SALAUDDIN Vs. ANIL KUMAR SINHA

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 15.9.2000 passed by the Second Munsif, Buxar, in Execution Case No. 16. of 1988 whereby the Court below refused the prayer of the petitioner to stay delivery of possession in execution case during the pendency of Misc. Case no. 5 of 1998.

(2.) THERE is a chequered history of the case. The execution case no. 16 of 1988 arises out of the decree passed in favour of the opposite parties in Title Suit no. 132 of 1982 in the court of Second Munsif, Buxar. When delivery of possession in the execution case was being ensued the petitioner filed a petition under Order 21, Rule 97 of the Code of Civil Procedure stating that he is the purchaser from the heirs of Bibi Sogra who practically got the suit property on partition but her co -sharer Md. Akhtar had sold away the property to Kedar Lal, the predecessor in interest of the opposite parties. In a previous suit i.e. Title Suit no. 30 of 1932, the disputed plot was declared to be in possession of Bibi Sogra but without making her party Title Suit no. 132 of 1982 was filed and that suit was decreed after fighting up to the Supreme Court but admittedly Bibi Sogra was not a party in that suit. Bibi Sogra then filed Title Suit no. 220 of 1996 challenging the decree passed in Title Suit no. 132 of 1982. Bibi Sogra died during the pendency of the suit and her heirs were continuing with the suit. The petitioner had purchased from the heirs of Bibi Sogra during the pendency of the suit. A prayar for injunction was there in the suit filed by Bibi Sogra for staying of the execution case of decree but the same was not allowed and practically the plaintiffs of Title Suit no. 220 of 1996 had failed in receiving injunction after fighting up to the Apex Court. Now in the execution proceeding the petitioner, who happened to be the purchaser from the heirs of Bibi Sogra, had filed a petition under Order 21, Rule 97. of the Code of Civil Procedure which was registered as Misc. Case no. 5. of 1998 but the executing court dismissed that petition holding that the same is not maintainable. Then the petitioner came up before this Court in Civil Revision no. 1396 of 1998 [reported in 1999(3) PLJR 917]. By an elaborate order the Civil Revision petition was dismissed holding that although the third party has been included within the ambit of Order 21, Rule 97 of the Code of Civil Procedure for the purpose of initiation of an enquiry by the executing court but for entertaining such petition by a third party and not the decree -holder there must be a precondition and pre -requisite that there was actual physical obstruction in delivery of possession by the third party. The revision petition, as mentioned above, has been dismissed by considering the judgments of the Apex Court as reported in 1997 (SC) 856 (Brahmadeo Choudhary V/s. Rishikesh Prasad Jaiswal & anr.) and a Division Bench judgment of this Court as reported in 1999(1) PLJR 19 (Prabhat Kumar Sinha V/s. Nirmala Sinha & anr.) holding that the prerequisite of any physical obstruction by the third party and vis -a -vis Nazirs report to that effect being not there, there was no scope of the executing court to entertain a petition under Order 21, Rule 97 of the Code of Civil. Then it appears that the execution case proceeded further and the petitioner had given actual physical obstruction to such delivery of possession and a report of the Nazir was there in the records. Then again the petitioner filed a second petition under Order 21, Rule 97 of the Code of Civil Procedure in the execution case no. 16 of 1988 itself. That petition was numbered as Misc. case no. 2. of 2000. In view of the earlier order of this Court in the earlier revision petition as reported in 1999(3) PLJR 917 the executing court held the second petition under Order 21, Rule 97 of the Code of Civil Procedure not maintainable. Against that order again the petitioner came up before this Court in Civil Revision No. 647 of 2000. After hearing both the parties at length that civil revision petition had been disposed of vide order dated 1.8.2000, the photo copy of which has been annexed as Annexure -A to the rejoinder filed from the side of the opposite parties in this revision petition. By that order it was held that the pre -requisite for entertaining a petition filed by third party under Order 21, Rule 97 of the Code of Civil Procedure has not been questioned now because on actual physical obstruction being given the petition was maintainable to be enquired into under Order 21, Rule 97 of the Code of Civil Procedure. But then again it was held by the same order that as already there was a suit pending being Title Suit no. 220 of 1996 and as the scope of the suit is larger than that of the enquiry to be held under Order 21, Rule 97 of the Code of Civil Procedure, the proceeding of enquiry under Order 21, Rule 97 of the Code of Civil Procedure was ordered to be kept in abeyance till the decision is arrived at in the suit itself as that is mandate of law under Order 21, Rules 97 and 98 of the Code of Civil Procedure. Now the position remains that at one hand the Title Suit is pending while on the other hand a petition under Order 21, Rule 97 of the Code of Civil Procedure is also pending although kept in abeyance by the earlier order passed in Civil Revision no. 647 of 2000 and, in such circumstances, it is to be considered as to whether in such a position the execution proceedings should be allowed to proceed further or not.

(3.) IT is true that injunction has been fought up to the Apex Court and therein the petitioners vendor had lost but at that stage the position was not so. It was not there that the petitioner being a third party was in actual physical possession of the property in question on which execution has been sought for rather this position has emerged at a subsequent stage. Now on the report of the Nazir it has already come before the executing court that third party is in possession over the suit property then delivery of possession definitely cannot proceed against the third party when the judgment -debtor was not in possession of the property till the enquiry is held under Order 21, Rule 97 of the C.P.C.