VIKRAM SINGH Vs. PRASHANT SINHA

JUDGEMENT

(1.) This civil first appeal has been filed under Section 96 read with Order 21 Rule 103 CPC, against the order dated 15.9.2003 passed by Additional District Judge No. 1 Jaipur City Jaipur in Civil Execution Misc. Appl. No. 97 of 1999 whereby the appellant Vikram Singh's (in short "the objector") application filed under Order 21 Rule 97 was rejected. Brief facts of the case as stated in the appeal are that on May 13, 1979 the objector took possession of four shops and open land appurtenant to them situated on Chomu Road, Jaipur on monthly rent of Rs. 110/- from the respondent No. 1 Prashant Sinha (in short "the decree holder") and started his sanitary and hardware business. According to the objector the tenancy was verbal. The objector stated that the land lord dishonestly started taking steps in collusion with the Jaipur development Authority in 1986 to dispossess the objector from the tenanted premises and the objector felt compelled to file a suit for permanent injunction on April 24, 1986 (No 395/86) against the landlord and the Jaipur Development Authority which was eventually decreed in favour of the objector on 5.9.1995 and the landlord was permanently restrained from dispossessing the tenant-objector from disputed premises except in due process of law.

(2.) During the pendency of the above suit (No. 395/86) the decree holder filed a collusive eviction suit No. 208/86 against ghost tenant Ramavtar (respondent No. 2 herein) on 4.8.1986 on the ground of default and sub- tenancy and secured exparte decree on May 26, 1990. According to the objector he was not a party in this suit. Thereafter the landlord filed an execution of his eviction decree obtained against ghost tenant Ramavtar and tried to dispossess the objector. Thereafter the objector has filed another suit No. 131/94 and obtained temporary injunction on October 29, 1994 restraining the land lord Prashant Sinha from dispossessing the objector from the suit premises. The land lord decree holder stub-bornly insisted to dispossess the objector from the suit premises in execution of eviction decree obtained against the respondent No. 2 Ramavtar (in short judgment debtor) and therefore the objector filed an application under Order 21 Rule 97 CPC on September 23, 1999 before the executing court. The decree holder contested the application and he stated that the suit shops and appurtenant open land were given on rent to respondent No.2 Ramavtar and the objector was sub- tenant of Ramavtar and he did not come forward to oppose the application. The executing court framed two issues. Both the parties led oral and documentary evidence. After hearing arguments the executing court decided issues in favour of the decree holder and against the objector and dismissed the application on September 15, 2003. Against the order dated September 15, 2003 the objector filed a revision petition No. 859/2003 before this Court and the same was withdrawn on May 28, 2004. Thereafter the objector filed S.B. Civil Writ Petition No. 3551/2004 but same was also dismissed on 22.11.2004. Thereafter the objector filed this appeal under Order 21 Rule 103 CPC, against the order rejecting his objections under Order 21 Rule 97 CPC.

(3.) The learned counsel for the objector argued that Order 21 Rule 97 CPC provides that where the holder of a decree for possession of immovable property is resisted or obstructed by any person other than the judgment debtor in obtaining possession of the property then the decree holder may make an application to the Court complaining of such resistance or obstruc- tion. The learned counsel stated that in the present case resistance and obstruction was made by the objector, the decree holder stubbornly persisted in getting the warrant of possession executed through police help although the law laid down by the Apex Court is that if there is obstruction raised by a person other than the judgment debtor within the knowledge of executing court then the court can not re-issue warrant of possession with police assistance and the decree holder is expected to make first an application complaining of such resistance or obstruction for investigation. The executing court shall than adjudicate the matter under Order 21 Rule 98 CPC and if it comes to the conclusion that the resistance or obstruction was raised by the judgment debtor or by any body else on behalf of the judgment debtor, then the above warrant of possession shall be issued and the person in possession shall be forcibly dispossessed. The learned counsel argued that in the instant case the decree for possession was against one Ramavtar and not against Vikram Singh objector. Resistance and obstruction was raised by Vikram Singh. The decree holder in place of moving an application under Order 21 Rule 97 CPC insisted in getting the warrant of possession issued and executed with police help against Vikram Singh and in the circumstances Vikram Singh was left with no option but to move an application to the executing court on 23.3.1999, which has given rise to this appeal. Reliance was placed on Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another (AIR 1997 SC page 856) and Bhanwar LaL vs. Satya Narain (AIR 1995 SC 358).