JAGDISH PRASAD Vs. HARI SINGH AND

JUDGEMENT

(1.) THIS revision petition under Sec. 115 CPC has been preferred before this court against the order, dated 2. 11. 1993, passed by Munsif & Judicial Magistrate Kishangarh Bas in Execution Case No. 4/93 whereby the petitioner's application, dated 11. 10. 1993 to adjudicate over his rights in, repect of the suit land was rejected by the trial court.

(2.) THE facts giving rise to the filing of this revision petition briefly stated are that non-petitioner No. l Hari Singh obtained a compromise decree on 5. 2. 93 against non-petitioner Nos. 2 to 5 (defendants in the suit) in respect of the land in occupation and ownership of the plaintiff-decree holder and subsequent to the suit being decreed in favour of non-petitioner No. l, the decree was put to execution in Execution Case No. 4/93. THE Court bailiff of the Court of Munsif, Kishangad Bas visited the suit land in connection with the execution of the decree on 17. 9. 93 and the petitioner (third party to the decree) who was present at the suit land, objected to the execution of the decree by unlawfully raising obstacles to its execution alleging that he was not bound by the decree and none else except the petitioner would have affected by the execution of the said decree. This objection was raised by the petitioner who was stranger to the decree purposely with a view to frustrate lawful execution of the decree notwithstanding the fact that he has neither land nor any house temporary or permanent near the suit land and hence he has no legal right vested in him to raise such objections. This fact stands fully established from the impugned order, dated 2. 11. 1993, passed by the learned trial court wherein it has been specifically observed that the decree-holder in his application for execution of the decree has stated that the dispute which has been raised by the petitioner herein pertains to a passage over which no party has any independent right to assert its title. It has been further observed by the trial court that the petitioner has no property near or over the suit land on the basis of which it can be inferred that the petitioner has any property over the disputed passage. In these circumstances it was observed by the trial court that in absence of possession over the land in dispute, the petitioner has no right to assert his claim over the same. Consequently, the trial court dismissed the application of the petitioner/objector.

(3.) THE petitioner has also placed reliance upon a judgment of this court in the matter of Ibrahim vs. Phoolchand (2), wherein it was observed by this court as under : "if the Amin reports that delivery of possession is obstructed by any one other than the judgment debtor, the court cannot pass an order directing delivery of possession by use of force unless the decree-holder moves an application under Order 21 Rule 97 and a decision is given in his favour on his application after issuing notice to the person obstructing the delivery of possession. " In my opinion the above authority is also of no assistance to the petitioner in view of the fact that the petitioner has no right or title in respect of the suit land and the dispute pertains only to a passage which is a common thorough fare between adjoining fields over which the petitioner has no independent and exclusive right of use which fact is also established from the perusal of the site-plan and the petitioner admittedly cannot assert any legal right of ownership or title over such common passage.