J.V.GUPTA,J - (1.) THIS revision is directed against the order of the executing court dated 23rd August, 1988 whereby objections filed by the petitioner Smt. Usha Rani have been dismissed.
(2.) RAJ Kumar, landlord, obtained an ex-parte order of eviction against his tenant Manohar Lal, vide orders dated 16th July, 1985. When he sought execution of the said order by filing an execution application dated 8th October, 1985, objections were filed thereto on behalf of Smt. Usha Rani alleging that Raj Kumar, decree-holder, was merely a landlord of the premises in dispute whereas his father Sardari Lal was the owner. Sardari Lal had sold the disputed house to Baldev Raj vide sale deed dated 8th October, 1984, whom the possession had been delivered by Sardari Lal and his tenant Manohar Lal. Later on said Baldev Raj sold the said property to her vide sale deed dated 30th October, 1985. Thus, she claimed herself to be the onwer-in-possession of the house in dispute who could not be dispossessed in execution of the ejectment order obtained by Raj Kumar against Manohar Lal. This objection petition was resisted by the decree-holder. On the pleadings of the parties, the executing court framed the following issues :- 1. Whether the objector is the owner in possession of the property in dispute as alleged ? OPO 2. Whether Sardari Lal has not been heard for the last more than 7 years as alleged ? OPR 3. Whether the objection petition is not maintainable in the present form ? OPR 4. Relief. The executing court after discussing the entire evidence came to the conclusion under Issue Nos. 1 and 2 that Sardari Lal had not been heard for the last more than 20 years and was, therefore, presumed to have died because his whereabouts were not known for a long period. No arguments were advanced under Issue Nos. 3 on behalf of the decree-holder and, so it was decided in favour of the objector and against the decree-holder. Consequently, the executing court directed the objector Smt. Usha Rani to restore possession of the disputed property to the decree-holder. Learned counsel for the petitioner submitted that the whole approach of the executing court was wrong and illegal. There was no presumption of the date of death and, therefore, it has been wrongly held that Sardari Lal was not alive on 8th October, 1984 to execute the sale deed Ex. OW 2/B. The presumption reside by the executing court was wholly wrong and illegal. In support of this contention he referred to Mehan v. Kishi, 1969 PLR 25. It was further submitted that the decree-holder should have filed a civil suit for declaration of the sale deed being invalid and unless such a declaration was sought she could not be ejected in execution of the decree against Manohar Lal. Moreover, argued learned counsel, complicated questions of title were involved which could not be adjudicated upon by the executing court. In any case, no direction could be given to restore the possession to the decree-holder, as she never got the possession in execution of the decree which he should be directed to restore to the decree-holder. On the other hand, learned counsel for the respondent submitted that the impugned order was appealable having been passed under Order 21 Rule 97, Code of Civil Procedure, and since no appeal had been filed, the revision has to be dismissed on this ground alone. In any case argued the learned counsel, the objector being a third person should surrender the possession first before raising any objection to the execution, in view of the Division Bench judgment of this Court in Harijan Wood Workers Production-cum-style Co-operative Society Ltd v. Smt. Maya Wati, AIR 1985 Pb and Haryana 181. It was lastly argued that the entire evidence had been produced by the parties and since it was found as a fact that the sale deed said to have been executed by Sardari Lal in faovur of Baldev Raj was a fictitions document, no valid title passed on to Smt. Usha Rani subsequently and she was liable to be evicted from the demised premises.
(3.) AFTER hearing learned counsel for the parties I am of the considered view that on the facts and circumstances of the case, the only proper remedy for the objector was to file a civil suit for getting her title decided in the suit property by a civil court of competent jurisdiction. Whether the objection petition, as such, was maintainable or not was never agitated before the executing court on behalf of the decree-holder, though there was a specific issue framed by the executing court in that behalf. That being so, it could not be successfully argued on behalf of the decree-holder that the objection petition was decided under Order 21 Rule 97, Code of Civil Procedure and hence it was appealable. Since the findings of the executing court could not be challenged by the petitioner in revisional jurisdiction of this court, the order of the executing court will be subject to the result of the Suit, if any.;