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Shiv Lal Vs. Mohanraj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 187 of 1977
Judge
Reported in1977WLN(UC)462
AppellantShiv Lal
RespondentMohanraj and ors.
DispositionApplication dismissed
Excerpt:
civil procedure code - order 21 rule 97--application under order 21 rule 91 can be made by decree holder or auction purchaser and not by an objector--no application made under order 21 rule 97 to executing court--held, order made by executing court to proceed further was justified.;revision dismissed - - if a third person is dispossessed of immovable property in execution of a decree, then he can complain of such dispossession by making an application under order xxi, rule 99 code of civil procedure......states that the decree-holder has not filed any application under order xxi, rule 97 code of civil procedure and the application which was submitted by him on september 14, 1977, before the executing court was in furtherance of the proceedings under order xxi, rule 34, code of civil procedure. an application under order xxi, rule 97 code of civil procedure is not maintainable on behalf of the objector shivlal. it is undisputed that proceedings for determination of the question relating to the right title or interest in the property in dispute, under rule 101 of order xxi, code of civil procedure, could only be initiated if an application either under rule 99 of order xxi, code of civil procedure, is presented before the executing court. under order xxi, rule 97, code of civil.....
Judgment:

D.P. Gupta, J.

1. The learned Counsel for the decree-holder states that the decree-holder has not filed any application under Order XXI, Rule 97 Code of Civil Procedure and the application which was submitted by him on September 14, 1977, before the executing Court was in furtherance of the proceedings under Order XXI, Rule 34, Code of Civil Procedure. An application under Order XXI, Rule 97 Code of Civil Procedure is not maintainable on behalf of the objector Shivlal. It is undisputed that proceedings for determination of the question relating to the right title or interest in the property in dispute, under Rule 101 of Order XXI, Code of Civil Procedure, could only be initiated if an application either under Rule 99 of Order XXI, Code of Civil Procedure, is presented before the executing court. Under Order XXI, Rule 97, Code of Civil Procedure, an application complaining of resistance or obstruction to the delivery of possession by a third person can be presented only by the decree-holder or the auction purchaser or a person claiming under them and any third person is not entitled to prefer an application under Order XXI, Rule 97, Code of Civil Procedure. If a third person is dispossessed of immovable property in execution of a decree, then he can complain of such dispossession by making an application under Order XXI, Rule 99 Code of Civil Procedure. But that situation could only arise after the dispossession has taken place and not earlier. Thus, until dispossession takes place, it is only the decree-holder or the auction purchaser who can initiate the proceedings under Order XXI, Rule 97, Code of Civil Procedure, complaining of an obstruction or resistance in the delivery of possession and on such an application all questions, including those relating to right, title or interest in the property in dispute can be agitated before and determined by the executing court under Order XXI, Rule 101, Code of Civil Procedure. Of course if the person who tries to resist or obstruct the delivery of possession in execution of the decree for possession of an immoveable property is the transferee pendenti lite of the judgment-debtor, having obtained possession during the pendency of the suit in which the decree was passed, then under Rule 162 of Order XXI, Code of Civil Procedure, the provisions of Rules 98 and 100 shall not apply to such a case. But in other cases, the executing court will have to decide the question of right, title or interest of a third person, if proper proceedings in tint respect are initiated by the decree holder or the auction purchaser, complaining of residence or obstruction in the delivery of possession by such a third person.

2. As in the present case learned Counsel for both the parties are agreed that there was no application under Order XXI, Rule 97. Code of Civil Procedure, before the executing court which required to be determined by it, the order passed by that court that execution may proceed further appears to be justified. Moreover, it may be made clear that this Court in its earlier order dated September 5, 1977 did not give any final finding or for that matter any finding at all on the question as to whether the objector was entitled to resist the execution proceedings or not. The earlier revision application filed by the objector was dismissed on the ground that the objection-petition was not maintainable and there was no decision on the merits. It cannot, therefore, be implied that this Court approved of the decision of the executing court regarding the merits or demerits of the alleged claim of the objector.

3. With the aforesaid observations, the revision application is dismissed.


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