BHANWARLAL Vs. KISHORILAL PARSI

JUDGEMENT

(1.) THE petitioner is an 'objector' to the execution of a decree for eviction, passed against Dhanraj, since deceased, by learned Munsif and Judl. Magistrate, 1st Class, Deedwana on 16.11.1959 in favour of decree -holder Kishori Lal, which was affirmed by the first -appellate court on 27.7.1960 and Second appeal against that was dismissed by this court on 8.5.1963. Bhanwarlal, the present petitioner who is not a judgment -debtor and who claims to be in possession of the suit property in his own right, and not on behalf of the judgment debtor, is resisting the execution of decree, whenever the same have been sought to be executed. In the first instance, on an application moved by the non -petitioner decree -holder under Order 21 Rule 97, complaining about the obstruction and resistance put -forward by the present petitioner in execution of his decree, the application of the decree -holder was rejected by the executing -court on 27.2.1976. Thereafter, another application was moved for execution of the decree by the decree -holder. Again the execution of the same was resisted by the present petitioner and the decree -holder moved a second time an application under Order 21 Rule 97, complaining the obstruction and resistance to the decree by the petitioner Bhanwarlal, which was withdrawn by the decree -holder on 18.11.1978. Again, the decree of eviction has been sought to be executed by the decree -holder. Apprehending that the petitioner may be ejected in execution of said decree, to which he was not a party, by suppressing the aforesaid facts from the court, he has moved an application under Order 21, Rule 99, read with Section 151, CPC, invoking the executing court's jurisdiction to decide his objection to execution. The executing court has rejected the application of the objector -petitioner, on the ground that he is not entitled to move an application under Order 21 Rule 99, as he is in possession of property and an application under Order 21, Rule 99, can be moved only by a person who has been dispossessed' and not by a 'person in possession'; and on that basis, the petitioner's application has been rejected, as pre -mature. On earlier occasion also, a similar application by the present petitioner was rejected as pre -mature, by order dated 28.10.1985.

(2.) LEARNED Counsel for the petitioner urged that the executing court has failed to exercise jurisdiction vested in it by Law, by refusing to entertain petitioner's objection -petition to the execution of decree under execution. He has further stated that even if his application was not liable to be entertained under Order 21 Rule 99, the application could have been entertained and appropriate directions could have been passed under Section 151, CPC. He places reliance on a decision of this court in Dargah Committee. v. Abdul Gafoor and Ann AIR 1976 Raj. 129.

(3.) HAVING considered the rival contentions, of the parties, and examined the scheme of provisions of Order 21 regarding delivery of possession to decree -holder or purchaser of any property, and the procedure to be adopted where resistance to delivery of possession to the decree -holder or purchaser is raised, I am of the opinion, that the trial court has not committed any error in passing the impugned order.