Ved Bhushan vs Rajinder Kumar and others

J.V. Gupta, J.—This petition is directed against the order of the District Judge, Sonepat dated 10.10.1987 whereby the order of the Executing Court dismissing the application filed by the objectors for staying the execution of the decree was set aside and the case was sent back to the Executing Court for framing of issue and decision thereafter.

The Petitioner Ved Bhushan filed a suit against the Municipal Committee, Sonepat which was decreed exparte on 14.12.1985. Appeal against the said decree was dismissed on 28.11.1986 and further appeal in this Court was dismissed on 3.1.1987. The decree-holder sought execution of the said decree in which objection petition was filed on behalf of the Respondents Rajinder Kumar and others that they are in lawful, actual and physical possession of the shop Nos 21,22,23 and 24 respectively and they have been paying rent to the Municipal Committee, Sonepat. Since Ved Bhusan, decree-holder threatened them or 22.8.1986 to dispossess them from the shops, they filed the suit for permanent injunction against the Municipal Committee and Ved Bhushan, decree-holder. The said suit was dismissed as withdrawn as it was stated by Ved Bhushan, Defendant therein that the Plaintiffs will not be dispossessed forcibly and will be ejected in due course of law.

According to the objectors, judgment and decree dated 14.12.1985 passed against the Municipal Committee was not binding on them as the said decree was obtained exparte and the objectors were not party to that suit. The said application was contested by the decree-holder. It was pleaded that the decree has already been passed against the Municipal Committee. The objectors arc third parties and, therefore, objectors have no right to obstruct the execution of the decree and, therefore, have no locus standi to file the pesent application. The Execution Court, relying upon the judgment of this Court reported in Harijan Woodworkes Product-cum-Sales Co operative Society Ltd. v. Shrimati Maya Wanti 1984 (1) R. L. R 519. came to the conclusion that the objectors have to deliver the possession in execution of the decree and it is only after the delivery of the possession that they can file application for restoration of the possession. At this stage they have no right to offer resistance or obstruction in the execution of the decree. The Executing Court also found that since the Municipal Committee was in possession of the suit property at the time when it was auctioned in favour of the Plaintiff, the suit was decreed in favour against the Municipal Committee. Since objectors are claiming tenancy under the Municipal Committee, they are bound by the decree. Consequently their objection petition staying the execution petition was dismissed vide order dated 28.11.1986.

Aggrieved with the same, the objectors filed an appeal before the District Judge, Sonepat. A preliminary objection was raised there in that no appeal as such was competent. The objection has been noted by the learned District Judge but no finding has been given therein The learned District Judge took the view that since the objectors are in possession of the shops and have been paying rent to the Municipal Committee Sonepat, for the last several years, they are entitled to raise the objections. Since the Executing Court did not frame any issue on the objections raised in the petition, the appeal was accepted and the case was remanded to the Executing Court for framing of issues and decision thereafter.

Dissatisfied with the same, the decree-holder have filed this petition in this Court. Learned Counsel for the Petitioner submitted that no appeal was maintainable against the order of the Executing Court declining to stay the execution proceedings and, therefore, the order passed in appeal was liable to be set aside on this ground alone. He further submitted that no objections were maintainable on behalf of third parties in view of the Division Bench judgment of this Court reported in Tara Wanti v. Balkishan 1985 H. R. R. 79 and K. A. Prabhakaran v. Kuttiam Prabhakaran 1985 (2) R. C. R. 271.

On the other hand, learned Counsel for the Respondents submitted that objections were maintainable and they will be deemed to have been filed under Order 21 Rule 98 Had that been so, they were appealable and that being so. an appeal was competent under Order 21, Rule 103, CPC In support of his contention, he referred Tahera Sayeed Vs. M. Shanmugam and Others, . and Gopi Mal v. Harichand 1986 (2) A.I.L.L.R. 512.

I have heard the learned Counsel for the parties and gone through the case law cited at the bar.

As regards this Court, the matter stands concluded by Division Bench judgment of this Court reported in 1985 (2) R. C. R 2712 in which it was held that Order XXI Rule 97, C. P. C. provides for an application by the decree holder for removal of resistance offered by any person against the decree-holder obtaining possession of the pro-perty. When such an application is filed by the decree holder all questions (including question relating to right, title or interest in the property) arising between the parties are to be determined by the Executing Court as provided for in Order XXI Rule 101 of the C PC. as amended by the CPC Amendment Act 197 . Rule 90 Order XXI, CPC provides for an application for restoration of possession by any person other than the judgment debtor after he is dispossessed in execution of a decree to which he is not a party.

According to the said judgment, a plain reading of Order XXI Rule 97 make it clear that no application for adjudication of right, title or interest would lie before he is dispossessed in execution of, a decree to which he is not a party. If, however, he is dispossessed, he is given a remedy under Rue 99 Order XXI to apply for restoration of possession to the Executing Court.

To the same effect was the judgment reported in 1985 H. R. R. 792 wherein it was held that a third person cannot file objections against dispossession in execution of a decree unless he surrenders possession to the decree holder.

The judgment relied upon by the learned Counsel for the Respondents reported in 1986 (2) A. I. L. R. 5125 (supra) is a Single Bench judgment and has not noticed the aforesaid judgment of the Division Bench.

It could not be disputed that no appeal as such was competent against the order dismissing the objections filed by the objectors. That being so. no appeal as such was competent and the impugned order passed in appeal was liable to be set aside on this ground alone.

Consequently, this petition succeeds, the impugned order of the District Judge, Sonepat is set aside and that of the Executing Court is restored with costs.

Since further proceedings were stayed at the time of motion hearing, the parties are directed to appear before the Executing Court for further proceedings on 7th March, 1989.