HAR VILAS Vs. MAHENDRA NATH

JUDGEMENT

(1.) Mahendra Nath, Respondent 1, filed a suit for specific performance of an agreement of sale dated 17-9-1974. impleading Respondents 2 to 5 as defendants. The suit, registered as Original Suit No. 72 of 1975 in the Court of the Civil Judge, Mainpur, was decreed on 4-3-1978. The decree is for specific performance of the agreement dated 17-9-1974 and for possession over the land in suit. This decree has achieved a finality. 1975.

(2.) The decree was put to execution. When the warrant for delivery of possession was sought to be executed, the appellant offered resistance claiming to be in possession of the suit property and not bound by the decree. He preferred a petition purporting to be under Rules 35 and 97 of Order 21 of the Code of Civil Procedure before the executing court. The objection was dismissed as not maintainable. The appellant preferred a revision to the High Court which too has been dismissed following a Full Bench decision of the High Court of Madhya Pradesh in Usha Jain v. Manmohan Bajaj, 1980 AIR(MP) 146: 1980 MPLJ 429 (FB)].

(3.) The view taken by the High Court of Madhya Pradesh in the above noted decision is that during the execution of decree for possession, no inquiry into the title or the possession of a third party is contemplated, at any rate at his instance, either under Rules 35 and 36 or Rules 95 and 96 of Order 21 of the Code of Civil Procedure. It is either for the decree-holder to make an application under Rule 97, which provision is only permissible and not mandatory, or for the third party in possession to have recourse to Order 21 Rule 100 of the Code of Civil Procedure which remedy shall be available only after he has been dispossessed and not before.