- (1.) JUDGEMENT This is an objectors application in revision against an order of the learned 3rd Addl. Munsif, Allahabad, rejecting his objection.
(2.) THE brief facts, necessary for appreciating the point in controversy, are as follows: A decree for possession of a house was passed against the judgment-debtor-opposite parties nos. 3 and 4 and in favour of decree-holder. Opposite parties nos. 1 and 2 by the Court of the 3rd Addl. Munsif, Allahabad. On the 31st October, 1966, the Amin went to deliver possession of the said house to the decree-holders-opposite parties nos. 1 and 2 but he was obstructed by Ram Swarup, the objector-applicant, who is the father-in-law of judgment-debtor opposite party no. 2, from doing so. The Amin made a report about the said obstruction to the learned 3rd Addl. Munsif on the 4th November, 1966, and on the following day the decree-holder opposite parties also moved an application to the same effect before the learned 3rd Additional Munsif and prayed for delivery of possession with the aid of the police. The objector-applicant filed objections to the aforesaid application of the Decree-holders opposite parties nos. 1 and 2, and the latter filed their reply thereto. In his objections the objector-applicant also prayed for leave to adduce evidence in support of his objection, but it was refused by the learned 3rd Addl. Munsif by his order dated the 21st November, 1964 on the ground that as there was no provision for a third party to come and apply for adjudication of his rights in execution proceedings unless the decree-holder had taken steps under Order 21, Rule 97 C. P. C., which he had not done in the instant case, the objector-applicant had no right to be heard. Feeling aggrieved by this order the objector-applicant has preferred the aforesaid revision. On behalf of the objector-applicant, his learned counsel, Sri N. D. Ojha, contended that as the refusal of the learned 3rd Addl. Munsif to exercise his jurisdiction and hear the objector-applicants objections was based upon a clear misreading of the application made by the Decree-holder opposite parties nos. 1 and 2 on the 5th November, 1966, his order was manifestly erroneous and liable to be revised. After hearing the learned counsel for the parties, I am satisfied that this contention is correct, for reasons which I shall proceed forthwith to indicate.
(3.) NOW Order 21, Rules 97 and 99 occur in the Code of Civil Procedure under the heading Resistance to delivery of possession to decree-holder or the purchaser, and the said rules, in so far as they are material for the present purposes, read thus: Order 21, Rule 97, C. P. C. "(1) where the holder of a decree for the possession of immoveable property . . . . . is resisted or obstructed by any person in obtaining possession of property he may make an application to the court complaining of such resistance or obstruction. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same." Order 21 Rule 99 C. P. C. 99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application." ;