MAYA JANGID Vs. BHAGWAN SAHAI JANGID & ANR

JUDGEMENT

(1.) The present execution first appeal has been filed by the appellant-objector under Section 96 read with Order XLI Rule 1 of CPC, challenging the order dated 04.03.2014 passed by the Additional District Judge No.1, Jaipur Metropolitan (hereinafter referred to as "the executing court") in execution application No.27/2013, whereby the executing court has dismissed the application being No.4/2014 filed by the appellant under Order XXI Rule 97 of CPC.

(2.) The short facts giving rise to the present appeal are that the appellant-objector, happened to be the daughter-in-law of respondent No.1-decree holder-plaintiff, and the wife of the respondent No.2-judgment debtor-defendant. The respondent No.1 had filed one suit being No.157/2006, against the respondent No.2 seeking possession of the suit premises, which was decreed by the trial court vide the judgment & decree dated 25.02.2009. The appeal filed by the respondent No.2 against the said decree was also dismissed by the High Court. The respondent No.1-decree holder, therefore, filed the execution proceedings being No.27/2013 before the executing court in which the executing court had issued the warrant of possession against the respondent No.2. The appellant-objector having come to know about the said execution proceedings, resisted the execution of the decree by filing an application under the provisions contained in Order XXI Rule 97. The said application has been dismissed by the executing court vide the impugned order by holding that the application at the instance of the appellant was not maintainable.

(3.) It is sought to be submitted by the learned counsel Mr. Mahendra Goyal for the appellant that the appellant is staying in the suit premises with her children, and she did not have the cordial relationship with her husband. According to Mr. Goyal, the executing court has committed an error in dismissing the application of the appellant on the ground of non-maintainability under the provisions contained in Order XXI Rule 97, and has also ignored the settled legal position laid down by the Apex Court in case of Brahmdeo Chaudhary Versus Rishikesh Prasad Jaiswal & Anr., 1997 AIR(SC) 856, and in case of Noorduddin Versus Dr. K.L. Anand, 1995 1 SCC 242. He also relied upon the decision of this Court in case of Smt. Sarita Gupta versus Sudhir Jaju & Ors.,1996 DNJ 685, to submit that the application at the instance of the objector under Order XXI Rule 97 was maintainable.