GEETA DEVI Vs. GIRDHAR PD SHARMA

JUDGEMENT

(1.) HEARD the learned counsel appearing on behalf of the parties.

(2.) THESE revision petitions have been preferred against the order dated 14.6.2000 passed by Sub -Judge II, Munger in Misc. Case Nos. 6/2000 and 4 of 2000 whereby the prayer made by the petitioner for enquiring his claim as contemplated under Order 21 Rule 97 of the Code of Civil Procedure has been rejected. It is true that the petitioner was not a party in the suit but she is prosecuting a suit in respect of (sic) and it is stated in the bar that the second appeal is pending to that effect. According to the petitioner she is in physical possession of the decretal land on which delivery of possession was sought to be taken in Title Execution Case No. 8/98. Up -til -now direction for delivery of possession has not been issued but before that petitioner on apprehension might be genuinely had come up with the petition to be considered under Order 21 Rule 97 of the C.P.C. but that has been rejected. Order 21 Rule 97 of the C.P.C. has not given any authority to a third party or stranger to come up directly before the executing court. Third party can come up only after is being dispossessed as per under Order 21 Rule 99 of the C.P.C. But considering the hardship and manipulation of the decree holder to have taken decree against third party in execution also the provisions of Order 21 Rule 97 C.P.C. has been extended by interpretation by the Apex Court to the effect that when an obstruction has been made by the third party and even after that obstruction has been made the decree holder has not made any application for an enquiry regarding the right of third party or the obstructionists rather the decree holder wanted to get the decree executed through police help then in that position petition filed by the third party should also be construed for enquiry made under Order 21 Rule 97 of the C.P.C. Now the question comes as to whether the obstruction/resistence as mentioned under order 21 Rule 97 of the C.P.C. should be a physical one or a genuine apprehension of being dispossessed also comes within the purview of resistance/obstruction or not. In this respect learned counsel for the petitioner has referred to a judgment of the Andhra Pradesh High Court reported in 1987 A.P. 206 wherein it was held that a genuine apprehension of being dispossessed also comes within the scope of resistance and obstruction but that judgment was before the judgment passed by the Apex Court and the Apex Court has considered the position and circumstances elaborately and taking aid of those judgments and observations this court has held but until and unless there is physical obstruction by the third party there is no scope of the third party to come up under Order 21 Rule 97 of the C.P.C. for the purpose of enquiry. Mr. Sinha wanted to make a distinction between the obstruction and the genuine apprehension of being dispossessed to be coming within the scope of purview of resistance in the aid of the judgment of the Andhra Pradesh High Court as mentioned above. I am not convinced with such submission. I have already held in 1999(3) PLJR 917 (Mohd. Salauddin vs. Anil Kumar Sinha) that physical obstruction is a pre -requisite for a third party to come under Order 21 Rule 97 C.P.C. If that physical obstruction is not there then anybody set up by the judgment debtor can come with a plea that he has got possession and genuine apprehension of being dispossessed. At least this much must be on record that somebody else is there on the decreetal land then and then only that must be construed by the Court to be a pre -requisite for the purpose of allowing the third party to come under Order 21 Rule 97 C.P.C. In my view the learned court below has rightly rejected the prayer of the petitioner, at that stage as it was a premature one.