CPC | No Prohibition On Third Party To Proceed Under O. 21 R. 97, 99 & 101 Even After Rejection Of Impleadment Under O. 1 R. 10: Orissa High Court

"So far as the ground assailing the impugned order that once such Appeal is rejected in exercise of power under Order 1 Rule 10 of C.P.C., there is no further scope to bring the Application under Order 21 Rules 97, 99 & 101 of C.PC., this Court observes, exercise of power involving the Application under Order 1 Rule 10 of C.P.C. and exercise of power under the provision of Order 21 Rules 97, 99 & 101 of C.P.C. are completely different. Further scope under Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the circumstance, this Court finds, there is no prohibition in bringing such Application even after rejection of such endeavor in exercise of power under Order 1 Rule 10 of C.P.C."

Contentions:

Mr. S.A. Nayeem, counsel for the petitioner-plaintiff submitted that the third party having already moved an application under Order 1 Rule 10 of CPC and being defeated in such move on rejection of the application, had no scope for moving the application on the self-same issue in the guise of Order 21 Rules 97, 99 & 101 of C.P.C.

However, he did not dispute that the third party was already involved in an independent suit, which was regarding the same property. The third party having lost in the suit went on an appeal, where he got a favourable decree. He again submits that being aggrieved by the appellate decree in favour of the third party, the plaintiff has filed a second appeal, which is pending in the High Court. In the background of rejection of an Order 1 Rule 10 of CPC application, he opposed the impugned order which involves a challenge to the entertainability of Application under Order 21 Rules 97, 99 & 101 of CPC.

Court's Observations:

Considering the submission of the counsel for the petitioner, the Court noted that the third party moving the application under Order 21 Rules 97, 99 & 101 of CPC had undertaken an exercise of civil suit and after the loss in the same, such party had gone in an appeal, wherein he got a favourable decree, which was with regard to the very same property involved in the Execution Proceeding at hand. Even though the second appeal is filed by the present plaintiff, admittedly, that is pending for consideration of the Court and the appellate decree is not disturbed as of now.

Admittedly, there exist two decrees passed by two different courts one at the instance of third party and the other at the instance of the plaintiff-petitioner involved here in the Execution Proceeding. The Court held, the third party has definite stake in the event of execution of the decree in the earlier suit and has thus rightly been allowed to join the Execution Proceeding.

Further, the Court rejected the argument that once such appeal is rejected in exercise of power under Order 1 Rule 10 of CPC, there is no further scope to bring an application under Order 21 Rules 97, 99 & 101 of CPC.

The Court observed, exercise of powers involving an application under Order 1 Rule 10 of CPC and under the provisions of Order 21 Rules 97, 99 & 101 of CPC are completely different. It made clear that the scope under Order 21 Rules 97, 99 & 101 of CPC is much wider. Therefore, the Court concluded, there is no prohibition in bringing such an application even after rejection of an application under Order 1 Rule 10.

Consequently, the Court found no impropriety or illegality in allowing such application. Hence, the impugned order was approved.

Case Title: Zobeda Khatun v. Md. Habibullah Khan & Ors.

Case No.: CMP No. 319 of 2022

Judgment Dated: 26 April 2022

Coram: Justice Biswanath Rath

Counsel for the Petitioner: M/s. S.A. Nayeem, M. Abid & S.S. Akhtar

Counsel for the Respondents: None

Citation: 2022 LiveLaw (Ori) 57