Gurdial Singh vs Ram Pal and others

S.S. Kang, J.

This revision petition is directed against the order dated March 24, 1984, of the learned Additional Senior Sub Judge, Mansa, staying the proceedings in execution application filed under section 151 of the Civil Procedure Code filed by Gurdial Singh, petitioner, and declining to dismiss an application filed by Brij Lal Yadav, respondent to the present proceedings.

Gurdial Singh, the present petitioner, obtained a decree for possession of land measuring 3 Kanals 4 marlas comprised in Khasra No. 996 min, situated at Mansa Kalan against Ram Pal and others. The appeal of the defendants was dismissed by the Appellate Court on February 22, 1983, and the judgment and decree has become final.

Gurdial Singh filed an application for execution of the decree on October 5, 1983. The warrants of possession against the judgmentdebtors were issued. Shri Lachhman Singh, Kanungo, along with other officials went to the site to deliver possession to Gurdial Singh. He found that there existed a cotton factory on the land in dispute. The door of the factory was closed from inside. The gateman refused entry to the revenue officials and the decree holder. Lachhman Singh, Kanungo, made a report to the Executing Court mentioning these facts and praying that orders be passed for uprooting the machinery and demolishing the factory building and also for providing police help. Gurdial Singh had not yet filed any application for reissuance of the warrants of possession by demolishing the factory building et cetera or for providing police help, when Brij Lal Yadav respondent, moved an application under section 151, Code of Civil Procedure, on January 6, 1984, resisting the delivery of possession from the land, in dispute, under the warrant of possession issued in the execution proceedings instituted by Gurdial Singh, decreeholder. In the application he pleaded that he was in adverse possession of the disputed property for the last more than 15 years. He was not in any way connected with the judgmentdebtors and was not resisting the delivery of possession on their behalf. He was independently owner of the disputed property and had a right to resist the delivery of possession of the cotton factory, wherein heavy machinery has been installed. He prayed that he should not be dispossessed.

Gurdial Singh put in a reply to this application and contended that Brij Lal Yadav, applicant, had no independent status. His services had been procured to create obstruction in the execution proceedings. The applicant was not in possession of the disputed property much less for the last 15 years. He had no right to resist the delivery of possession. It was prayed that the application be dismissed.

The executing Court, held that the application filed by Brij Lal Yadav could not be dismissed summarily without holding an inquiry into his claim for being in possession of the property, in dispute. The applicant was not one of the judgmentdebtors. He had made an independent claim for ownership to the property, in dispute. The learned judge had stayed the execution proceedings till the decision of the application of Brij Lal Yadav.

The application filed by Brij Lal Yadav is wholly misconceived. The learned Executing Court seems to be oblivious to the amendments brought about in the Civil Procedure Code in 1973 and 1976. In the present state of law, a third person, who is not a party to the decree, causing resistance or obstruction to the execution of the decree for possession cannot make an application to the executing Court for staying his dispossession till the determination of his claim for ownership or possession to the property, in dispute. He has first to surrender possession. Interpreting rules 97 and 99 of Order 21, Civil Procedure Code, a Division Bench of this Court in Harijan Wood Workers ProductioncumSales Cooperative Society, Limited, Jullundur City v. Shrimati Maya Wati and another, 1984 Current Law Journal 212 : 1984(2) R.C.R.(Rent) 331, observed :

"From a bare reading of the aforesaid rule, it is clear that if a decreeholder is resisted or obstructed by any person in obtaining possession of property, he can make an application under Rule 97 complaining of the resistance or obstruction. The person causing resistance or obstruction is not entitled under that rule to make an application. However, if the decreeholder makes the necessary application, the person causing the resistance or obstruction is entitled to defend his conduct. In other words at that stage he is entitled to be in defensive but cannot take an offensive step. In case he wants to take such a step he can do so under rule 99 but after surrendering possession. The rule has been framed to protect the decreeholder from frivolous claims by third persons. All questions arising between the parties to the proceedings, on an application under Rule 97 or Rule 99 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 a suit for declaration of his title to the property. During the pendency of the suit, he can protect his possession by making an application for temporary injunction. The Court will dispose of the application on merits and grant relief of temporary injunction if the plaintiff is able to establish prima facie strong case in his favour. Therefore, we are of the opinion that any person other than the judgment debtor cannot file an objection petition under Rule 97 on the ground that he is not liable to ejectment in execution of a decree obtained by decreeholder against the judgmentdebtor." (Emphasis supplied)

In the face of this clear exposition of law, the learned trial Judge could not rely upon the decision reported in Bhagwan Singh v. State, 1956 Madhya Bharat Law Journal 899, which was given before the amendment of the Code of Civil Procedure or Smt. Maya Wati''s case (supra). It seems it was not brought to the notice of the learned Executing Court that the decision in Bhagwan Singh''s case (supra) had been overruled by a Full Bench of that Court in Smt. Usha Jain and others v. Manmohan Bajaj and others, AIR 1980 Madhya Pradesh 146.

Shri R.S. Bindra, the learned counsel for the respondent, Brij Lal Yadav, tried to contend that the application by the respondent had not been filed under rule 97, Order 21, but under section 151, Code of Civil Procedure. The argument is patently without merit. Complete procedure for execution of decrees has been devised under Order 21 of the Civil Procedure Code. If a third person cannot make any application under any of the provisions of the rules contained in Order 21, then he cannot seek the same relief by an application under section 151, Civil Procedure Code. The ratio of the Division Bench decision in Smt. Maya Wati''s case (supra) equally applies to an application under section 151 of the Code of Civil Procedure. By changing the label of the application, the spirit of Order 21, Civil Procedure Code, cannot be defeated. The Division Bench quoted with approval the observations of the Full Bench of the Madhya Pradesh High Court in Smt. Usha Jain''s case (supra) that the Executing Court had no jurisdiction to start an inquiry at the instance of a third party other than a decreeholder. The application of Brij Lal Yadav was wholly misconceived and was palpably incompetent. The learned Executing Court has acted with material irregularity in the exercise of its jurisdiction by entertaining that application and to adjudicate thereon.

For the foregoing reasons, the revision petition is allowed and the order dated March 24, 1984, is set aside with costs. Counsel fee is assessed at Rs. 200/.