- (1.) In this appeal by special leave the appellant has posed a short question for our consideration. It runs as under : "Whether the appellant who claims to be a stranger, occupying decretal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree-holder against the judgment-debtor qua such property can request the Executing Court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI, Rule 99 Code of Civil Procedure ( 'CPC' for short) - The High Court agreeing with the Executing Court has negatived the aforesaid request of the appellant by holding that such stranger to the decree who has put forward his obstruction in the execution proceedings has the only remedy under Order XXI, Rule 99, CPC after his obstruction is first removed and he is dispossessed of the premises. This Court granted special leave to appeal to the appellant under Article 136 of the Constitution of India and granted stay of dispossession by its order dated 17th September 1996. Shri Sanyal, learned senior counsel for the appellant has raised a serious grievance against the aforesaid view of the High Court.
(2.) For resolving the aforesaid controversy between the appellant on the one hand and respondent No. 1 decree-holder on the other a few introductory facts deserve to be noted at the outset.
(3.) Respondent No. 1 filed an Eviction Suit No. 54 of 1988 in relation to six and a half dhurs of the suit land against respondent No. 2 and his mother Rachani Devi. A decree was passed in favour of respondent No. 1 against the judgment-debtor respondent No. 2 in 1988 by the Court of Munsif II,Munger, Respondent No. 1 filed execution proceedings in 1990 against respondent No. 2 judgment-debtor. These proceedings were registered as Execution Case No. 25 of 1990. On 25th April 1991 respondent No. 1 decree-holder obtained warrant for delivery of possession from the Executing Court against respondent No. 2. When the bailiff went on spot to execute the warrant on 28th April 1991 he was resisted by the present appellant as well as his brothers Sitaram Choudhary and Jago Choudhary along with 20-25 persons and because of the resistance offered by them and on account of abuses and throwing of bricks and stones indulged into by them it was impossible to execute the warrant for possession. Under these circumstances the decree-holder by his application dated 6th May 1991 requested that help of magistrate and armed force by made available at his cost for execution of the decree. It appears that the said application remained lingering on the file of Executing Court for number of years and ultimately the Executing Court directed execution of the warrant for possession by affording help of police force to the decree-holder. It was at that stage that the present appellant filed a written application on 22nd January 1996 before the Execting Court to stay operation of the said warrant and to decide his objections. By a rejoinder dated 1st February 1996 respondent No. 1 decree-holder raised the question of maintainability of such an application before handing over actual possession to the decree-holder. The Executing Court without adjucating upon the objections of the appellant on merits and without deciding whether the obstruction or resistance offered by him was legally justified or not dismissed the appellant's application dated 22nd January 1996 by order dated 15th February 1996. The Executing Court took the view that the remedy of the appellant was to move an application under Order XXI, Rule 99, CPC only after he was dispossessed and as that stage was not still reached the request of the appellant to adjudicate his claim could not be entertained. It is this order of the Executing Court which has come to be confirmed by the High court of Judicature at Patna by the impugned order dated 17th May 1996.;