SHIVAJI Vs. JIJABAI PRABHAKAR ALWANE AND ORS.

JUDGEMENT

(1.) THE appeal is filed to challenge the judgment and order of Regular Civil Appeal No. 17/2015 which was pending in the Court of the District Judge -1 Vaijapur and also to challenge the order made on Exhibit 42 in Special Darkhast No. 30/2013 which was pending in the Court of the Civil Judge, Senior Division, Vaijpur. The execution proceeding is filed by the present respondent, original plaintiff of Special Civil Suit No. 401 of 2007 which was filed for relief of specific performance of contract of sale of immovable property. The decree is given in favour of the plaintiff and the decision has become final. By filing application at Exhibit 42 in execution proceeding, present appellant, objection petitioner, contended that he has purchased the suit property for valuable consideration and without notice and so he is entitled to keep the possession. The executing Court has rejected the application by holding that in view of Rule 99 of Order 21 of Civil Procedure Code and Rule 101 of the same Order, the application is not tenable as it is not the contention that he is dispossessed. The First Appellate Court has held that as the application itself is not decided on merit and it is held that the application of the objection petitioner was not tenable, the appeal cannot be entertained.

(2.) THE learned Senior Counsel for the appellant submitted that both the Courts have committed error. He submitted that in view of law settled, the application of the objection petitioner is tenable under provision of Order 21 Rule 97 of the Civil Procedure Code. He placed reliance on a case reported as : (1998) 4 SC 543 (Shreenath v. Rajesh). The words "any person" used in Rule 97 are considered and interpretation is made by the Apex Court that words 'any person' may be either the person bound by the decree, the person claiming title through judgment debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. The facts of the said case were totally different and it was noticed that the tenant was already in possession, before institution of the suit. In view of that circumstance, his right to continue the possession was required to be considered. It was held that said person was in possession in his own right and he was not representing the judgment debtor's interests. There cannot be dispute over this proposition. Following reported cases on this point were also cited.

(3.) THE learned counsel for the decree holder, respondent, submitted that this Court had occasion to consider the defence taken by the present appellant in the case reported as : 1999 (4) ALL MR 683 (Murlidhar v. Nababbi Yousufkhan). He placed reliance on the following observations made by this Court : -