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Ghulam Mohd. Khan Vs. Ghulam Rasool Bhat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 100 of 1985
Judge
Reported inAIR1986J& K17
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rules 29 and 100
AppellantGhulam Mohd. Khan
RespondentGhulam Rasool Bhat and ors.
Appellant Advocate Zahoor Ahmad, Adv.
Respondent Advocate S.T. Hussain, Adv.
DispositionRevision dismissed
Excerpt:
- .....same. the second appeal was taken in the matter which was dismissed by the high court in 1985. the decree-holder filed an execution application for the possession of the suit shop. in the meanwhile the objector who is the petitioner herein filed an application in the executing court stating therein that he was in possession of the suit' shop since 1975 as a lessee and therefore could not be dispossessed. he further averred that he was not a party in the litigation between the decree-holder and the judgment-debtor and therefore the decree was not binding upon him and nor could he be ejected in pursuance of such a decree. the decree-holder resisted his application on the ground that he was an agent of the judgment-debtor and wanted to defeat the decree. not only that the petitioner has.....
Judgment:
ORDER

S.M. Rizvi, J.

1. This Civil Revision is directed against the order of the learned Sub-Judge, Anantnag dated 15-6-1985 rejecting an application of the objector in the execution proceedings.

2. Before admission of this Revision a notice was given to the respondents. They have appeared through their counsel. Now it is to be seen as to whether this Revision should be admitted to hearing or not.

3. The facts giving rise to this revision may be briefly stated as under :--

4. The father of respondents 1 to 10 filed a suit for ejectment from the shop in question against the respondent No. 12 as far back as on 12-11-1975 in the Court of Sub-Judge, Anantnag. The suit was decreed in favour of the plaintiff. An appeal was preferred against the said judgment and decree but the learned District Judge, Anantnag dismissed the same. The second appeal was taken in the matter which was dismissed by the High Court in 1985. The decree-holder filed an execution application for the possession of the suit shop. In the meanwhile the objector who is the petitioner herein filed an application in the Executing Court stating therein that he was in possession of the suit' shop since 1975 as a lessee and therefore could not be dispossessed. He further averred that he was not a party in the litigation between the decree-holder and the judgment-debtor and therefore the decree was not binding upon him and nor could he be ejected in pursuance of such a decree. The decree-holder resisted his application on the ground that he was an agent of the judgment-debtor and wanted to defeat the decree. Not only that the petitioner has also filed a suit for injunction against the decree-holders in the Court of Munsiff Ashmuqam for nullifying the decree. The learned Executing Court rejected the application of the objector (petitioner herein) and hence the Revision.

5. I have heard the learned counsel for the parties and have examined the relevant record.

6. As stated above the case is still at its admission stage which is the short point presently under consideration.

7. Mr. Zahoor, learned counsel for the petitioner argued that under Order 21, Rule 29, Civil Procedure Code the Executing Court was bound to stay the execution of the decree in question till the suit filed by the petitioner against the decree-holders (respondents 1 to 11 herein) was decided by the trial Court. This argument is apparently misconceived. Order 21, Rule 29 is applicable only to a decree-holder and the judgment-debtor and not to an Objector. The petitioner-objector was not a party to the suit between the decree-holders and the judgment-debtor and therefore he cannot seek stay of the execution under the said order. His application cannot even be covered by Order 21, Rule 100 Civil Procedure Code which is applicable to an objector who is dispossessed in pursuance of a decree. It may be advantageous to reproduce Order 21, Rules 100 and 101 to bring home the point in controversy.-

Order 21, Rule 100.-

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

Order 21, Rule 101 reads as under.-

101. Where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor it shall direct that the applicant be put into possession of the property.

8. From the bare perusal of these rules it is clear that when any person other than the judgment-debtor is dispossessed by the decree-holder, he may make an application to the Court complaining of such dispossession. He cannot make such an application before his dispossession. If the court after investigating his claim finds that he was in possession of the property on his own account, it has got the power to restore his possession under Order 21, Rule 101 Civil Procedure Code. The Objector however cannot be allowed to defeat the decree-holder in this way. If this is allowed to happen then no decree of ejectment can be ever executed.

9. Needless to say that the Objector has already chosen the proper forum for establishing his claim and under law that is the only forum available to him. He has filed a suit for permanent injunction in the Court of Munsiff, Ashmuqam and he is free to plead his case there. He shall have to establish it before that court that he was in possession of the suit shop and not in the Executing Court.

10. In these circumstances of the case 1 am of the opinion that the petitioner has failed to make out a case for the admission of this Revision, which is hereby dismissed in limine.

11. Let the record be remitted back to the Sub-Judge, Anantnag for taking further proceedings in the Executive matter. The revision file be consigned to records. Let the respondents appear before the Executing Court on 3rd, August, 1985. The stay granted by this Court on 24th of June, 1985 shall stand vacated.


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