HARILAL YADAV Vs. GHANSHYAM SHUKLA

JUDGEMENT

(1.) Heard Sri. N.D. Kesari, learned counsel for the petitioner and Sri K.N. Mishra for the respondents.

(2.) This petition under Article 226 of the Constitution of India has been preferred challenging the orders dated 5.8.2005 passed by the revisional court and 23/4/2005 passed by the executing court.

(3.) The background facts giving rise to the dispute between the parties are that in the execution of an ex parte decree being execution case No. 19 of 1992 the petitioner as a third party resisted the possession over the property in dispute for which the writ of possession was issued by the executing court. The petitioner filed his objections under Order XXI Rule 99 C.P.C. stating that the property was continuing in his possession since 2/9/1972 when he obtained it from Deo Narain, the owner of the property, after getting an agreement of sale executed by him after receiving a sum of Rs. 2,450.00. The remainder sale-consideration of Rs. 50.00 was to be paid later on. During the continuance of possession over the property he constructed a house thereon and is enjoying the property in the capacity of its owner. He was not party to Suit No. 498 of 1986 for Specific Performance of Contract in which exparte decree was passed. In execution of the aforesaid ex parte decree dated 7/3/1992 in favour of the predecessor of respondent No. 1, the executing court had issued writ of possession over the said property. The delivery of possession was resisted and objections were filed. The learned counsel contends that since those objections were pending before the executing court and they had not been disposed of on merits, the stay order granted in the execution should not have been vacated in his absence by passing the impugned order dated 23/4/2005. In the revision filed against this order, the District Judge has also summarily rejected it on 5/8/2004 holding that since the execution case has already been decided in full satisfaction of decree, the objections have no meaning. It is further submitted on behalf of the petitioner that the very delivery of possession through the court in execution of the aforesaid exparte decree will not bring an end to the filing of the objections under Order XXI Rule 99 C.P.C. The court is legally obliged to pass an order disposing of such objections on merits which the courts below have failed to discharge.