JANKI DEVI KOHLI Vs. RAMBIHARI MISHRA

JUDGEMENT

(1.) THIS appeal arises out of an objection raised by appellant under Order XXI Rule 97 of the Code of Civil Procedure in execution of decree.

(2.) BRIEF facts of the case are that respondent No. 1 filed a civil suit for eviction against respondent No.2 Prahlad Das. The suit was decreed and order of eviction was passed. After the order was passed, the case was contested up to Supreme Court. Thereafter the decree was sought to be executed. During execution of decree, the appellant, who is the mother of the judgment -debtor, moved an application under Order XXI Rule 97 of the Code of Civil Procedure informing the Court about resistance of the decree. The trial Court adjudicated the application and dismissed the application. The order of dismissal was challenged in appeal. The appellate Court also affirmed the findings of the executing Court.

(3.) FROM here reading of this provision, it is apparent that a holder of decree for possession of immovable property or the purchaser of any such property sold in execution of 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. The language of Rule 97 of Order XXI is clear and unambiguous. No person other than the decree holder and the purchaser in execution has right to file an application under Order XXI Rule 97. Therefore, stranger to decree, may be a subsequent purchaser of the property from the judgment -debtor, is not competent to put an application contending that he has right to resist or obstruct delivery of possession. When a third party not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from the immovable property, and files an application then the question arises whether such application can be entertained. The view of all the High Courts in this respect is settled that the third party has no locus standi to file such objection. This question is adjudicated by the Full Bench of this Court in the case of Usha Jain and others v. Manmohan Bajaj and others, reported in 1989 JLJ 678. The Hon'ble J.S. Verma, J. (as he then was) speaking on behalf of the Bench has held that the language of Rule 97 of Order XXI is clear and unambiguous. After considering the scope of amendment in the Code of Civil Procedure after Amendment Act, 1976, it was held that no enquiry into the title or possession of a third party is contemplated at any rate at his instance either under rules 35 and 36 or rules 95 and 96 of Order 21, CPC when the decree -holder or the auction -purchaser applies for obtaining possession. Subsequently when the decree -holder or auction purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under rule 97 but that provision is merely permissive and not mandatory and it is open to the decree -holder/auction purchaser to apply instead for a fresh warrant of possession. The entire scheme of Order 21 was considered in that case with reference to the relevant earlier decisions including the Full Bench decision of this High Courts and it was pointed out that an enquiry at the instance of a third party in possession was contemplated only under Order 21, Rule 100 after he was dispossessed and not before it.