RUKMANI Vs. RAMANLAL

JUDGEMENT

(1.) THIS civil execution second appeal is filed against the judgment and decree, dated March 14, 1979 in the following circumstances: - -A decree for rent and ejectment was obtained by respondent No 1 Ramanlal against respondent No. 2 Harish Chandra on 14 -10 -68. In the suit, the stand of Harishchandra was that he was not the tenant of Ramanlal. Some time after, this decree has been passed, Harishchandra handed over the possession of the suit -property to the appellants. Ramanlal made an application for execution of the decree against Harishchandra and obstruction was made by Dhurilal. On 29 -5 -69, Ramanlal moved an application under Order XXI, Ruel 97, CPC in the executing court that Dhuri Lal and Harjeemal and other appellants had obstructed the delivery of possession and notices were issued to them. Objections were filed by Dhurilal, wherein it was stated that Ramanlal, decree -holder is the son of Dhurilal and they are the members of undivided joint Hindu family. Dhurilal was not bound by any rent -note executed by Harishchandra in favour of Ramanlal and consequently, also by any decree passed in his favour. The rent -note executed by Harishchandra in favour of Ramanlal was fraudulent and collusive. The property has been in possession of Dhurilal and his tenants. It appears that Dhurilal wanted to say in his objections though he did not state in so many words that Harishchandra was his tenant. The executing court held that obstruction made by Dhurilal and his tenant Harjeemal was malafide. The question of title can not be gone into an application under Order XXI, Rule 97, CPC. The executing court, further held that it can not be said that; the possession of Dhurilal was in his own tight and bonafide. The executing court directed that the possession of the suit -property be delivered to decree -holder Ramanlal. An appeal was preferred by Smt. Rukmani widow of Dhurilal had his daughters. Dhurilal had died. The appellate court held that the possession of the suit -property was taken by Dhurilal from Harish Chandra after a decree had been passed in favour of Ramanlal against Harishchandra. In these circumstances, it could not be said that the appellants were obstructing the decree in their own right. Consequently, the appeal was dismissed.

(2.) I have heard the learned Counsel for the parties and perused the record of the case carefully.

(3.) HOWEVER , it is argued by learned Counsel for the respondents that iii view of Order XXL Rule 122, CPC no enquiry could be made under Rule 98 and Rule 100, CPC as Harishchandra judgment -debtor has transferred the suit for ejectment by Ramanlal against him. It is argued by learned Counsel for the respondents that nothing in Rule 98 and Rule 100, CPC applies to resistance or obstruction in execution of decree for the possession of immovable property by a person to whom the judgment -debtor has transferred the property after institution of the suit, in which the decree was passed because of the provision of Order XXI, Rule 102, CPC. This position was, also not seriously disputed; by learned Counsel for the appellants. However, the following, two points were urged: