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Dargah Committee Vs. Abdul Gafoor and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 332 of 1976
Judge
Reported inAIR1978Raj129; 1977()WLN638
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 21, Rules 97 and 98
AppellantDargah Committee
RespondentAbdul Gafoor and anr.
Advocates: C.K. Garg and; G.K. Garg, Advs.
DispositionRevision allowed
Cases ReferredBhagwat v. Kasturi
Excerpt:
.....refused to give possession & obstructed execution of decree--executing court directing decree holder to make application under order 21 rule 91 held, executing court has acted illegally and with material irregularity.;the report of the sale-amin dated 21st november, 1975 that ghosh mohammed was found at the shop and he refused to deliver possession of the same and resisted or obstructed execution n| the decree. when such a contingency arose, it was open to the executing court to take notice of the report of the sale amin and pass such order as it thought proper in the circumstances of the case the court could have refused to issue any process for execution of the decree, or could have declined to pass orders fur giving forcible possession to the decree holder. the executing..........1975, praying that he is not bound by the decree which has been passed in favour of the plaintiff decree-holder against his father abdul gafoor. it was further contended by him that he has been in possession of the shop in question in his own right and has made substantial constructions within the premises. the application under section 151. cpc by ghosh mohammad was resisted by the plaintiff, dargab committee. ajmer, and it was contended that the decree of ejectment was passed against abdul gafoor as he had committed default in payment of rent and that ghosh mohammad is bound by the decree as he is the son of the judgment-debtor, and he has filed the present petition at the instance of the judgment debtor. after hearing the parties, the learned trial court stayed the execution of the.....
Judgment:
ORDER

P.D. Kudal, J.

1. This revision petition under Section 115. CPC is directed against the order of the learned Munsiff & Judicial Magistrate, Ajmer City (West), dated 17th April, 1976.

2. The facts of the case, in brief, which are relevant for the disposal of this revision petition are that the Dargah Committee, Ajmer obtained a decree of ejectment against Abdul Gafoor, judgment-debtor. When the decree of ejectment was sought to be executed Ghosh Mohammad obstructed the execution of the decree by way of resisting the delivery of possession. Ghosh Mohammad moved an application under Section 151, CPC on 28th Nov. 1975, praying that he is not bound by the decree which has been passed in favour of the plaintiff decree-holder against his father Abdul Gafoor. It was further contended by him that he has been in possession of the shop in question in his own right and has made substantial constructions within the premises. The application under Section 151. CPC by Ghosh Mohammad was resisted by the plaintiff, Dargab Committee. Ajmer, and it was contended that the decree of ejectment was passed against Abdul Gafoor as he had committed default in payment of rent and that Ghosh Mohammad is bound by the decree as he is the son of the judgment-debtor, and he has filed the present petition at the instance of the judgment debtor. After hearing the parties, the learned trial Court stayed the execution of the decree and directed the decree-holder to file a petition under Order 21, Rule 97, CPC. It was further directed that the execution of the decree shall be stayed till a decision is given on the application under Order 21, Rule 97, CPC.

3. The respondents remained absent despite notice, and hence the revision petition was heard ex parte against them,

4. On behalf of the decree-holder petitioner it was contended that the learned Munsiff acted illegally and with material irregularity in exercise of his jurisdiction in directing the decree-holder to file a petition under Order 21, Rule 97, CPC. It was further contended that the learned trial Court erred in lawin holding that the petitioner Ghosh Mohammad was not bound by the decree which was passed against his father. Reliance was placed on Ibrahim v. Phool-chand 1960 Raj LW 618 and Dhananjai v. Ram Kumar 1963 Raj LW 18. In ibrahim v. Phoolchand it was held that in case of obstruction by a third party, the Court cannot pass order for delivery of possession by force unless the decree-holder moves an application. In Dhanan-jai v. Ram Kumar it was held that before investigation is made under Rule 97 of Order 2l it is necessary that an application should be made to the Court by the decree-holder that he was being obstructed in the execution of the decree and that no investigation can be made on am application of a third party who claims to be in possession. In the present case, the decree-holder has not yet complained of the obstruction. It was further held that the executing Court has ample power to deliver possession even against a person who was not a party to the original suit provided it is satisfied that the person offering resistance to delivery of possession has no bona fide claim.

