FIRM KAILASH NARAYAN Vs. BHAGWANDAS PAWAIYA

JUDGEMENT

(1.) AS to what is the scope of Order 21 Rule 97 of the Code of Civil Procedure, 1908 is required to be gone into in the present petition, preferred under Section 115 of the Code of Civil Procedure, 1908 (hereinafter refer as to Order). The facts which have led to filing of this petition be noticed :

(2.) A decree for eviction was passed against the respondent No. 1 Bhagwandas Pawaiya. This decree was passed in terms of Section 12(1)(a)(d) of the Madhya Pradesh Accommodation Control Act, 1961. In second appeal this was reversed. The matter was taken up to the Supreme Court of India. Civil Appeal No. 226 of 1992 came to be decided on 1st of April 1995. Appeal was allowed. When the decree was sought to be executed, an objection was taken by one Gopal Narayan to the effect that it is he, who is in fact in possession of the disputed property and therefore, the decree cannot be executed. The trial Court came to the conclusion that such a petition is not maintainable at the instance of a third person. An appeal was preferred. Appellate Court came to the conclusion that Order 21 Rule 97 would be available to the objector Gopal Narayan also. It is against the above order, the present revision petition has been preferred.

(3.) TO a later decision reference may again be made. One such decision is Babulal v. Raj Kumar, 1996 AIR SCW 2457. In the above case, the executing Court has dismissed the application of the objector on the ground that he had not been dispossessed and therefore, his claim under Order 21 Rule 97 was not maintainable. This view of the executing Court was held to be not in accordance with law. In para 7 of the judgment it was observed as under.