GANGA PRASAD Vs. RAM SARAN

JUDGEMENT

(1.) THIS revision at the instance of the decree-holders arises out of an objection under O. 21, R. 99 of the C.P.C. (hereinafter referred to as the Code).

(2.) MATERIAL facts giving rise to this revision are that House No. 47/99, Hatia, Kanpur was joint property of opposite parties 2 to 5. A suit for partition of this house was filed in the court of the 1st Civil Judge, Kanpur, who had territorial jurisdiction to entertain and decide the suit. It was subsequently transferred to the court of the II Civil Judge, Kanpur who ultimately passed the decree in the suit. In that partition decree, the premises in dispute in the present proceedings, were allotted to the share of Ganga Prasad, Jamuna Prasad and Smt. Ram Kali, the applicants in the revision. They put the decree into execution and obtained delivery of possession of the property in question on the 5th April, 1969. Ram Saran, opposite party No. 1, filed an objection under O. 21, R. 100 of the Code in the court of the learned II Civil Judge, Kanpur against his dispossession from the premises in dispute on the ground that he was a person in occupation of the premises in dispute not through or on behalf of any of the judgment-debtors but was in possession in his own right as a tenant thereof. It was also contended by Ram Saran that since the subject-matter of the dispute was immovable property which was situate within the territorial jurisdiction of the court of learned I Civil Judge, Kanpur, the learned II Civil Judge had no jurisdiction to execute the decree passed by him in the capacity of a transferee court. The objections raised by Ram Saran failed to find favour with the learned II Civil Judge, Kanpur, who accordingly rejected them. Ram Saran filed a revision in the court of the learned District Judge, Kanpur, which was disposed of by the learned I Additional District Judge, Kanpur. The revision was filed only on the ground that the court of first instance had no jurisdiction to execute the decree because the subject-matter of the dispute was situate within the territorial jurisdiction of the learned I Civil Judge, Kanpur. It may be mentioned here that the learned II Civil Judge while disposing of the objection, recorded a clear finding of fact that Ram Saran was not the tenant of the premises in dispute and was not in possession in his own right.

(3.) A perusal of O. 21, R. 100 discloses that an objection under that provision can be filed only by a person other than the judgment-debtor where he is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof complaining of such dispossession. Under Cl. (2) of O. 21, R. 100, the court is required to fix a day for investigating the matter and for summoning the party against whom an application is made to appear and answer the same. Order 21, R. 101 clearly provides that where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property. It is thus apparent that the satisfaction of the court is confined to the question as to whether the objector was in possession of the property on his own account or on account of some person other than the judgment-debtor. Order 21, R. 101 does not contemplate the court deciding any other question in such proceedings. It has to be borne in mind that the proceedings, following an objection under O. 21, R. 100, are summary in character and the decision therein is subject to a suit under O. 21, R. 103. It was conceded by the learned counsel appearing on behalf of the applicants that if the jurisdiction of the court which executed the decree has to be challenged by a person claiming to be in possession on his own behalf and not on behalf of the judgment-debtor, he may file a regular suit challenging the execution proceedings. In my opinion, the language of O. 21, R. 101, clearly bears out and supports the contention raised by the learned counsel for the applicants. No direct authority was cited by learned counsel for either parties in support of their respective contentions. In my judgment while deciding an objection under O. 21; R. 100, it is not open to a court to pass an order of the nature envisaged by O. 21, R. 101 on the ground that the execution court had no territorial jurisdiction over the subject-matter of the property involved.