the respondents.

(2.) This is an application under Art. 227 of the Constitution of India challenging the judgment and order dtd. 26.04.2018 in Misc. Appeal No.22/2017 by the Court of the Civil Judge, Karimganj, whereby the order of injunction directing maintenance of status quo passed by the Munsiff No.1, Karimganj on 07.12.2017 in Misc. Case No.108/2017 arising out of Title Suit No.132/2017 was interfered with on the ground that the suit was not maintainable in view of the provisions of Order XXI Rule 101 and consequently the plaintiffs did not have a prima facie case for grant of an injunction either in the way of status quo or otherwise.

(3.) The instant proceedings raises a very important question of law as to whether a suit is maintainable seeking right, title, interest and permanent injunction in respect to a judgment and decree having been passed pertaining to an immovable property whereby the right, title and interest, confirmation of possession and permanent injunction has been issued. The question of law assumes importance in view of the amendment brought to the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976, whereby the provisions of Order XXI Rule 97 to 106 have been substantially amended whereby it is no longer required to file a separate suit seeking right, title and interest as was permitted under the unamended Rule 103 of Order XXI which had been substituted by the new Rule 101 and Rule 103 of Order XXI whereupon all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Executing Court and not by way of a separate suit. In order to decide the said legal issue it would be relevant herein to take note of the relevant facts which are as here-in-under---