MADAN, J. - (1.) THIS revision petition under Sec. 115 CPC has been preferred before this court against the order, dated 2. 11. 1993, passed by Munsif & Judicial Magistrate Kishangarh Bas in Execution Case No. 4/93 whereby the petitioner's application, dated 11. 10. 1993 to adjudicate over his rights in, repect of the suit land was rejected by the trial court.
(2.) THE facts giving rise to the filing of this revision petition briefly stated are that non-petitioner No. l Hari Singh obtained a compromise decree on 5. 2. 93 against non-petitioner Nos. 2 to 5 (defendants in the suit) in respect of the land in occupation and ownership of the plaintiff-decree holder and subsequent to the suit being decreed in favour of non-petitioner No. l, the decree was put to execution in Execution Case No. 4/93. THE Court bailiff of the Court of Munsif, Kishangad Bas visited the suit land in connection with the execution of the decree on 17. 9. 93 and the petitioner (third party to the decree) who was present at the suit land, objected to the execution of the decree by unlawfully raising obstacles to its execution alleging that he was not bound by the decree and none else except the petitioner would have affected by the execution of the said decree. This objection was raised by the petitioner who was stranger to the decree purposely with a view to frustrate lawful execution of the decree notwithstanding the fact that he has neither land nor any house temporary or permanent near the suit land and hence he has no legal right vested in him to raise such objections. This fact stands fully established from the impugned order, dated 2. 11. 1993, passed by the learned trial court wherein it has been specifically observed that the decree-holder in his application for execution of the decree has stated that the dispute which has been raised by the petitioner herein pertains to a passage over which no party has any independent right to assert its title. It has been further observed by the trial court that the petitioner has no property near or over the suit land on the basis of which it can be inferred that the petitioner has any property over the disputed passage. In these circumstances it was observed by the trial court that in absence of possession over the land in dispute, the petitioner has no right to assert his claim over the same. Consequently, the trial court dismissed the application of the petitioner/objector. In view of unlawful attitude of the petitioner and upon the bailiffs report, the executing court directed for police aid to the bailiff (Amin) to execute the decree. It was at that stage that the petitioner claiming himself to be not bound by the decree and further being seized and possessed of the suit land in his own right, filed an application before the executing court for adjudicating his rights over the suit land. He further disputed the order passed by the executing court in directing police aid to the bailiff in executing the decree without first adjudicating over his rights in the suit land. As a result of the obstructions caused by the petitioner, the decree could not be executed and the bailiff gave his report to that effect to the executing court by narrating the circumstances in which the decree could not be executed. It has been contended in the revision petition on behalf of the petitioner that the petitioner moved an application before the executing court on 11. 10. 93 to stay the execution of the decree with a prayer to adjudicate upon his rights at first instance after inviting applications under 0. 21 R. 97 CPC from decree-holder/non-petitioner No. l. Consequent to the above, the decree holder/non-petitioner No. l, submitted his objections to the aforesaid application of the petitioner before the executing court regarding maintainability of the said application by the objector and the executing court vide its order, dated 2. 11. 1993 as referred to above, rejected the petitioner's application having no force and being no maintainable. It was contended by Shri Agrawal, learned counsel for the petitioner that the remedies which are available to a third party in the event of his being dispossessed from the suit land are (i) an application can be filed under 0. 21 R. 97 CPC after dispossession and (ii) the said third party can assert his title by filing a declaratory suit in the event of his being dispossessed from the suit land. It was further contended by Shri Agrawal that it was not incumbent upon the petitioner to have adopted recourse to the aforesaid remedies available to a petitioner under the law, since the petitioner has an independent right vested in him to move an application before the executing court under 0. 