1. This is an appeal by one Narotam who filed an objection in the course of execution proceedings instituted by Sardaru decree-holder against the State of Himachal Pradesh as judgment-debtor. His objection was dismissed by the execution Court and so was his appeal by the District Judge.
2. I need not go into the question -whether a revision rather than an appeal was the proper remedy, for even if the proper remedy was by a petition in revision, this would be a clear case for interference due, as I shall presently show, to the Courts below having exercised jurisdiction which did not really vest in them.
3. One Sudama left an estate totalling 28 bighas and 15 biswas. He owned malguzari rights in 22 bighas and 12 biswansis out of the said area and the rights of a tenant-at-will in the remaining 6 bighas 14 biswas and 8 biswansis which was grass land. The State took the property by escheat on the death of Sudama. Thereupon Sardaru, claiming to be a reversioner, filed a suit against the State for recovery of possession of the property left by Sudama, and he obtained a decree on 10-12-1948. After obtaining the decree Sardaru put it into execution against the State and prayed for recovery of possession of the said land. In that execution Narotam filed an objection on 21-4-1950 challenging the right of Sardaru decree-holder to eject him. Narotam based his objection on two grounds: (1) that he had been holding the cultivated land of 22 bighas and 12 biswansis as a tenant, and been in possession of the remaining grass land as a sub-tenant, of Sudama, and (2) that pending the said litigation between Sardaru and the State the latter had settled half the area of the agricultural land with him on payment of 'nazrana'. Both the Courts below have gone into the merits of the objection and dismissed it. In doing so they have done something which they were not called upon to do.
4. By the date on which the objection was filed not even a warrant of 'dakhal' for putting the decree-holder into possession had been issued. The decree-holder had simply prayed to be put in possession of the property, and this prayer was made only against the judgment-debtor, the State of Himachal Pradesh. The decree-holder was certainly entitled to do so on foot of the aforesaid decree. He never prayed that Narotam or anybody be ejected from any portion of the land. Narotam had therefore no cause of action whatsoever for filing the aforesaid objection on 21-4-1950, as he did. Of course, if he were actually dispossessed, of the land in question, or any portion of that land, it would have been open to him to come forward with an application to the execution Court under Order 21, Rule 100, C. P. Code. His application, would then have been enquired into, and, if it were decided against him, he would have had a right of suit under Rule 103. It was not even obligatory on him to file an application under rule 100, for, independently of any such application, he could also have brought a suit against the person dispossessing him, i.e., against Sardaru.
It is said that subsequent to the institution of the present appeal the warrant of 'dakhal' has been executed, it being a matter of controversy between the learned counsel for the parties whether actual 'dakhal' has or has not been obtained by the decree-holder. With this however I am not concerned because that is something which has happened long after the institution of the objection dated 21-4-1950. From what has been stated above, therefore, it is manifest that Narotam had no cause of action -whatsoever for filing the aforesaid objection on 21-4-1950: the objection was premature. Narotam's objection should have therefore been dismissed on that ground alone, and the Courts below were not justified in going into the merits of the objection. In the circumstances, whatever the Courts below have adjudged on the merits of the objection is mere obiter dictum and will not affect the rights of the parties in any possible future litigation between them. I maintain the orders of the Courts below on the short ground that Narotam's objection was premature and without going into merits of the allegations contained in that objection.
5. In the light of the above observations, thepresent appeal is dismissed, but I make no orderas to the costs of this appeal.