Nanu Mal vs Smt. Manju Varshney and Another

H.C. Mital, J.—Heard Sri S.C. Dwivedi for the revisionist and Sri S.U. Khan for the opposite party.

This is a revision against rejection of an application u/s 47 Code of Criminal Procedure and Order 21 Rules 58, 97 and 103 of the Civil Procedure Code, all combined. The revisionist came with the allegations that he was a tenant of Smt. Neeru Sharma, who had transferred the property to Smt. Manju Varshney, who after transfer in her favour, filed S.C.C. suit No. 59 of 1988 on 15-11-88 against Bishambhar Singh for arrears of rent and eviction which was decreed ex-parte on 26-9-89 and for its execution she moved an application, being execution case No. 1 of 1990. The present revisionist filed the objection in the execution application alleging that he had earlier filed Suit No. 188 of 1988 Nanumal v. Chitranjan Varshney and Ors., including Smt. Manju Varshney, in the court of Munsif Koil, Aligarh on 28-4-88 wherein an interim order was also issued that the parties to the suit shall maintain status quo. That suit, it is alleged, was for injunction with the allegation that he was tenant in the accommodation in suit on behalf of Smt. Neeru Sharma at the rate of Rs. 65/- per mont and after the transfer by Smt. Neeru Sharma he had become tenant of the shop of Smt. Manju Sharma, who later on started harassing him and even got demolished a Balakhana, a portion of the accommodation. In that suit on the application for temporary injunction an order was rassed directing the parties to maintain status quo. In that suit there was no reference to the present suit which ultimately terminated in the passing of the ex-parte decree against Bisharaber Shiga. Even subsequent to the passing of the ex-parte decree no amendment was sought in the suit giving reference to the suit of ejectment filed subsequent to the start of suit No. 188 of 1988.

From the above facts it is clear that Smt. Manju Varshney was not directed not proceed with any suit for ejectment against her tenant Bishambar Singh and to obtain decision thereon. The interim order only directed her not to demolish any portion of the accommodation but to maintain status quo.

Admittedly the present revisionist is neither a judgment debtor nor any person claiming under the judgment debtor and, therefore, the objection u/s 47 Code of Criminal Procedure has rightly been held not maintainable. As regards the present impugned order rejecting the petition under Order 21 Rule 97 Code of Criminal Procedure also prima facie any person not claiming from and on behalf of the decree-holder cannot maintain such a petition. Order 21 Rule 97 reads as under:

Registance or obstruction to possession of immovable property--

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistence or obstruction.

(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with, the provisions herein contained.

From the above it is clear that this rule comes into play the moment the holder of the decree is obstructed in obtaining possession of the property covered by it. On behalf of the revisionist reliance has also been placed on a decision of the Andhra Pradesh High Court in the case of Tahera Sayeed Vs. M. Shanmugam and Others, where it has been held that even a third party can move a petition under Order 21 Rule 97 Code of Criminal Procedure. However, the view of this Court is consistent that only decree holder or any person claiming under him can avail of the benefit of this petition as has also been held in the case of K.K. Kanaujia v. Smt. Ram Kesh Gupta AIR 1983 All 256.

Prima facie there is no force in this revision and accordingly it is dismissed in limine.

Copies of this order may be supplied to the counsel for the parties within four days on payment of usual copying charges.