JANDEL SINGH Vs. RAMLALI SHARMA AND ORS.

JUDGEMENT

(1.) THIS appeal under Section 100 CPC at the instance of objector/appellant is directed against the judgment and decree dated 8/12/2006 in civil appeal No. 37A/2006 confirming the order dated 12/1/2006 in execution case No. 269A/85 -02. The Executing Court has rejected the application filed under Order XXI Rule 97 read with Section 151 CPC.

(2.) FACTS necessary for disposal of this appeal are to the effect that the objector/appellant filed objection under Order XXI Rule 97 CPC in execution case No. 269/85 -02 decided on 12/1/2006 pending for execution of the decree dated 26/3/1999 passed in civil suit No. 269A/1989. It is submitted that the decree -holder Ramlali Sharma wd/o Late Shri Balkrishna had obtained an ex parte decree against Chandrakishore S/o. Aghurelal. The objector was in possession of the suit premises being tenant of the actual owner Vishwanath S/o. Banshidhar and has all along been paying rent since 1998, therefore, the ex parte decree passed against one Chandrakishore is not binding upon him. It is also submitted that he acquired knowledge of the decree only on 29/3/2004 when the decree -holder alongwith the employees of the Court reached the suit premises for possession pursuant to the ex parte decree. It is also submitted that, as a matter of fact, the suit house was originally of the ownership and possession of one Jashodabai. She had inducted Chandrakishore as tenant of the suit premises in the year 1980. He continued to occupy the premises upto 1982 -83. Jashodabai used to realize the rent from Chandrakishore. After death of Jashodabai, rent was being realized by her nephew Vishwanath. Chandrakishore vacated the suit premises and handed over the possession to Vishwanath. Thereafter, objector was inducted as tenant by Vishwanath. Chandrakishore though party to the suit in question, but since had no interest to the suit premises, did not attend the hearing and left it to Vishwanath. Under such circumstances, ex parte decree was granted. It is, therefore, submitted that decree, so obtained, is having no binding effect upon the objector.

(3.) BEFORE we advert to further discussion, it is apposite to restate the law as regards scope of Order XXI Rule 97 CPC in the context of execution proceedings. In this regard it is considered apposite to refer to the judgment of Hon'ble Supreme Court in the case of Shreenath and another v. Rajesh and others, : (1998) 4 SCC 543. Factual matrix in the said case are that a suit for redemption of mortgage filed by A against B was decreed. Decree directed delivery of vacant possession of the mortgaged property to A. Objector C was not party to the suit, but was in possession of the suit shop as tenant from the year 1952; much before execution of the mortgage, which was in the year 1962. The objector C had resisted the execution of decree and for protection of his possession in the suit shop. He filed an application under Order XXI Rule 97 CPC with the contention that the decree holder A cannot be delivered possession and only can be given symbolic possession. He further contended that he cannot be dispossessed in terms of the decree as neither was he party to the said suit nor did he derive any right and title through the judgment debtor. He claimed separate, independent legal right not affected either by the mortgage or redemption of mortgage. The aforesaid objection filed under Order XXI Rule 97 CPC to the decree in execution was rejected in the light of the Full Bench decision of this Court in Usha Jain v. Manmohan Bajaj, : AIR 1980 MP 146. The Full Bench ruled as under: