JAIRAM JADOWJI Vs. NOWROJI JAMSHEDJI PLUMBER

JUDGEMENT

(1.) The plaintiffs filed a suit against the defendant to recover possession of their property situated at Bhendy Bazaar which was in the defendant's occupation as a monthly tenant. A consent decree was passed on the 18 of August 1920, whereby it was ordered that the defendant should give to the plaintiffs possession of the whole of the house mentioned in the plaint, excepting the northern half of the ground floor of the said building then in the occupation of the defendant as a shop and the verandah occupied by a fruit-seller, on or before the 1 September 1920. The defendant was also ordered to give vacant possession of the said verandah to the plaintiffs on or before the 15 September 1020. The defendant failed to give possession of the verandah occupied by the fruit-seller, so that the plaintiffs applied for execution of the decree and prayed for delivery of possession of the verandah, but the fruit- seller declined to vacate and consequently the plaintiffs were forced to take out this summons against the fruit-seller asking for an order that he should vacate the premises and pay compensation of Rs 50 per month from the 15 September 1920 till possession was given.

(2.) The application is made by the plaintiffs in execution of their decree under Order XXI, Rule 97 (Civil Procedure Code) which says:- Where the holder of a decree for the possession of immoveable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, be may make an application to the Court complaining of such resistance or obstruction.

(3.) Rule 98 deals with the obstruction caused by the judgment-debtor or by some other person at his instigation. It is not suggested in this case that the fruit-seller is refusing to vacate at the instigation of the judgment-debtor. Rule 99, therefore, applies, which says :- Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other that the judgment debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.