2004 INSC 0876
                                    SUPREME COURT OF INDIA

                                                   Selvaraj

                                                      Vs.

                                                  Neelambal

                                      S.L.P. (C) No. 20933 of 2003

                                  (B. N. Agarwal and H. K. Sema JJ.)

                                                 16.08.2004

                                                   ORDER

1. Heard learned counsel for the parties.

2. Leave granted.

3. This appeal has been filed against the impugned order whereby the High Court has
confirmed order dated 6th June, 2003, whereby petition filed under Order 21, Rules 97 and
98 of the Code of Civil Procedure, 1908, [for short 'the Code'] by the appellant has been
dismissed by the Executing Court without any adjudication whatsoever.

4. Undisputedly, the judgment-debtor has been dispossessed and the decree has been
executed during the pendency of this appeal. It is well settled that when under Order 21
Rules 97 and 98 of the Code, a petition is filed Executing Court cannot dismiss it without any
adjudication. In this regard, it may be stated that under Order 21 Rule 58 of the Code, in
certain circumstances, the Executing Court can dismiss a claim case without any
adjudication, but there is no such provision either under Rule 97 or Rule 98 of Order 21 of
the Code. # This being the position, we are of the view that the Executing Court was not
justified in dismissing the petition filed by the appellant and the High Court committed an
error of jurisdiction in upholding the said order.

5. Accordingly, the appeal is allowed, impugned orders passed by the High Court as well as
the Executing Court are set aside and the matter is remitted to the Executing Court to register
the petition under Order 21 Rules 97 and 98 of the Code, frame issues and adjudicate on the
disputes between the parties after giving opportunity of adducing evidence to them and
thereafter decide the matter in accordance with law.

No costs.

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