GOKUL PRASAD Vs. CHUNNILAL

JUDGEMENT

(1.) When the decree passed in favour of respondent No. I/decree holder was put into execution, the present applicant made an application under Rules 97/98 of Order 21 of the Code of Civil Procedure pleading inter-alia that he being the third party to the decree and as he is in possession of the property in his own rights, in execution of the said decree passed against respondent No. 2 the present applicant could not be dispossessed. The decree holder/respondent No.1 contested the said application. The trial Court rejected the application observing that an application under Rules 97/98 of Order 21 of the Code of Civil Procedure was not maintainable at the instance of a third party who was still in possession of the property. It accordingly rejected the application. Being aggrieved by the said rejection the objector has come to this Court under Section 115 of the Code of Civil Procedure.

(2.) Shri H.B. Agrawal, learned counsel for the applicant, submits that the rejection of the application on the ground of maintainability was per se illegal because such an application is always maintainable at the instance of the third party. He also submits that the earlier decree was passed against respondent No.2 in a suit between the landlord and the tenant and therefore, said decree would not assist the decree holder when the applicant was raising the objections relating to the title over the property.

(3.) On the other hand, Shri Ajay Shri- vastava, learned counsel for respondent No. 1, submits that though the application of the present objector was rejected as not maintainable but even otherwise the said application was not maintainable in view of the Rule 102 of Order 21 of the Code of Civil Procedure. According to him the property in dispute was purchased by present objector after the suit was already instituted by the decree-holder against respondent No.2 tenant for his eviction. He further submits that the findings recorded in the said suit would not only bind the tenant but would also bind his successor who is claiming through the tenant. He submits that the application filed by the present applicant/objector was misconceived and it now even deserves to be rejected.