- (1.) THE appellant is a decree -holder, which decree has been upheld upto the first Appellate Court. He filed an application for execution of the decree dated 5.10.2009. The judgment -debtor Banta Singh along with his son Gurdit Singh filed objection under Order 21 Rule 97, Order 21 Rule 35 read with Section 47 of the Code of Civil Procedure and pleaded that the decree cannot be executed for the reason that the appellant -decree -holder had filed a suit for land measuring 2 Kanal 2 Marla comprising in Khasra No.201/2 situated within the Revenue Estate of Village Roranwali. It was stated that the land described in the plaint and the decree does not exist and neither does any superstructure exist thereon. It was specifically pleaded by the objectors that the judgment -debtor and Gurdit Singh are in possession of 2 Kanal 5 Marla of land which is Shamlat Deh and the entire land measuring about 6 Kanals which includes the suit land and the land purchased by the objectors has been amalgamated with no specific boundary number rendering the decree inexecutable. It was further pleaded that the objector Gurdit Singh has constructed his residential house and since he had raised construction thereon, his right would be protected under Section 51 of the Transfer of Property Act and the only relief that the decree -holder can be awarded in execution is in alternate terms by paying the market value of the land.
(2.) THE learned Executing Court dismissed the objections as being frivolous. While in appeal, the appellate Court held that the objections had to be decided after framing all the issues and since the Executing Court had taken a summary route, its findings were erroneous. I have heard the learned counsel for the appellant. Since there is no representation on behalf of the respondents, the Court proceeds to decide the matter.
(3.) UPON perusal of the appeal and after appraising the contentions of the learned counsel for the appellant, I am of the opinion that when objections are preferred by judgment -debtor, it is imperative for the Executing Court to look into them and ascertain for itself as to whether such objections are bona fide or they indicate an obstruction to the execution of a decree. The Executing Court was right in appraising the entire issue whereas the appellate Court has gone wrong in remitting the matter back to the Executing Court. It may be noticed that during the course of the proceedings in the civil suit, the judgment -debtor Banta Singh had filed an application under Order 6 Rule 17 wherein he had taken all the objections which he has now done by filing the objections under Order 21 Rules 97 and 35 read with Section 35 of the CPC. This application was declined and the respondent -Banta Singh did not challenge this at all. If that be so, then evidently, the present objections which have been filed are a result of malafides and an endeavour to obstruct the cause of justice by delaying the execution. Provisions of Order 21 Rule 97, Section 47 and Order 21 Rule 101 ought to read in conjunction. Order 21 Rule 97 envisages that when any application is made under sub -Rule (1) of Order 21 Rule 97, the Court shall proceed to execute upon the decree in accordance with the provisions therein contained, which provisions are enumerated in Order 21 Rules 98 and 101. It states that all questions including the questions relating to right, title or interest in the property arising between the parties to a proceeding in an application under Rule 97 or Rule 99 are to be determined by the Court dealing with the application and not by way of a separate suit for this purpose. Order 21 Rules 97, 98 and 101 of the CPC are extracted herein -below: - "97. Resistance or obstruction to possession of immovable property. - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a 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. (2) Where any application is made under sub -rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. Orders after adjudication. - (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub -rule (2), - (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgmentdebtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment -debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 101. Question to be determined. - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." Similarly the provisions of Section 47 of the CPC extracted below would indicate a similar course to be adopted by a Court i.e. that the matter has to be determined by the Court dealing with such issues and not by way of a separate suit. Section 47 of the CPC reads thus: - "47. Questions to be determined by the Court executing decree. - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) omitted (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. - (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]";