Order 21 rule 97/99 of cpc
swati
(Querist) 18 September 2017
This query is : Resolved
third party is dispossessed in execution of ex parte decree , application under o 21 r 99 is filed. It is brought to the notice of court that decree is passed against deceased as also the suit itself was filed against dead person, yet court refused to set aside exparte decree and restore possession to third party. And framed issues about maintainability of application and about the right of the third party. How to convince court that since decree and suit itself is nullity question of right of third party in property need not be looked into. Possession should be restored and decree should be set aside.
Isaac Gabriel
(Expert) 19 September 2017
Whether death occured before or after the filing of the case.How the dead was served with the notice?
P. Venu
(Expert) 19 September 2017
No meaningful suggestion is possible unless the relevant documents are seen and all the material facts known.
Moxit Shah
(Expert) 19 September 2017
it will be better to make appeal in higher court. execution court will always try to refrain itself from making any comment on decree. execution court will try to follow the decree only
swati
(Querist) 20 September 2017
Suit was filed almost 18 yrs after death of defendant. Record shows pasting of summons was done but third party who was in possession never found any such summons pasted at suit property.
Landlord had knowledge of third party's occupation in suit premises as he was inducted with consent.
My question is that can the scope of inquiry under order 21 rule 99 would be extended to deciding the claim of third party in respect of suit premises when it is proved that the decree passed is a nullity. Having proved that the court should restore the possession to the third party as the decree has been executed wrongly. The legal heirs of deceased are not brought on record. Third party is claiming independent right
