USHA JAIN Vs. MANMOHAN BAJAJ

JUDGEMENT

(1.) This reference requires consideration of the correctness of the decision of a Division Bench in Bhagwat Narayan v. Kasturi 1973 MPLJ 899: (AIR 1974 Madh Pra 26), as a result of which the executing Court is bound to stay its hands the moment a third party files an objection to the execution and this stay continues till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. The success of the decree-holder/auction/purchaser even thereafter is subject to another such objector coming forward with a fresh claim requiring another investigation. Even though Bhagwat Narayan's case requires such an investigation to be summary, after the recent amendments in Order 21, by C.P.C. (Amendment) Act, 1976, the investigation is full as no separate suit lies later. This added difficulty in execution of a decree for possession has led to the present reference requiring reconsideration of the decision in Bhagwat Narayan's case.

(2.) The petitioners obtained a decree for eviction of their tenant Rishanlal Billa (respondent No. 2) and the subtenant Manoharlal Bajaj (respondent No. 3). Manmohan Bajaj (respondent No. 1) is the brother of the sub-tenant Manoharlal Bajaj (respondent No. 3). In the execution proceedings, Manmohan Bajaj (respondent No. 1) filed an application under Order 21, Rule 97. read with Rules 35 and 101 of the Civil P.C. as amended by the C.P.C. (Amendment) Act, 1976, and claimed full investigation of his right by which he claims to be in possession of the accommodation. Relying on the decision of the Division Bench in Bhagwat Narayan's case (supra), respondent No. l Manmohan Bajaj also claimed that the executing Court & bound to stay its hands until conclusion of the investigation of his right. The petitioners decree-holders opposed the application claiming that Manmohan Bajaj (respondent No. 1) had no right to file the application to the executing Court under Order 21, Rule 97; C.P.C. and to require an investigation into his right on the basis of that application. The executing Court rejected this objection of the decree-holders being bound by the decision in Bhagwat Narayan's case. The decree-holders feeling aggrieved by the executing Court's order rejecting their objection to the maintainability of the application under Order 21. Rule 97, C.P.C. at the instance of respondent No. 1 Manmohan Bajaj, preferred a revision to this Court.

(3.) When the revision came up for hearing before a Single Bench of this Court, it was contended on behalf of the petitioners that no application lies at the instance of a third party under Rule 97 of Order 21, Civil P.C. and that Bhagwat Narayan's case, (AIR 1974 Madh Pra 26) was wrongly decided. It was also contended that the hardship caused to the decree-holders as a result of the decision in Bhagwat Narayan's case has increased after the extensive amendments made in Order 21 of the Code by the Civil P.C. (Amendment) Act, 1976, as a result of which a full trial into the right and title by the executing Court itself is provided for and not a summary enquiry alone, which was envisaged earlier on an application under Order 21, Rule 97, Civil P.C. It was also contended that the consequence of following the decision in Bhagwat Narayan's case is, therefore, very harsh on the petitioners as the execution of the decree can be frustrated so long as the judgment-debtor has even a single friend left to oblige him by filing a fresh application under Order 21, Rule 97 to delay execution of the decree. The present case where the sub-tenant's brother has come forward to make such a claim is cited as typical example of the possible mischief. For these reasons stated in the order of reference, the single Bench has made this reference for reconsidering the correctness of the decision in Bhagwat Narayan's case. This is how the matter has come up before us.