Shmt. Kamla and others vs Surinder Kumar and others

P.C. Pandit, J.—Shrimati Kamla Devi and others, petitioners, made an application u/s 13 of the East Punjab Urban Rent Restriction Act 1949, against Shri Vishnu Flour, Dal and Oil Mills, Ludhiana, respondent No. 2, and their proprietor Shri Kainthli Ram, respondent No. 3 for their eviction from the shop in dispute situated in Ludhiana. In May 1967, this application was granted and an order of eviction was passed against both the respondents. During the course of the execution proceedings regarding this eviction order, Surinder Kumar, respondent No. l made an application under Order 21 rules 97, 98 and 99, Civil Procedure Code, alleging that the ejectment order could not be executed against him. He claimed himself to be in possession of the suit property as a co-sharer of the same. It was further pleaded by him that a suit for partition between the parties was pending before a Subordinate Judge at Ludhiana. As he was in possession of the shop in question in his own right, he was not liable to eviction in execution of the order obtained by the petitioners against respondents Nos. 2 and 3.

This application was contested by the decree-holders mainly on the ground that an application of that kind was not maintainable, because such an application could be made only by a decree-holder or the purchaser of an immovable property sold in execution of a decree. This contention of the decree-holders was repelled by the Court below by observing that the warrant of possession of the shop in dispute was issued against the judgment debtors and respondent No. 1, alleging himself to be interested in the matter and being in possession of the shop, made the said application, and that would certainly amount to obstructing the delivery of possession and under Order 21 Rule 99, Civil Procedure Code, the court could dispossess him only after hearing him. The said provision, according to the Court below, was not m ant for the decree-holders only. The Court further held that it would be proper if the execution proceedings were deferred till the parties got a verdict in the partition suit regarding the joint nature or otherwise of the property in dispute. As a result, the application of respondent No. 1 was accepted and the execution Application filed by the petitioners was dismissed as unsatisfied. The Court also remarked that if the suit was decided in favour of the decree-holders and the property fell to their share, they would be at liberty to file a fresh execution application. Against this order, the present revision petition has been filed by the decree-holders.

It is common ground that a partition suit is pending between the parties in respect of various properties including the one in dispute. It is further admitted that at present respondent No. 1 is in possession of the shop in question. The main question for decision in this case is whether, under these circumstances, respondent No. 1 could make an application under order 21 rules 97, 98 and 99, Civil Procedure Code, when in execution of the ejectment decree obtained by the petitioners against respondents Nos. 2 and 3, they got a warrant of possession against the judgment-debtors regarding the property in dispute.

Rules 97, 98 and 99 of Order 21, Civil Procedure Code, are in these terms :

97(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 resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

''98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. Such detention shall be at the public expense and the person at whose instance the detention is ordered shall not be required to pay subsistence allowance.

(As applicable to Punjab State) 99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

A bare reading of these rules would show that they have to be read together. Under rule 97, it was only the holder of a decree for possession of immovable property or the purchaser of such a property in Court auction, who could take proceedings, when he was resisted or obstructed by any person in obtaining possession of the property. The Court would then fix some date for making investigation into the matter and shall summon the person against whom the application was made. Under rule 98, where during the investigation of the matter, the Court was satisfied that the resistance or obstruction was occasioned without any just cause either by the judgment-debtor or by some other person at his instigation, it would direct the applicant to be put into possession of the property. If he was still resisted or obstructed, then the Court would order the judgment-debtor or the person, who was acting at his instigation, to be detained in civil prison. According to rule 99, where the Court was satisfied that the resistance or obstruction was made by a person who was claiming in good faith to be in possession of the. property either on his own account or on account of some person other than the judgment-debtor, then the Court would pass an order dismissing the application.

It would thus be seen that in the present case, it were only the decree-holders who could make an application to the Court complaining of resistance or obstruction and then that matter could be enquired into by the Court. Respondent No. 1 could not, therefore, file such an application. Learned Counsel appearing for him could not cite any authority in support of the proposition that, under these circumstances, even respondent No:'' 1 could move the Court under the above provisions. The Court below was, consequently, in error in holding that the said provisions were not for the decree-holders only and the application by respondent No. 1 was maintainable in law.

The result is that this revision petition succeeds and the order of the Court below dismissing the execution application is set aside. There will, however, be no order as to costs.