BALUBHAI DAHYABHAI SHROFF Vs. GOVINDBHAI DAYALBHAI

JUDGEMENT

(1.) The opponent filed a Darkhast for the possession of half the share of the property which he had purchased in the execution of a money decree. But subsequently he gave another application for the possession of the whole share in the property namely Survey No. 97 on the ground that he was entitled to possession of the other half also by reason of a private sale by the co-sharer. The learned Judge rejected the contention of the judgment-debtors and ordered that warrant for possession for whole of the disputed property Survey No. 97 should be issued. In revision this order is challenged.

(2.) In my opinion the learned Judge below has acted beyond the jurisdiction vested in him. Under Order 21 Rule 97 and Rule 98 Civil Procedure Code the executing Court can order the delivery of possession of immoveable property in execution proceedings if the decree is for possession of the immoveable property or if the property had been purchased in execution of a decree. The order directing possession can only relate to such immoveable property that is immoveable property to which the decree relates or to immoveable property which had been purchased in execution of a decree. In the instant case admittedly what was purchased in execution was only half share in the property. The executing Court can order possession with respect to this half share only and not with respect to the remaining half share. The rights with regard to the remaining half share will have to be determined by proper legal proceedings. The question relating to such remaining half share cannot be considered in execution even if it is contended by the decree holder or by the purchaser that the remaining half share has been also purchased by him at private sale subsequent to the date of the decree or subsequent to the date of purchase in execution. The rights with respect to the purchase of property at a private sale cannot be the subject matter of the execution proceedings. The learned Judge was therefore clearly wrong in exercising jurisdiction which was not vested in him in regard to the property purchased at private sale.

(3.) It is however contended by the learned counsel for the opponent relying on Sarvi Begum v Taj Begum I.L.R. 36 Allahabad 181 that a judgment debtor cannot resist a warrant for possession. This principle can apply only if the warrant is restricted to the property referred to in Order 21 Rule (97 C. P. Code. In other words if the warrant is for possession in respect of the property to which the decree for possession of immoveable property relates or if it is the property purchased in execution of a decree. If the warrant relates to the property purchased at private sale anybody can resist the giving of possession by a Court in execution proceedings relating to other property.