08 July 2020
Can I challenge an Application filed under Order 21 Rule 97 CPC?
I got possession of a shop in Delhi by the Order of ADJ THC. But Union Bank came in my Court after 04 months with an Application of Order 21 Rule 97 CPC stating that it had already possessed that shop by the Order of CMM Delhi.
But there were so many laws violated by this Bank while sanctioning the Loan facility against this shop.
I want to challenge Bank's application under Order 7 Rule 11 CPC for Rejecting its Application.
Would my application be maintainable because I have come to know that Order 7 Rule 11 CPC is for Rejecting the PLAINT?
Is bank's application under Order 21 Rule 97 just like a Plaint?
09 July 2020
Order XXI Rule 97 of Code of Civil Procedure 1908 states "Resistance or obstruction to possession of immovable property" (1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. If the Union Bank has filed an application 4 months after possession of decretal property, they have to prove their possession and reasons for non participation in the suit and execution. Application u/o VII Rule 11 CPC for rejection of suit is not maintainable in the instant case.
Union Bank had the possession by the Order of CMM Court under Sarfaesi Act due to NPA Loan. They reached late in my court (Execution Court, where I am the DH) that is their fault but that is another issue shall be decided under Limitation Act as I know.
My Question was, as once an application is moved under Order 21 Rule 97/99 the proceeding runs just like a suit (Order 21 Rule 101), so would not an application under Order 7 Rule 11 shall be maintainable?
10 July 2020
Though the application under rule 97 is a substitute for a suit to carry out an extensive enquiry, it has the trappings of an application.
The application purports to find out whether the decree holder or purchaser has sufficient title to disposses the obstructor.
The rule 11 applicable to a plaint in the initial stage seems to have no application at the fag end of an execution matter. The application under the Rule 97 stands on a more sound footing than that of a plant.
10 July 2020
Thnx for the Replies till now Dear Experts. My little research:--
BLACK'S LAW DICTIONARY 2ND ED.
Eng. law. The exhibiting of any action, real or personal, in writing; the party making his plaint is called the plaintiff. In English practice. A private memorial tendered In open court to the judge, wherein the party injured sets forth his cause of action. A proceeding in Inferior courts by which an action is commenced without original writ. 3 Bl. Comm. 373. This mode of proceeding is commonly adopted in cases of replevin. 3 Steph. Comm. 606. In the civil law. A complaint; a form of action, particularly one for setting aside a testament alleged to be invalid. This word is the English equivalent of the Latin “que rela.” ----------------------------- It must be noted that the expression “Plaint” has not been defined anywhere in CPC. However it can be said to be a statement of claim, a document, or Memorial by the presentation of which a suit is instituted. It contains the grounds on which the assistance of a court is sought by plaintiff. It is a pleading of the plaintiff.
On the above mentioned words, cannot an application under Order 21 Rule 97/99 be called a PLAINT?
The bank has brought its sad story, its complaint in my Execution Court through an application, canot this application be called a PLAINT?
Because with the advent of this application, now the whole Execution matter has taken a NEW form. Now the battle is between me and Bank. Things have changed.
1. I Gave earnest money separately for 2 shops under 2 different Agreements to Sell.
2. Beached by the Seller.
3. I filed 2 separate Arbitral Lawsuits.
4. Won both.
5. Filed 2 separate Execution Petitions in 2 different Courts in THC, Delhi.
6. Possession of both the shops were Ordered separately in my favour.
7. I took possession of one of the shops by the Order of ADJ but as the bailiff left Union Bank People came and informed me verbally that they had the possession under the Order of CMM Court under Sarfaesi Act.
8. But Union Bank came in my Execution Court after the passage of 4 months with an application under Order 21 Rule 97 to take back the possession from me.
9. Now I have filed an application under Order 7 Rule 11 to reject the application of Union Bank considering it a PLAINT.
10. The Question is, would my application of O7/ R11 be maintainable because after the advent of an application Under Order 21 Rule 97 CPC, the Execution matter changes the colour to a suit.
17 July 2020
The facts posted suggest to be a riddle than a query. The author has posted certain assumptions and presumptions without disclosing the complete facts and the timeline with the stipulation ought to be in the confines set by the author.
This is impossible. Perhaps we would have been better placed had the author posted the material facts as well the timeline leaving it to the experts to make suggestions in their judgment.