JAIN PARKASH JAIN Vs. DIALI RAM

JUDGEMENT

(1.) This revision petition is directed against the order of the executing Court dated 9th December, 1987, whereby the objections filed by a third party had been entertained and issues framed accordingly.

(2.) The petitioner Jain Parkash Jain, the owner, filed an ejectment application under the Rent Act against Diali Ram and his son Surinder Kumar, in which eviction order was passed by the Rent Controller and was maintained up to the High Court on 17th August, 1987. Meanwhile certain civil litigation went on between the co-sharers, i.e., Manjit Kaur and Jain Parkash Jain in which it was held that Manjit Kaur had 5/18th share in the suit property. It has been stated at the bar that no final decree has been passed in the said litigation uptil now. The preliminary decree for partition was maintained up to the High Court. When the decree-holder Jain Parkash Jain sought execution of his decree, Manjit Kaur and others filed objections under Order 21 Rules 98, 99 and 101, Code of Civil Procedure, alleging that they were in possession of the suit property and, therefore, they could not ejected in execution of that eviction decree against Diali Ram and his son Surinder Kumar. That objection petition was resisted by the decree-holder. The executing Court relying upon Dhan Chand v. Parkash Kaur, 1978 AIR(P&H) 221, decided to proceed with the said objection petition on merits after allowing the parties to lead evidence.

(3.) The learned counsel for the petitioner submitted that the said judgment was overruled in Harijan Wood Workers Production-cum-Sales Co-operative Society Ltd. v. Smt. Maya Wati, 1985 AIR(P&H) 181, and, therefore the objection petition was liable to be dismissed. Unless the possession was surrendered first to the decree-holder, no such objection petition was maintainable.