PRAKASH SOLANKI Vs. TEK SINGH

JUDGEMENT

(1.) The present second appeal has been filed against the concurrent judgment of two Courts below. The first appellate Court vide judgment dtd. 5.5.2006 as well as the learned trial Court vide its judgment dtd. 23.1.2006 rejected objections of the present appellant Prakash Solanki S/O respondent No. 2 Mistri Achla Ram against an eviction decree in respect of suit premises, a residential house situated at Thanvi building, Station Road, Jodhpur under Order 21 Rule 97 C.P.C.

(2.) The said appellant-objector Prakash Solanki contended before the Courts below as well as before this Court through his counsel Sh. M.C. Bhoot that he was not impleaded by the respondent No. 1 Tek Singh who filed an eviction suit against the respondent No. 2 Achla Ram, his father despite in know of the fact that he was in possession of the suit property; a residential house and therefore, he was not bound by the decree. He further submitted that in suit filed by the present appellant seeking injunction against the respondent No. 1 Tek Singh, namely, the suit No. 103/2000- Prakash Solanki vs. Tek Singh, on a compromise between the parties, the learned trial Court had decided on 23.5.2003 that the plaintiff Prakash Solanki would not be dispossessed from the suit premises without due possess of law. According to the appellant, the respondent No. 1 Tek Singh had purchased the said suit property from Mangi Lal on 17.1.1998 and thereafter filed a suit No. 130/2000 for eviction against the respondent No. 2 Achla Ram without impleading the present appellant Prakash Solanki therein and got the decree of eviction which became final after the first appeal filed by Achla Ram was dismissed by the appellate Court. Mr. Bhoot submitted that the partition suit was going on between Mangi Lal and Bhangwar Lal and therefore, during the pendency of the partition suit, the sale of said property by Mangi Lal to the present respondent No. 1 Tek Singh was illegal and the present-appellant Prakash Solanki was paying rent to Sh. Bhanwar Lal since 1991, therefore, the decree passed against Achla Ram, his father was not binding upon him, since he was not impleaded as defendant in the eviction suit. Mr. Bhoot submitted that the Courts below have erred in holding that the decree against his father Achla Ram bound the present appellant Prakash Solanki also, whereas he was an stranger to the said decree and therefore, a substantial question of law anises in the present second appeal. He further submitted that the executing Court had wrongly held that the present appellant-objector Prakash Solanki could also file an application under order 21 Rule 97 C.P.C. in executing Court raising his objection, whereas such application under Order 21 Rule 97 CPC can be filed only by the decree holder as per the provisions of Order 21 Rule 97 C.P.C. and therefore, the very premise of the impugned judgments of the Courts below was not available. He has urged that the present appellant could not be bound by the decree against his father merely because he was the son of the judgment debtor Achla Ram and since he was claiming independent right in the said suit property as tenant of Bhanwar Lal, therefore, the objections filed by him have been wrongly rejected by the Courts below.

(3.) Mr. M.C. Bhoot relied upon the following judgments in support of his submissions: (i) Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another - 1997(3) SCC 694 (ii) Ibrahim vs. Phool Chand - 1960 RLW 618 (iii) Balraj Singh and another vs. Ajit Singh - 2004(4) WLC (Raj.) 85