- (1.) This petition under Article 227 of the Constitution of India by M/s. Brij Lal Balwant Rai is directed against the order Annexure P-7 of the District and Sessions Judge Bhatinda, presumably under Part J of Chapter 7 of Volume IV of the Rules and Orders of the Punjab and Haryana High Court, permitting Police help to the decree-holder who seeks delivery of possession over certain property claimed to be under the tenancy of the petitioners.
(2.) The contentions of the petitioner are, that it is a firm carrying on its business in the disputed property, which is a shop situate at Mandi Rampur Phul. This shop belongs to respondent No. 11 who let it out to the petitioner in the year 1967. Respondent No. 11 let out half portion of this shop and mortgaged the other half portion to the petitioner. The said mortgage was subsequently redeemed in the year 1969. The present dispute, therefore, relates to the half portion of this shop said to be under the tenancy of the petitioner. Since Respondent No. 11 was finding it difficult to get the shop vacated from the petitioner, according to the latter, a collusive suit was filed by respondent Nos. 2 to 10 against respondent No. 11 for the partition of the properties inter alia comprising the disputed shop. In the year 1972 the suit was held to be collusive and hence dismissed. Thereafter, an appeal was filed and the same was allowed with the result that the preliminary decree for the property in dispute, in favour of respondent Nos. 2 to 10, was passed in the year 1973, and the said decree became final on February 10, 1975. The petitioner at that stage made an application before the Court of the Additional District Judge, who was hearing the appeal, that they may be made a party to the proceedings. However, the learned District Judge in his order dated November 23, 1973, observed that the petitioner could not be made a party to the proceedings, but 'they would be well justified in objecting to the execution if at all, because they are not parties to the present litigation and in the normal course they would not be bound by the decision in this litigation." In other words the petitioner firm was held entitled to file objections during the execution and resist their dispossession under an independent title claimed by them. After the final decree was prepared the respondent Nos. 2 to 10 sought for the execution against respondent Nos. 11 and the shop in dispute became the subject matter of delivery of possession. When the warrants of possession were issued, obviously the petitioner objected and a Police case was instituted against them for the offences under Sections 186 and 353 of the Indian Penal Code. During proceedings of that case the petitioner very much asserted their right to remain in possession as tenant and further claimed their title in good faith and independent to the title claimed by the respondent No. 11. The petitioners were discharged in that Police case. Thereafter, the impugned order Annexure P/7 was passed by the learned Additional District Judge, Bhatinda, upon a report received from the Subordinate Judge IInd Class, Phul that a cognizable offence was likely to be committed by the petitioner at the time of the execution of the warrant, and as such the Police help was solicited obviously to facilitate the decree-holder to take possession. The learned District Judge has granted the police help and against that order the present petition is filed.
(3.) Case of a person, other than the Judgment-debtor, resisting delivery of possession in execution of a decree, is covered under the provisions of Order XXI Rule 97 of the Code of Civil Procedure of 1908. Rules 97 onwards, fall under the sub-head "Resistance to delivery of possession to decree-holder or purchaser" whenever such resistance or obstruction is there, the decree-holder is to make an application to the Court complaining of such resistance or obstruction (Rule 97). The Court has to fix the case for investigation and the party has to be summoned. If the resistance or obstruction is by a 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 has to make an order dismissing the application filed under Rule 97. If, however, the said person is dispossessed from the immovable property, be can make an application to the Court complaining of such dispossession (Rule 100). Again the Court fixes a date for investigating the matter and if the person dispossessed is a bona fide claimant, he is to be restored the possession (Rule 101). Any party aggrieved of the order made under Rules 98, 99 or 101, may institute a suit to establish the right which he claims to be in possession of the property. It is, therefore, manifest that Rule 97 is the precursor of the subsequent rules. The ball is set rolling by the decree-holder and no sooner resistance or obstruction is caused, a petition is filed against that person in the Court.;