21 R. 97 CPC. It was further contended by Shri Agrawal that enquiry must be conducted by the executing court with regard to the title of the individual concerned who has possession over the suit land and that such enquiry is necessary in both the situations, namely, (a) where a third party claims title independently or (b) by way of force resisting the execution of the decree validly passed. In either of the two events, adequate safeguard must be observed by the executing court before directing the delivery of possession of the suit property to the decree holder. It has been further contended by Shri Agrawal that the petitioner admittedly does not claim derivative right over the suit property under or from the defendants and the right claimed by him is independent through his father Ramphool who was stated to be one of the Khatedars notwithstanding the fact that no title deed or documents to show or establish Khatedar rights of his father, were placed either on the record of the trial court or for perusal of this court from which it could be established that the petitioner is deriving his title through his father Ramphool as alleged. In support of this contention learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the matter of Bhanwar Lal vs. Satyanarain & Anr. (1), wherein the Apex Court has observed as under: "a reading of Order 21 Rule 35 (3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. Admittedly, Satyanarain was not a judgment debtor and that therefore, he is not bound by the decree unless he claims right, title or interest through the judgment debtor, Ramkishan. The person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivate title from the judgment debtor. The court gets power under 0. 21 R. 97 to remove such obstruction or resistance and direct its officer to put the decree holder in possession of the immovable property after conducting enquiry under rule 97. " In my opinion the above judgment of the Apex Court in neither applicable nor attracted 'to the facts of the present case, since the Apex Court has clearly opined in the above case that the person resisting delivery of the possession must be bound by the decree for possession. In other words the resistor must claim derivate title from the judgment debtor. In the present case admittedly the petitioner neither claims nor derivates his rights over the suit property under or through the defendants rather claims his right independent through his father Ramphool who, as stated above, has no furnished any documentary proof in support of his title neither before the trial court nor before this court and hence the question of the petitioner deriving any right or title to the suit land does not arise as there can be no injury in absence of any legal right. In these circumstances it was not necessary for the trial court to conduct enquiry under Rule 97 of 0. 21 C. P. C. with regard to the possession of title of the petitioner. This fact has specifically been noted in the impugned order of the trial court as referred to above. Hence it was not necessary for the decree-holder to get successive writ issued by the court without any direction for police aid as contended by the learned counsel for the petitioner and the trial court was absolutely justified in directing delivery of the possession to the decree-holder through police aid in view of the obstructions caused by the petitioner.
(3.) THE petitioner has also placed reliance upon a judgment of this court in the matter of Ibrahim vs. Phoolchand (2), wherein it was observed by this court as under : "if the Amin reports that delivery of possession is obstructed by any one other than the judgment debtor, the court cannot pass an order directing delivery of possession by use of force unless the decree-holder moves an application under Order 21 Rule 97 and a decision is given in his favour on his application after issuing notice to the person obstructing the delivery of possession. " In my opinion the above authority is also of no assistance to the petitioner in view of the fact that the petitioner has no right or title in respect of the suit land and the dispute pertains only to a passage which is a common thorough fare between adjoining fields over which the petitioner has no independent and exclusive right of use which fact is also established from the perusal of the site-plan and the petitioner admittedly cannot assert any legal right of ownership or title over such common passage. Learned counsel for the respondents while refuting the contentions advanced by the learned counsel for the petitioner has strongly contended that the provisions of Order 21 Rule 97 CPC are directory and not mandatory in nature inasmuch as it was not obligatory upon the executing court to invite any application from the decree-holder under Order 21 Rule 97 CPC once a decree having been lawfully passed it was the bounden duty of the trial court to see that the decree was lawfully executed and the possession of the suit land was handed over to the decree-holder independently of any objections which may be raised by a third party who being a stranger to the decree has no right to cause any obstructions to its lawful execution. It has been further contended by the learned counsel for the respondents that the petitioner being admittedly a stranger to the decree had no legal right vested in him to raise any objections to the execution of the decree lawfully passed by the trial court. It was neither obligatory nor enjoined upon the decree-holder/non-petitioner No. l to have moved any application under O. 21 R. 97 CPC. ;