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Judgment
S.N. Jha, J.—This civil revision is directed against order dated 30.1.97 summarily rejecting the objection filed by the petitioner u/s 47 of the CPC (Misc. case No. 12 of 1996) on Execution Case No. 12 of 1995 in the Court of Subordinate Judge II, Patna.
Counsel for the parties made detailed submissions on the merit of the case. Since the. Court below, did not go into the merit of the case and dismissed the objection as not maintainable, after noticing the submissions advanced on behalf of both the sides, and I am inclined to take view that the objection should be decided on merit, 1 refrain from setting out the facts of the case and the submission of the parties, and from making my own comments thereon.
The Supreme Court has recently held that any cLalm or objection by third party should be adjudicated under Rule 97 of Order XXI of the Code of Civil Procedure. Reference may be made to Bhanwar Lal Vs. Satyanarain and another, and Babulal Vs. Raj Kumar and Others, . In the former case the Supreme Court observed.
Rule 97 envisages that "any person" even including the judgment-debtor irrespective of whether he cLalms derivative title from the judgment-debtor or sets up his own right, title or interest de-hors the judgment, debtor, and he resists execution of a decree, then the Court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not.
The objection filed by the petitioner u/s 47 of the Code in the present case cold and ought to have been treated as one under Order XXI Rule 97 of the Code and decided on merit. Since the Court below has dismissed the objection as not maintainable, in my opinion the matter requires fresh consideration.
This civil revision is, accordingly, allowed. The impugned order dated 30.1.97 is set aside. The Court below is directed to consider the matter afresh on merit in accordance with law.