Joginder Kaur vs Yashoda Devi and others

The landlord-revision-petitioner obtained an ejectment order against Manmohan Singh respondent No. 2, tenant in respect of the shop in question on 4-8-1981. Execution petition was filed for delivery of possession on 31-3-1982 and warrants of possession were duly issued. Bailiff went to the spot and reported on 8-6-1982 that the judgment-debtor was not in possession of the demised premises and it was Smt. Yashoda Devi respondent No. I who was in possession thereof. Smt. Yashoda Devi respondent No.1 filed an objection-petition on the next day, alleging that the eviction order obtained by the decree-holder was a collusive one and that she was in possession of the premises as an owner and was, thus, not bound by the eviction order. The decree-holder filed a reply that earlier respondent No. 1 had filed a suit regarding the property in dispute and that suit was ultimately dismissed by the Additional District Judge on 28-10-1980. Out of the pleadings of the parties, the following issues were framed by the executing Court:

Whether Yashoda Devi is the owner in possession of the property in dispute?

OP Objector

Whether the objection-petition is maintainable?

OP Objector

Whether the earlier suit by the objector has already been dismissed? If so, to what effect?

OP DH

Issues 1 and 3 were discussed together. The executing Court came to the conclusion that no evidence had been led either by the objector or the decree-holder if the shop in question was a part of either property unit No. 268 or 269 1/2. It was further found that there was no other evidence to prove the ownership of Smt. Yashoda Devi. Both the issues were, therefore, decided against the objector. Issue No. 1 concerned with the maintainability of the execution petition. The executing Court held that Smt. Yashoda Devi was found to be in possession of the demised premises and she could not be dispossessed therefrom under the impugned eviction order to which she was not a party. Thus, the objection-petition was accepted and it was held that the decree-holder was not entitled to get possession from the objector under the present ejectment order.

The landlord-decree-holder has challenged the order of the executing Court vide this revision petition.

The learned counsel for the revision-petitioner has argued that no objection was maintainable against delivery of possession of the property for which ejectment order had been passed against the judgment-debtor. It has further been argued that possession of the objection-petitioner respondent No. 1 was not admitted by the decree-holder.

The objection-petition was filed under O.21, R. 58 of the Civil P. C., but this rule is applicable only when the property is sought to be attached in execution of a decree and the ground of objection is that such property is not liable to attachment. In such a situation, the executing Court is called upon to adjudicate upon the claim or objection in accordance with the provisions contained therein. Any order passed under O.21, R. 58 has the same force and is subject to the same conditions as to appeal or otherwise as if it were a decree. There was no question of attachment in this case and therefore, this objection-petition under Order 21, Rule 58 of the Civil P. C. was not maintainable. If at all the objector-respondent No. 1 wanted to file objections, claiming the disputed property to be her own, she could do so under Rule 97 of Order 21 of the Civil P. C. and that, too, only when an application is made by the decree-holder under sub-rule (1) of Rule 97 of Order21 of the Civil P. C. and the Court proceeds to adjudicate upon the application in accordance with the provisions contained in the subsequent rules. Sub-rule (1) of Rule 97 is attracted only when the holder of a decree for possession of immovable property or purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property and he makes an application to the Court, complaining of such resistence or obstruction. In this case, there is no report that the delivery of possession was resisted or obstructed. There is the only report of the bailiff that Smt. Yashoda Devi was in possession and the judgment-debtor was not in possession of the demised premises.

In this view of the matter, this revision petition is accepted and the order of the executing Court is set aside. The parties to bear their own costs. The executing Court is directed to proceed with the execution petition according to law.

Petition allowed.