PADMA VYAS Vs. KISHAN KUMAR

JUDGEMENT

(1.) Having heard learned Counsel for the appellants and having perused the impugned orders, this Court is clearly of opinion that this second appeal does not involve any substantial question of law and does not merit admission.

(2.) It appears that resisting recovery of possession by the decree-holder-respondent No. 1 in execution of the decree dated 22.01.1996 passed in Civil Suit No. 73/1993 against the respondents Nos. 2 to 4 (as legal representatives of the original defendant Himmat Singh), the appellants submitted an application under Order XXI Rule 99 & Rule 101 of the Code of Civil Procedure (CPC) with the submissions that the suit house was constructed by them during the years 1970-1975 and they were residing thereat as owners but were not impleaded parties in the aforesaid suit for recovery of possession; and prayed that the process issued in Execution Case No. 15/1996 be withdrawn and the decree-holder- respondent No. 1 be restrained from dispossessing the appellants. The decree-holder-respondent No. 1 opposed the said application with the submissions, inter alia, that the application was moved by the appellants only at the instance of the judgment-debtors to avoid execution of the decree; and that the appellants had no title or interest in the property in question.

(3.) The learned Executing Court put the matter to trial and with reference to the oral and documentary evidence produced on record by the parties, came to the conclusion that the suit for recovery of possession was rightly maintained against the defendant Himmat Singh and the applicants (present appellants) have failed to show if they were in possession of the suit property in their independent right. The learned Executing Court also noticed the fact that the applicants did file a suit bearing No. 87/2001 claiming their rights in the property in question on the basis of adverse possession and the said suit was dismissed by the Trial Court on 16.05.2002. In an overall comprehension of the matter, the Executing Court did not find any substance in the application under Order XXI Rule 99 & Rule 101 CPC and rejected the same.