PREM KUMAR SURI Vs. SHRI SAIN DASS COMAR

JUDGEMENT

(1.) SAIN Dass and Madan Lal, Landlords filed the ejectment application against their tenants M/s. Vishvkarma Corporation through Rattan Lal, Jagdish Lal and others were also impleaded as parties to the ejectment application being alleged sub-tenants. Ultimately, eviction order was passed against the said judgment-debtors. When the decree-holders sough execution, Prem Kumar Suri resisted the possession on the ground that he had been in possession of a portion of the demised premises since July 1972, and had been carrying on his business there under the name and style of Prem Auto Centre, and paying rent to judgment-debtor No.1, i.e., M/s. Vishavkarma Corporation for the portion in his occupation, the same having been let out to him before the enforcement of the East Punjab Urban Rent Restriction Act in the Union Territory Chandigarh on 4th November, 1972 and, thus, the tenancy was legally and validly created by the judgment-debtor.

(2.) AN application purporting to be under Order 21 Rule 97, dated 22nd May, 1979, was, therefore, filed by Prem Kumar Suri in the executing court. Reply to the said objections was filed on behalf of the decree-holders in which the said allegations were denied. A preliminary objection was also raised that the application is not maintainable as the compromise decree was passed on 6th April, 1979, on the ground of subletting and the judgment debtors were ordered to hand over the vacant possession to the decree-holders on or before 15th April, 1979. The executing court took the view that the provisions of Order 21 Rule 97 of the Code of Civil Procedure did not apply to the facts and circumstances of the present case. According to the court, it was not understandable how Prem Kumar Suri had moved this application under the said provisions, because the said Rule relates to the resistance or obstruction of possession and the person complaining should be the decree-holder. Thus, according to the executing court, Prem Kumar Suri had no locus standi to move such an application during the execution of the decree by Sain Dass ; that this right is available to the decree-holder, and not any stranger, and that if advised, he can seek his remedy according to law elsewhere in some other manner. With these observations, the application of Prem Kumar was dismissed. Dissatisfied with the same, Prem Kumar, objector, has filed this petition in this Court.

(3.) ON the other hand, the learned counsel for the decree-holder submitted that no objections under Order 21 Rule 97, CPC, were maintainable by a Third party. It is only the decree-holder who can make an application thereunder, complaining of any resistance or obstruction by any person, it is asserted. In any case, it is contended, the objections could be filed under Order 21 Rule 99, CPC, by a third person only when he was dispossessed. According to the learned counsel for the Decree-holder, the petitioner must surrender possession before filing the objections under Order 21 Rule 99, CPC. In support of this contention, he referred to Om Parkash v. M/s. Durga Dass Harbans Lal etc. 1981 (2) R.C.R. 91, Harijan Wood Workers Production-cum-Sales Cooperative Society Ltd. v. Smt. Maya Wati 1984 (2) RCR 331 (1984 (1) R.L.R. 519), Sushil Kumar v. Ved Parkash 19084 HRR 70 and K.A. Prabhakaran v. Kuttian Prakashan 1985 (2) RCR 271.