ARAWAL, C. J. - (1.) THIS revision petition filed under Sec. 115 of the Code of Civil Procedure by Babu Lal (a stranger to the decree), seeks setting aside of the order dated 15. 12. 1992 alleged to have been passed ex-parte against him and in favour of the decree-holders. THIS has been claimed through the application dated 17. 12. 1992. The order challenged in the revision is dated 31. 1. 1994.
(2.) BRIEFLY, deceased decree-holder Shyam Lal Saxena filed a suit for specific perfromance of an agreement to sale against deceased Smt. Bhoori and deceased Prabhu Lal on 5. 10. 1966. The suit was decreed on 18. 10. 73 in pursuance to which the court executed the sale-deed on 9. 12. 80, which was registered on 28. 1. 1981. This was the suit in respect of a house situated in Ballabh Bari, Kota. The decree for specific perfromance became final. Thereafter, the decree holder applied for police aid for getting possession in pursuance to the decree. Police aid was given by the order of the court below. Learned counsel for the petitioner took us through the entire history of the case and submitted that the order dated 15. 12. 92 had been illegally passed in favour of the decree-holder in as much as Babu Lal who was the contestant of the application for execution was not given any notice. He urged that the order dated 15. 12. 92 being against the principles of natural justice, was liable to be set aside on that ground. For staying operation of the order dated 15. 12. 92, the petitioner had applied through an application on 17. 12. 92. The court below holding that Babu Lal was entitled to hearing, hence the order passed on 15. 12. 92 behind his back was liable to be set aside. On 2. 2. 1993 an application was moved by the decree holder for being given possession of the house which he had purchased through an agreement and for which decree for specific perfromance had been passed. Enlarging the controversy involved in the application for delivery of possession made by the decree holder, the petitioner alleged that Saravan Kumar Punjabi, Shyam Sunder Punjabi and Babu Lal Punjabi were living in the house along with their sons. The decree holder had applied for possession through police aid. This application was contested by the petitioner saying that as no decree for specific perfromance had been passed, there was no decree or order, which could be executed against him. What happened in the case -was that in the application filed by the decree holder for possession, a Nazir was appointed by the Court. He submitted his report on 25. 7. 87 mentioning about being obstructed to in the possession of Shravan Kumar, who was the man of the petitioner. Vide order dated 31. 1. 94, the Munsif, Kota dismissed the application of the petitioner filed on 17. 12. 92 and upheld the order dated 15. 12. 92. The order dated 15. 12. 92 was the order passed ex-parte in favour of the decree holder by which the Munsif held that police help should be given to the respondents. Having heard counsel for the parties, I am of the opinion that as against the impugned order, no revision will lie as the order will not be final between the parties and also being inter locutory in nature. The revision is also liable to be dismissed on the ground that no jurisdictional error was committed by the court below.
(3.) CONSIDERING the scope of Order 21 Rule 97 of the Code of Civil Procedure, the Allahabad High Court in Nisar Ahmad v/s Addl. Distt. Judge,azamgarh (1) held that a person like the petitioner, who was not a judgment-debtor, had to surrender possession to the decree holder and thereafter may initiate such proceedings as was advised. In the present case, admittedly, possession of the house was not delivered by petitioner Babu Lai, hence, the objection filed was not maintainable. During the course of argument, the petitioner stated that unless the order for dis-possession was passed, no order could be passed under Order 21 Rule 97 CPC. The question is as to who can apply under Order 21 Rule 97 CPC. It is the decree holder complaining resistence or obstruction, can apply under Order 21 Rule 97 CPC. It is he, who can take recourse under the aforesaid provision, In a Full Bench decision in Usha Vs. Manmohan (2), the view taken was that where in a decree for possession a third party objects to execution, the executing Court is not bound to stay its hands till full investigation into the objections have been made. The third party could not in any manner be thereby deprived of its remedy to protect his possession and have his title judicially investigated prior to his dispossession; he can institute a separate suit for declaration of his title and chaining therein a temporary injunction to protect his possession. In the instant case, the adjudication of rights has not reached to that level. In Rajendra Kumar Vs. III Addl. District Judge, Moradabad (3), it was held that a third person neither being a decree-holder nor auction-purchaser, had no right to make any objection or application. Hence, an application or objection filed by the petitioner was not maintainable. Order 97 applies only when the decree holder having obtained a general order of the character specified in Rule 96, meets with resistance from any particular person. Therefore, the decree holder could lawfully get police aid for getting possession of the house which was obtained by him in the suit for specific perfromance filed in 1966. It is a lamentable state of affairs that litigations in this country take too long to come to termination. While considering the scope of section 115 CPC, the Supreme Court in Keshardeo Vs. Radha Kishan (4) agreed with the Privy Council's judgment reported in Venkataigri Ayyanagar vs Hindu Religious Endowments Boards, Madras (5) in which it was said: - "section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the cases is one in which the court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the has not acted illegally, the is, in breach of some provisions of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected* the ultimate decision. If the High Court is satisfied on thosse three matters, it has no power to interferes because it differs, however profoundly, from the conclusions of the subordinate court on questions of fact of law. " ;