5. The learned trial Court placed reliance on Bhagwat v. Kasturi (AIR 1974 Madh Pra 26) wherein it was held that the executing Court has no jurisdiction to remove a third party not bound by the decree from possession and deliver possession to the decree-holder or auction-purchaser, unless and until (a) it holds that such a person is bound by the decree or (b) it makes an order under Order 21, Rule 98. Civil P. C. which presupposes the making of a complaint by the decree-holder under Order 21, Rule 97, of the Code. As soon as the third person resists or obstructs delivery of posession. the executing Court must stay its hands, until the decree-holder either satisfies it that such a person is bound by the decree, or makes an application under Order 21, Rule 97, complaining resistance or obstruction. The third person can give intimation in writing to the executing Court of his intention to resist or obstruct after or even before a warrant of possession is issued. It is not necessary that he should use force or there should be a show of force on his behalf at the spot. The enquiry must be summary and the proceeding must be disposed of expeditiously bearing in mind its scope and the limited question to be decided.

6. It was also contended on behalf of the decree-holder that Ghosh Mohammed filed the suit No. 430/1974 and prayed for an injunction against the decree-holder restraining him from executing the decree till the disposal of the suit. An application for injunction which was filed in suit No. 430/1974 was not allowed by the Court. Order 21 Rule 97 reads as under:--

'Rule 97 (1) 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, he may make an application to the Court complaining 'of such resistance or obstruction.

(2) The Court may fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.'

7. From a perusal of the provisions of Order 21, Rule 97, CPC it is abundantly clear that whenever a decree-holder isobstructed or resisted in any proceedings in obtaining the possession of the property, he may make an application to the Court complaining of such resistance or obstruction. The Court will then take recourse to the provisions of Order 21, Rule 98, CPC where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation; it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession the Court may also, at the instance of the applicanat. order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.

8. The report of the Sale-Amin dated 21st Nov. 1975, that Ghosh Mohammed was found at the shop and he refused to deliver possession of the same and resisted or obstructed execution of the decree. When such a contingency arose, it was open to the executing Court to take notice of the report of the Sale-Amin and pass such order as it thought proper in the circumstances of the case. The Court could have refused to issue any process for execution of the decree, or could have declined to pass orders for giving forcible possession to the decree-holder. The executing Court has absolutely no jurisdiction to direct the decree-holder to file an application under Order 21, Rule 97. C. P. C. if the decree-holder is resisted or obstructed in execution of the decree which has brought him to make an application under Order 21 Rule 97, CPC. The question whether Ghosh Mohammad is in possession of the suit property in his own right or through the judgment-debtor would be decided in the investigation which would follow an application under Order 21, Rule 97. CPC, if the decree- hold or so chooses to make.

9. An application under Section 151, CPC made by the petitioner, Ghosh Mohammad, can only be an information to the executing Court that the petitioner claims himself to be in possession of the suit property in his own right and not through the judgment-debtor. None the less the executing Court can entertain an application under Order 21 Rule 97, CPC only by the decree-holder, and not by the person who claims to be in possession of the suit property in his own rights.

10. Having given my most anxious consideration to the contentions of the learned counsel for the parties, I am of the considered opinion that the learned trial Court acted illegally and with material irregularity in exercise of its jurisdiction in directing the decree-holder to file a petition under Order 21. Rule 97, CPC, and in further directing that the execution of the decree shall be stayed till the disposal of the application under Order 21, Rule 97. CPC. The executing Court, was very well within its jurisdiction to decline to execute the decree in view of the report of the Sale Amin dated 21/11/ 1975, or could have passed such orders, as in the circumstances of the case, the Court deemed fit and proper.

11. For the reason stated above, the revision petition is hereby allowed and the order of the learned lower Court dated 17th April. 1976 is hereby set aside. There shall be no order as to costs.


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