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shambhu pandey (assistant)     22 July 2013

Whether decree challanged through filing mis case u/o 21

After passing of a decree a stranger files a misc case u/o 21 rule 97,99,101 cpc and subsequently admitted by the same trail court for hearing keeping in view that the  decree was collusive and there has been fraud and deception carried out by decree holder by creating fabricated story of eviction.

Is it maintainable??? or the petitionrs/ strangers prays for next proceeding of misc case..what will be next course of action as there is no stay order or appeal is pending before appeallate court..


 2 Replies

niranjan (civil practice)     22 July 2013

An application for obstruction in possession has tobe filed by the decree holder,though person in possession of property can file the application. But in your case you say that you have not filed any execution petition and appeal is pending,in that case,the application by stranger is not maintainable. It is true that he cannot file separate suit and questions are tobe determined in the EP,but this appliation is premature and under apprehension of dispossession. I think you should stay application before the appellate court,to stay that proceedings.

shambhu pandey (assistant)     22 July 2013

There exist excution proceeding but kept in abeyance as the stranger filed claiming themselves as the possession of suit property

and moreover there is no appeal pending as jugt.debtor filed his willingness to vaccate the premises...

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