The High Court allowed an application by the trial court to extend time to conclude trial on Appeal against Order under Order 21 Rule 97 CPC, relying on Supreme Court precedent that detailed inquiry is discretionary.
Extension of six months for the trial court to conclude the trial under Order 21 Rule 97 CPC.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Writ Misc Applicatio No. 123/2018
M/s Arsuri Paper Industries
----Petitioner
Versus
Rajesh Kumar And Anr.
----Respondent
Connected With
S.B. Civil Writ No. 6283/2018
M/s. Arasuri Paper Industries Vs. Rajesh Kumar & Ors.
| For Petitioner(s) | : Mr. |
OP Mehta |
|---|---|---|
| For Respondent(s) | : Mr. |
Rakesh Arora |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
01/08/2018
S.B. Civil Misc. Appln No.123/2018
The matter comes up on a letter dated 12.4.2018 received from the court of learned ADJ No.2, Aburoad, whereby the learned trial court has sought extension of time for further six months to conclude the trial.
The application for the reasons mentioned therein is allowed and the time sought vide the letter aforesaid is allowed.
It is made clear that the request of learned trial court to extend time by further six months shall operate from the date of letter i.e. 12.4.2018, which the learned trial court shall abide in its true spirit.
S.B. Civil Writ Petition No.4023/2016 :
under Order 21 Rule 97 CPC has been ordered to be decided by
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the learned court below after framing question and after taking evidence on the same, which is not in consonance with law. Counsel for the petitioner states that such detailed enquiry and detailed procedure is not required to be followed under Order 21 Rule 97 CPC. Counsel for the petitioner has relied upon judgment of this Court in Sri Vaishnav Brahmin Trust, Jodhpur Vs. Ramesh Chandra & Ors., reported in 2000(4) Western Law Cases (Raj.) p.581, the relevant portion whereof reads as follows :-
Counsel for the petitioner further cited judgment of Hon’ble Apex Court in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust, reported
in AIR 1998 SC 1754, relevant portion whereof reads as follows
“When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
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The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decreeholder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
In the above context we may refer to Order 21 Rule 35(1) which reads thus:
"Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or too such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property."
It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination. If the Court deems it necessary”.
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ble Apex Court in Silverline Forum Pvt. Ltd (supra) clearly provides that the adjudication is not necessarily involving a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resistor or obstructor. Simultaneously, the Honble Apex Court has stated that the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. This Court finds that the learned court below has consciously passed such order of framing of question; conducting enquiry and collective evidence and at this stage of Order 21 Rule 97 CPC, the requirement of detailed enquiry or collection of evidence is a prerogative rightly exercised by the learned court below in the given facts and circumstances of the case.(Dr. PUSHPENDRA SINGH BHATI),J
Sanjay
2 issues framed by the court
Whether detailed enquiry and collection of evidence are required for adjudication under Order 21 Rule 97 CPC.
Whether the trial court erred in framing questions and conducting evidence in an execution proceedings.
Colour shows how this judgement treated each authority
Sri Vaishnav Brahmin Trust, Jodhpur Vs. Ramesh Chandra & Ors.Referred¶20
2000(4) Western Law Cases (Raj.) p.581
Silverline Forum Pvt. Ltd. Vs. Rajiv TrustFollowed¶38
AIR 1998 SC 1754 · Who else cites this
1 provisions across 1 enactments
M/s Arsuri Paper Industries
Rajesh Kumar
Dr. Pushpendra Singh Bhati
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court