SATYENDRA GHOSH Vs. BANI BHATTACHARJEE

JUDGEMENT

(1.) This revision application has been filed against the part of the order dated 3.7.97 passed by the learned Civil Judge (Sr. Division) No. 2 Guwahati in Title Execution Case No. 1/93. A decree was obtained by the opp. parties in a suit of 1981 and that decree was put into execution. When the decree was put into execution the judgment debtor filed an application questioning the legality and validity of the decree on various grounds and that has been rejected by the executing court. We are not concerned with that aspect of the matter as those judgment debtors are not here in this revision application. This revision application has been filed by a stranger to the decree. He filed an application under Section 47 of the CPC before the Executing Court and the Executing Court did not accept this application filed by the present petitioner holding that as he is a stranger he has no right to file this application under Section 47 of the CPC. Section 47 applies only to parties to the suits. Hence this revision.

(2.) I have heard Sri S.P. Roy. learned advocate for the petitioner and Sri CK Sharma Baruah, learned advocate for the respon- dents/opp. parties. Sri Roy contends that mere quoting a wrong Section in the application itself is not sufficient. He submits that this application should have been treated as an application under Order 21 Rule 97 of the CPC and the court should have proceeded with the matter in accordance with the scheme under Order 21 Rule 97 to Rule 105 and it is submitted that he made submissions before the executing court but even those submissions were not considered by the executing court . Sri Roy in support of his contention that mere wrong quoting of Section is not sufficient, relies on a decision reported in Bhanwar Lal v. Satyanarain & Anr. That matter also arose out of a matter for execution. There also a stranger made an application and that was rejected and the Supreme Court directed that such application should be considered under Order 21 Rule 97 and the Supreme Court further pointed out that after all the procedure is the handmaid of substantive justice and it should not be used as weapons or should not be used as a roaster by the court. The contention of Sri Roy may be correct but what he has missed in the case is that the Supreme Court has pointed that the right to file an application under Order 21 Rule 97 or Rule 99 will arise only when the decree holder is obstructed in the delivery of possession. In the case of 1995 (supra) the decree was put into execution and the Nazir/ Bailiff of the court went to deliver the possession and at that time this stranger obstructed to the delivery of possession and it was in such a situation the Supreme Court pointed out that he has acquired right to file an application under Order 21 Rule 97 and/or Rule 99.

(3.) The next case relied on by Sri Roy is Brahmdeo Chaudhury v. Rishikesh Prasad Jaiswal. That was also a case under Order 21 Rule 97 and Rule 99. There also the Supreme Court pointed out that the Order 21 can be invoked only after offering a resistance by a stranger. The Supreme Court has specifically stated in paragraph 5 as follows : "Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree holder the remedy available under Order 21 Rule 97 to 105 shall come into field."