Jeet Singh and Others vs Mohan Singh and Others

J.V. Gupta, C.J.—This will also dispose of Civil Revision No. 451 of 1990 as the question involved is common in both the petitions.

Mohan Singh filed two suits for possession against Model Line Colonisers and Inderjit Singh Gujral, Managing Director of Colonisers. Both the suits were decreed up to the High Court. Two execution applications were filed in which warrants of possession have been issued. When the Bailiff reached the spot, the petitioners (objectors) resisted the possession as they were in possession of the suit property and bad constructed their houses thereon. The decree holder moved an application under Order 21, Rule 97, C.P.C. complaining of such resistence or obstruction and sought police help. The objectors then made an application dated 9th June, 1989, for setting aside the said order granting police help and for withdrawal of warrants of possession. The said application was resisted on behalf of the decree-holder. The Executing Court found that the application was without any merit as their names had not been recorded in the Khasra giraawari, a copy of which was placed on the record by the decree-holder. According to the Executing Court, the judgment debtors have lost up to High Court and now the decree holder is applying for the delivery of the possession to which he is entitled Since there was a report of the Kanungo that there was apprehension of breach of peace, the possession could be delivered to the decree-holder with the help of police. Consequently the, objection petition was dismissed.

Learned counsel for the petitioners submitted that the Executing Court could not dismiss the said objections summarily and the same was to be decided on merits after framing the issues and allowing the parties to lead evidence. According to the learned counsel, when such application was filed under Sub-rule (1) of Rule 97 of Order 21 by the decree-holder, the same was to be adjudicated upon in accordance with the provisions provided therein. Since no such procedure was followed and the objectors were never given an opportunity to prove their case, the order was liable to be set aside.

On the other hand, learned counsel for the decree-holder submitted that these are the delaying tactics. This very plea was set up by the decree-holder that they are in possession of the suit land, but failed to prove the same up to the High Court and now the objectors have taken the same plea to further delay the execution proceedings. According to the learned counsel, even in the civil suit filed by the objectors, they failed to obtain interim order in their favour.

After hearing the learned counsel for the parties, I am of the considered view that the Executing Court has failed to follow the procedure as provided under Order 21, Rule 98, CPC It is provided in Rule 101 that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Under Rule 103 it has been further provided that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions us to an appeal or otherwise as if it was a decree. Thus, keeping in view the said provisions of the Code, the application filed by the decree holder for providing police help and the objections filed thereto by the objectors should be decided in accordance with the said provisions.

Consequently, this petition succeeds; the impugned order is set aside with the directions that the application filed by the decree-holder under Order 21, Rule 97 of the Code of Civil Procedure, seeking police help on account of the resistence made by the objectors be decided in accordance with law, as observed earlier.

The parties have been directed to appear before the Executing Court on August 22, 1990.

It is further directed that the parties will lead evidence at their own responsibility for which one opportunity be given to each party. However, dasti summons may be gives as contemplated under Order 16, Rule 7-A, CPC if desired. The executing Court will ensure that the proceedings are not allowed to be delayed by the objectors unnecessarily.

The order dated 9-6-1989 will remain suspended meanwhile.