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Harijan Wood Workers Production-cum-sales Co-operative Society Ltd. Vs. Maya Wati and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 970 of 1982
Judge
Reported inAIR1985P& H181
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantHarijan Wood Workers Production-cum-sales Co-operative Society Ltd.
RespondentMaya Wati and anr.
Cases ReferredDhian Chand v. Parkash Kaur
Excerpt:
.....of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - in other words at that stage he is entitled to be in defensive but cannot take an offensive step. the court will dispose of the application on merits and grant relief of temporary injunction if the plaintiff is able to establish prima facie strong case in..........in its own right as owner and, therefore, was not bound by the order of ejectment obtained by the decree-holder. the decree-holder contested the objection petitions and inter alia pleaded that the objections were not maintainable by the objector and that these were got filed by mohan lal judgment-debtor through his relations who were members of the society. it was also pleaded that earlier on kushi ram a relation of mohan lal, judgment-debtor filed a civil suit claiming himself to be the owner in possession of the property and the same had been dismissed.3. on the pleadings of the parties, three issues were framed. later, an issue with regard to the maintainability of the objection petitions, which is as follows, was framed and tried as a preliminary issue:-'whether the objection.....
Judgment:

Rajendra Nath Mittal, J.

1. This revision petition has been filed by the objector against the order of the Subordinate Judge Ist Class, Jullundur, dt. 25th Mar. 1982.

2. Briefly, the facts are that Smt. Maya Wati obtained an order of ejectment from the property in dispute against Mohan Lal on 30th April, 1980. She filed an execution application against the judgment-debtor in which warrant of possession was ordered to be issued. While the execution proceedings were pending, the objector, through its President, filed two objection petitions inter alia on the ground that it was in possession of the property since long in its own right as owner and, therefore, was not bound by the order of ejectment obtained by the decree-holder. The decree-holder contested the objection petitions and inter alia pleaded that the objections were not maintainable by the objector and that these were got filed by Mohan Lal judgment-debtor through his relations who were members of the society. It was also pleaded that earlier on Kushi Ram a relation of Mohan Lal, judgment-debtor filed a civil suit claiming himself to be the owner in possession of the property and the same had been dismissed.

3. On the pleadings of the parties, three issues were framed. Later, an issue with regard to the maintainability of the objection petitions, which is as follows, was framed and tried as a preliminary issue:-

'Whether the objection petitions are maintainable? OPO'

The Court came to the conclusion that the objection petitions were not maintainable by the objector. Consequently, it dismissed the objection petitions. The learned Motion Bench, finding some divergence of opinion, admitted the revision petition to a Division Bench. That is how the matter is listed before us.

4. The question that requires determination is whether any person other than the judgment-debtor can file an objection petition under R. 97 of O. 21 on the ground that he is not liable to ejectment in execution of a decree obtained by a decree-holder against the judgment-debtor. In order to determine the question, it will be necessary to read O. 21, Rr. 97 and 99, of Civil P. C. (hereinafter referred to as the Code), which are as under:--

'97. Resistance or obstruction to possession of immovable property--(1) Where the holder of a decree for the possession of immovable 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, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-r(1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

99. Dispossession by decree-holder or purchaser--(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained'.

From a bare reading of the aforesaid Rules, it is clear that if a decree-holder is resisted or obstructed by any person in obtaining possession of the property, he can make an application under R. 97 complaining of the resistance or obstruction. The person causing resistance or obstruction is not entitled under that rule to make an application. However, if the decree-holder makes the necessary application, the person causing the resistance or obstruction is entitled to defend his conduct. In other words at that stage he is entitled to be in defensive but cannot take an offensive step. In case he wants to take such a step he can do so under R. 99 but after surrendering possession. The Rule has been framed to protect the decree-holder from frivolous claims by third persons. All questions arising between the parties to the proceedings, on an application under R.97 or R. 99 and relevant to the adjudication of the application are now required to be determined by the Court dealing with the application. However, if the person in possession wants to raise any dispute before surrendering possession, he can do so by filing a suit for declaration of his title to the property. During the pendency of the suit, he can protect his possession by making an application for temporary injunction. The Court will dispose of the application on merits and grant relief of temporary injunction if the plaintiff is able to establish prima facie strong case in his favour. Therefore, we are of the opinion that any person other than the judgment-debtor cannot file an objection petition under R. 97 on the ground that he is not liable to ejectment in execution of a decree obtained by the decree-holder against the judgment-debtor.

5. In the above view, we are fortified by the observations of the Full Bench of Madh Pra High Court in Smt. Usha Jain v. Manmohan Bajaj AIR 1980 Madh Pra 146, wherein it was observed that the executing Court had no jurisdiction to start an inquiry at the instance of a third party other than the decree-holder under O. 21, R. 97. This judgment was a followed by two Single Benches of this High Court in Om Parkash v. M/s. Durga Das Harbans Lal, (1981) 2 Rent LR 331, and Sushil Kumar v. Ved Parkash, (1983) 2 Rent LR 710, R. 97, as it stood before the coming into force of the Civil P. C. (Amendment) Act, 1976, was interpreted by P. C. Pandit, J. in Smt. Kamla Devi v. Surinder Kumar 1969 Cur LJ 131 (Punj & Har). The learned Judge observed that under R. 97, it was only the holder of a decree for possession of immovable property or the purchaser of such a property in Court auction who could take proceedings when he was resisted or obstructed by any person in obtaining possession of the property. So far as sub-r. (1)of that Rule is concerned, there is no change after the amendment. There is a change in sub-r (2), but that relates to procedure. Therefore, the above observations are fully applicable even now. We are in respectful agreement with the view expressed in the above cases.

6. The learned counsel for the petitioner made a reference to Dhian Chand v. Parkash Kaur (1978) 80 Pun LR 216: (AIR 1978 Punj & Har 221). That case was also decided under the Rules as they stood before the coming into force of the C.P.C. (Amendment) Act. The learned Chief Justice in that case took a contrary view. With great respect to the learned Chief Justice, we have not been able to persuade ourselves to accept the view taken in that case. We, therefore, overrule the same.

7. For the aforesaid reasons, we do not find any merit in the revision petition and dismiss the same with costs.

8. Revision dismissed.


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