BHAVNAGAR TRANSPORT COMPANY Vs. VALMIKBHAI HIMATLAL PATEL

JUDGEMENT

(1.) In peculiar circumstances of the matter controversy surfaces whether a third party Obstructor and in possession of immovable property of which recovery of possession is sought by warrant in the execution proceedings by decree holder can claim to have his right adjudicated upon by executing Court on preferring an Application alleged to have been filed under Order 21 Rule 97 of the Civil Procedure Code and all the more when decree holder chooses not to complain before executing Court about removing such obstruction and files no application to remove obstruction under Rule 97 of Order 21 of C.P.C.

(2.) The suit being Regular Civil Suit No. 523 of 1972 was filed by one Patel Valmikbhai Himatlal and others against the defendant Patel Mohanbhai Muljibhai and others for the recovery of the possession of rented premises. The suit was decreed and it appears that the matter was pursued by the defendants till Supreme Court but they failed and thereafter original plaintiff Patel Valmikbhai and other filed an execution Application before the Civil Judge, J. D., at Bhavnagar, being Civil Regular Execution Application No. 38 of 1998 for recovering the possession of the suit premises.

(3.) In the above mentioned execution proceedings, a third party, i.e. the present appellant, Bhavnagar Transport Company, a registered partnership firm, through its Partner Shri Jayantibhai Mathurdas Patel, filed an application at Exh. 6, stating that they are in possession of the immovable property, which is the subject-matter of the Execution Application, and they are the obstructor of obtaining the possession by the decree holder. It was also urged to remove the obstruction by the third party and to adjudicate upon the rights of the third party to retain the possession and till then the recovery warrant for possession be stayed.