VINOD K.SHARMA,J. - (1.) THE petitioner has invoked the revisional jurisdiction of this court to challenge the order dated 13.8.1991 passed by the learned Executing Court vide which objections filed by petitioner under section 47 read with Order 21 Rule 97 of the Code of Civil Procedure (for short the Code) have been ordered to be dismissed.
(2.) IN pursuance to the execution of money decree the property belonging to the judgment debtor was ordered to be auctioned. The auction purchaser moved an application under Order 21 Rule 96 of the Code in which the petitioner sought to file reply to oppose the said application. The learned executing court did not permit the petitioner to file reply to the application and treated it to be objection petition under section 47 read with Order 21 Rule 97 of the Code. It was claimed by the petitioner that judgment debtor had only 3/4th share in the property which was auctioned and therefore, till the shares are separated by meets and bounds the auction purchaser cannot claim possession. It was claimed that the application under Order 21 Rule 97 of the Code was not in proper form as it failed to disclose the persons through whom possession was sought to be taken. It was also claimed that there was no decree of eviction against Satish Kumar or the petitioner and therefore, auction purchaser was not entitled to take possession. Auction was also challenged on different grounds.
(3.) LEARNED executing court came to the conclusion that only question which required determination was whether any person other than the judgment debtor could file objection petition under Rule 97 of Order 21 of the Code on the ground that he was not liable to be ejected in execution of the decree obtained by the decree holder. The question was answered as under :- "6. From a bare reading of the aforesaid rules it is clear that if a decree holder is resisted or obstructed by any person in obtaining possession of a property he can make an application under Rule 97 complaining of the resistance or obstruction. The persons causing resistance or obstruction is not entitled under that rule to make an application. If the judgment debtor wants to take any step he can do so under the rules 99 Order 21 but after surrendering the possession. All questions arising between the parties to the proceedings on an application under Rule 97 or Rule 99 the Order 21 C.P.C. and relevant to the adjudication of the application are now required to be determined by the court dealing with the application. However, if the person in possession wants to raise any dispute before surrendering possession he can do so by filing the suit for declaration of his title to the property. During the pendency of the suit he can protet his possession by making an application for temporary injunction. Therefore, any person other than the judgment debtor cannot file the objection petition under rule 97 on the ground that he is not liable to the ejectment in execution of a decree obtained by decree holder against the judgment debtor. Objections by a tenant or by any trespasser or by 3rd person under Order 21 Rule 97 C.P.C. are not maintainable and the court cannot make any inquiry about the objections of said property for raising obstruction and delivering the possession to the auction purchaser. In the above view, I am fortified by the authority "Harijan Wood Works Production and Sales Co-op. Society Limited Jalandhar Societies v. Smt. Maya Wati and others, 1984 Current Law Journal 212. Therefore, the objectors cannot file the objection petition under rule 97 of Order 21 C.P.C.. They can file a separate suit after surrendering the possession. That being so it must be held that the objection petition filed by the objectors is not maintainable. The objection petition deserves dismissal and is dismissed accordingly." ;