BALDEV SINGH Vs. KALAWATI

JUDGEMENT

(1.) Dr. Baldev Singh has filed this revision petition under section 115, Civil Procedure Code. It arises out of execution proceedings. These execution proceedings have been going on since 1948 but it is not necessary to trace the history of these proceedings in this judgment. The facts relevant for the decision of this petition may be thus stated. Dr. Baldev Singh obtained a decree against one Shamasudin. A house belonging to the judgment-debtor was sold by court auction and it was purchased by Kalawati respondent for Rs. 3075/-, in August, 1949. The sale was confirmed in her favour on 6th October, 1949 and the necessary sale certificate was granted to her on 13th February, 1950. The auction purchaser applied for possession of the property in 1951. Some persons who were in occupation of portions of premises alleged themselves to be in occupation under the Custodian. Kalawati failed in securing possession and ultimately the application was consigned to the record room on the 17th January, 1953. She filed fresh application to obtain possession on 24th February, 1953. The delivery of possession was resisted by Dr. Baldev Singh and also by six other persons. On 6th June, 1953 Kalawati complained to the executing Court of resistance and obstruction by these persons under Order 21 Rule 97 Civil Procedure Code. Notices were issued to the persons against whom the complaint had been made. Dr. Baldev Singh claimed in good faith to be in possession of the property on his own account while some of the other persons claimed in good faith to be in occupation on account of Dr. Baldev Singh. These allegations including the allegation of good faith were denied by Kalawati. The executing Court framed one issue. Dr. Baldev Singh applied for its amendment but was unsuccessful and his revision petition was dismissed by the High Court on 20th October, 1955. Proceedings were then resumed in the executing Court. The counsel for both parties made a joint statement and thereupon the following issues were framed -

(2.) It will be noticed that there was no issue relating to Dr. Baldev Singh's Claim being in good faith or not. The executing Court decided issue No. 1 in favour of the obstructionists and under issue No. 2 it was held that actual possession of the property could not be given to Kalawati but the learned Court proceeded to order delivery of symbolic possession to her under Order 21 Rule 96 Civil Procedure Code. Dissatisfied with the order passed under Order 21 Rule 96 Civil Procedure Code, Dr. Baldev Singh has filed this petition. The other obstructionists have not challenged the order. It is argued on behalf of Dr. Baldev Singh that once proceedings have been started under Order 21 Rule 97, Civil Procedure Code, the executing Court has no jurisdiction to pass an order under Order 21, Rule 96 Civil Procedure Code. The contention is that after a complaint has been filed under Order 21 Rule 97, Civil Procedure Code, the Court can either grant it by ordering actual physical possession to the complainant and if necessary by use of force also under Order 21, Rule 98 or it can dismiss it under Order 21, Rule 99.

(3.) On the other hand, the learned counsel for the respondent urged that the decision of the trial Court on issue No. 1 is erroneous as the petitioner has not proved that his claim to be in possession is bona fide and also that it is open to the executing Court to order delivery of symbolic possession at any stage of the proceedings.