MOHAMMED SHAREEF Vs. BASHIR AHMED

JUDGEMENT

(1.) This revision first came up for hearing before a single Bench, where correctness of two single Bench decisions in Civil Revision No. 145 of 1981 (Indore Bench) decided on 2-5-1981 : (Reported in AIR 1982 NOC 66), Jainarayan Shukla v. Gyansingh and Civil Revision No. 212 of 1981, decided on 31-3-1981, Raghubirdayal v. T. Krishnaswami arose for examination, on the ground that they are contrary to the Full Bench decision in Usha Jain v. Manmohan Bajaj, 1980 MPLJ 623: AIR 1080 Madh Pra 146. Accordingly, the matter was referred by the single Bench to a Division Bench for decision and this is how this revision comes up before us.

(2.) The material facts are these: Respondent No. 1 Bashir Ahmed Choudhary obtained a decree against the remaining respondents for their eviction from an immovable property situate in Jabalpur. The petitioners, who are closely related to the judgment-debtors, resisted execution of that decree and made an application in the executing Court under Order 21, Rule 97 read with Section 151, C.P.C., claiming investigation into their title, alleging that they were in possession of the immovable property in their own right and not through the judgment-debtors. The executing Court, following the Full Bench decision of this Court in Usha Jain v Manmohan Bajaj (AIR 1980 Madh Pra 146) (supra), rejected the petitioners' application as untenable on the ground that a third party could not claim such an investigation as it had no right to make an application under Order 21, Rule 97, C.P.C. The petitioners have filed this revision, aggrieved by this order of the executing Court made on 28-1-1982.

(3.) At the hearing of this revision, learned counsel for the petitioners relied on certain observations made by a single Bench in Civil Revision No. 145 of 1981, decided on 2-5-1981 (Indore Bench), (Jainarayan Shukla v. Gyansingh) as well as the decision of another single Bench in Civil Revision No, 212 of 1981, decided on 31-3-1981 (Raghubir Dayal v. T. Krishnaswami), to contend that the Full Bench decision in Usha Jain's case (supra) does not shut out such an enquiry at the instance of a third party who resists execution of the decree claiming to be in possession in his own right. We shall first refer to the Full Bench decision in order to examine whether the point involved in this revision is concluded by that decision and then refer to the two single Bench decisions relied on by the learned counsel for the petitioners.