KISHAN KUMAR KANAUJIA Vs. RAMKESH GUPTA

JUDGEMENT

(1.) THIS revision has been filed against an Order, passed by the Addl. District Judge, Allahabad dismissing the objection purporting to have been filed by the applicant under O. 21, Rr. 97, 98, 99 and 101 C. P. C. A pedigree of the family may be noted:

(2.) IT appears that suit No. 190 of 1977 was filed by Smt. Ramkesh Gupta wife of Rajendra Prasad Gupta against Munnu Lal, Smt. Jalia widow of Badloo, Chunni Lal, Chunnu Lal and Hod Lal, for ejectment of the defendants from house No. 639/g952 Daryabad, Allahabad and for possession by eviction of the defendants. A decree for Rs. 4880/- as arrears of rent and damages was also claimed. This suit was decreed ex parte on 2nd April, 1979; that decree has become final between the parties. The decree- holder proceeded in execution of the decree. The instant objection has been filed by the minor Kishan Lal alias Kishan Kumar son of Chunni Lal under O. 21, Rr. 97, 98, 99, 101 C. P. C. The Trial Court came to the conclusion that objection by a third party was not maintainable and that it was open to the plaintiff if he claimed any independent right to file a regular suit. The view of the Court below further was that O. 21, R. 99 C. P. C. which has been introduced by the Amendment Act No. 104 of 1976 w. e. f. 1st Feb. 1977 was applicable to the facts of the present case and the objection, it any, could only be filed after delivery of possession of the property to the decree-holder in pursuance of the decree. This view has been assailed by learned Counsel for the applicant. He has cited a number of cases before me. In particular he has relied upon a Full Bench decision reported in AIR 1924, All 495 and a single Judge decision of the Calcutta High Court, reported in AIR 1981 Cal 220. So far as the Allahabad case is concerned that was a decision much prior to the Amendment Act No. 104 of 1976 which introduced a new R. 99 to O. 21, of the Code of Civil Procedure in the following words: 1. Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof he may make an application to the court complaining such dispossession. 2. Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. " This Rule clearly contemplates that an objection by a person other than the judgment-debtor can only be filed after his dispossession from the premises which constitutes the subject matter of the decree. This view is supported also by a Full Bench decision of the Madhya Pradesh High Court, reported in AIR 1980 M. P. 146, Smt. Usha Jain v. Manmohan Bajaj, wherein it has been observed that; "the Executing Court has no jurisdiction to start an inquiry suo motu or at the instance of a third party other than the decree-holder/auction-purchaser wider Order 21, Rule 97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . An inquiry at the instance of a third party, in possession, is contemplated only under Order 21, R. 100, after he was dispossessed and not before it. " Perhaps R. 100 is a misprint. The Full Bench was in fact referring to R. 99 which I have quoted above.

(3.) THERE is no merit in this revision, which is hereby dismissed with costs. The stay Order passed by this Court on 12-5-82 staying dispossession, which was later on confirmed on 13-8-82, is hereby vacated. Revision dismissed. .