Kishan Kumar Kanaujia vs Smt. Ramkesh Gupta

P.N. Bakshi, J.—This revision has been filed against an order, passed by the Addl. District Judge, Allahabad dismissing the objection purporting to have been filed by the applicant under Order 21 Rules 97, 98, 99 and 101 Code of Civil Procedure. A pedigree of the family may be noted:

Madho | Badloo Smt. Jalia | _______________________________________________________________ | | | | Munnu Lal Chunnu Lal Chunni Lal Hori Lal J.D. J.D. J.D. J.D. | | | | | | ______________ Vljay a/a 5 Yrs. | | | | _______________ Kishan Lal Badloo | | | | a/a 12 yrs. a/a 10 yrs | Pawan Kumar Ram Kumar | a/a 9 yrs. a/a 7 yrs. | | ______________________________________________________________ | | | Omprakash Om Shanker Sheo Shanker a/a 21 Yrs. a/a 18 Yrs. a/a 11 years

It appears that suit No. 190 of 1977 was filed by Smt. Ramkesh Gupta wife of Rajendra Prasad Gupta against Munnu Lal, Smt. Jalia widow of Badloo, Chunni Lal, Chunnu Lal, Punnu Lal, Hori Lal for ejectment of the Defendant from house No. 639/G 952 Daryabad Allahabad and for possession by eviction of the Defendants. A decree for Rs. 4880/- as arrears of rent and damages was also claimed. This suit was decreed exparte on 2nd April, 1979; that decree has become final between the parties. The decree holder proceeded in execution of the decree. The instant objection has been filed by the minor Kishan Lal alias Kishan Kumar son of Chunni Lal under Order 21, Rules 97, 98, 99, 101 Code of Civil Procedure. The trial court came to the conclusion that objection by a third party was not maintainable and that it was open to the Plaintiff if he claimed any independent right to file a regular suit. The view of the court below further was that Order 21, Rule 99 CPC which has been introduced by the Amendment Act No. 104 of 1976 w.e.f. 1st Feb. 1977 was applicable to the facts of the present case and the objection, if any, could only be filed after delivery of possession of the property to the decree-holder in pursuance of the decree. This view has been assailed by learned Counsel for the applicant. He has cited a number of cases before me. In particular he has relied upon a Full Bench decision reported in 1924 Allahabad page 495 and a single Judge decision of the Calcutta High Court, reported in 1981 Calcutta page 220. So far as the Allahabad case is concerned that was a decision much prior to the Amendment Act No. 104 of 1976 which introduced a new Rule 99 to Order 21, of the CPC in the following words:

Where any person other than the judgment debtor is dispossessed of Immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof he may make an application to the court complaining such dispossession.

Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

This rule clearly contemplates that an objection by a person other than the judgment-debtor can only be filed after his dispossession from the premises which constitutes the subject matter of the decree. This view is supported also by a full bench decision of the Madhya Pradesh High Court, reported in Smt. Usha Jain and Others Vs. Manmohan Bajaj and Others, , wherein it has been observed that:

The executing court has no jurisdiction to start an inquiry suo moto or at the instance of a third party other than the decree-holder auction-purchaser under Order 21, Rule 97....An inquiry at the instance of a third party, in possession, is contemplated only under Order 21 Rule, 100 (sic) after he was dispossessed and not before it.

Perhaps Rule 100 is a mis-print. The Full Bench was in-fact referring to Rule 99 which I have quoted above.

So far as the Calcutta case is concerned, that is a decision of a single Judge of that Court. It is not very clear from this judgment whether the objection filed therein was by a third party or by a judgment debtor. In any case, even if the above Single Judge decision supports the contention of the applicant, I am afraid it is not possible for me to agree with it. The reasonings given by the M.P. High Court, I may say with respect, are most lucid and convincing and they lay down the correct proposition of law.

It may also be mentioned that the applicant has filed a suit No. 257 of 1981 against the decree-holder in the court of Civil Judge, Allahabad, for a declaration and he had also prayed for ad-interim injunction therein: that suit is still pending. I am informed by learned Counsel for the opp. party that no ad-interim injunction had been granted. The applicant objector is still a minor. He has filed the aforesaid suit not under the guardianship of his father, who obviously is a judgment-debtor, but under the guardian ad-litem appointed by the court. It is always open to the Civil Court to consider the dispute raised by the applicant between him and the decree-holder and to adjudicate upon their rights. The instant objection, however under Order 21, Rule 97 CPC is not maintainable and has been rightly rejected by the trial court.

There is no merit in this revision, which is hereby dismissed with costs. The stay order passed by this Court on 12-5-82 staying dispossession, which was lateron confirmed on 13-8-82, is hereby vacated.