SONA DEVI Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This writ petition is directed against the order passed by the District Judge, Allahabad, dated 8-10-1986 upholding the order passed by the Judge, Small Cause Court, dated 23-9-1956.

(2.) The facts of this case are that a suit for arrears of rent and ejectment was filed by respondent No. 3 Ram Niwas Gupta against respondents Nos. 4 to 7 before the Judge, Small Cause Court which remained pending for about four years and then the suit was decreed ex parte on 6-8-1986 in favour of the respondent No. 3. Thereafter respondent No. 3 put the decree in execution and moved an application for obtaining possession therein. Respondent No. 3 also requested for police help which was allowed by the execution court and then proceeded to execute the decree. The petitioner then filed an application under Order 21, Rules 35, 97 and 99, Civil Procedure Code claiming that they were in possession in their own right and not as sub-tenants and are not bound by the decree passed in Suit No. 196 of 1982 and hence are not liable for eviction in execution of the decree. Respondent No. 3 filed an objection to the application moved by the petitioners on the ground that the petitioners had no right to file an objection under Order 21, Rule 99 and that they are the sub-tenants liable to be ejected and cannot be heard till they are dispossessed from the immovable property and further that the petitioners have also filed a regular suit No. 739 of 1986 for declaration of their rights and for an injunction against respondent No. 2 on 14-8-1986 in the Court of the Munsif West, Allahabad wherein they have already prayed for issue of the temporary injunction from evicting them in execution of the decree and hence these execution proceedings cannot be stayed and the petitioners have no right to file an objection at this stage.

(3.) The Judge, Small Cause Court in a very detailed order held that Order 21, Rule 99 provides for an objection by a person other than the judgement-debtor which can be filed only after he is dispossessed from the premises which constitutes the subject-matter of the decree and the executing court has no jurisdiction to start an inquiry at the instance of a third party other than the decree-holder/auction purchaser under Order 21, Rule 97, C.P.C. It further held that an inquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100, C.P.C. after he was dispossessed and not before it and on this ground dismissed the objection filed by the petitioners, vide his order, dated 23-9-1986. Feeling aggrieved, the petitioners went up in revision before the District Judge who also dismissed the revision and hence this writ petition is filed before this Court.