Punjab-Haryana High Court
Nand Lal vs Inderjit And Ors. on 21 January, 1992
Equivalent citations: (1992)102PLR9
JUDGMENT V.K. Jhanji, J.
1. One Madan Lal was the owner of the shop in dispute which was sold to Jagru. This sale was challenged by the sons of Madan Lal; namely, Nand Lal, Kesri Nandan and Krishan Pal on the ground that the sale was not for a consideration and was therefore, without legal necessity. The suit for declaration was decreed and when the matter came up before this Court, the sale was converted into a mortgage and it was held that the mortgage can be redeemed on payment of Rs. 628/- on the death of vendor, Madan Lal. Madan Lal, vendor, died on 23-121969, and thereafter, his sons filed a suit for possession claiming themselves to be the heirs along with Smt. Raj Rani d/o Madan Lal, who was made a proforma defendant. They claimed that they were entitled to the possession of the property on the basis of the decree of redemption of mortgage. The suit was decreed against the respondents who filed an appeal before the District Judge, which was also dismissed on 17-10-1979.
2. Thereafter, decree-holders filed execution application in order to take possession of the shop in dispute. Before possession of the shop could be delivered in execution of the decree, Inderjit Singh who is son of Mukandi Lal, one of the judgment-debtors, filed an objection petition under Section 47, read with Order 21, Rule 58, Civil Procedure Code, challenging the maintainability of ths execution application. He raised an objection that he alongwith his father Mukandi Lal has purchased 2/5th share from Kesri Nandan and Koshalya Devi, two of the decree-holders, and therefore, he cannot be dispossessed from the shop in dispute being one of the co-sharers. This objection petition was resisted by the petitioner and the remaining decree-holders. The following issues were framed by the executing Court :--
1. Whether the objector has purchased one half share of respondents No. 4 and 5 vide registered sale deed dated 9-8-1977 ? OP obj.
2. Whether the objector has obtained possession of the shop in question from the JD ? OP obj.
3. Relief.
Both these issues were decided in favour of objector, Inderjit. The executing Court after finding that objector-Inderjit alongwith Mukandi Lal has purchased 2/5th share and is in possession of the shop in dispute as a co-sharer, held that the only remedy for the remaining decree-holders is to get the property partitioned. This order is being impugned in the present revision petition.
3. No one appears on behalf of respondent, objector. Counsel for the petitioner contended that objection petition under Section 47, C.P.C. was not maintainable on behalf of respondent No. 1 as he was not a party to the suit. He further contended that Order 21, Rule 58, C.P.C. relates to the attachment, whereas, the property has not been attached here; rather, the execution has been filed for the delivery of possession of the shop.
4. After hearing learned counsel for the petitioner, I am Of the view that this revision petition deserves to succeed.
5. Under Section 47, C.P.C, the question arising between the parties to the suit, relating to the execution, can be determined. Where a question for decision does not arise between the parties to the suit or their representatives, it cannot be decided under this Section. Admittedly, objector is not claiming himself to be a representative of the judgment-debtors. The only recourse available to him is a separate suit and not an objection petition under Section 47, C.P.C.
6. The next question which arises for determination is whether any person not claiming through the judgment-debtors, can file objections on the ground that he is not liable to be ejected in execution of decree obtained by decree-holders against judgment-debtors. This proposition is squarely covered by a Division Bench judgment of this Court in Harijan Wood Workers Production-cum-Sales Co operative Society Ltd, v. Smt, Maya Wati, A. I. R. 1985 P. & H. 181. In this case, where provisions of Order 21, rule 97, C.P.C. eame up for consideration before the Division Bench of this Court, it was held as under :--
"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 Rule 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 this stage he is entitled to be in defensive but cannot take an offensive step. In case he wants to take such step he can do so under Rule 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 Rule 97 or Rule 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 grant relief of temporay 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 Rule 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."
7. In view of the Division Bench judgment in Maya Wati's case (supra), respondent, Inderjit could raise an objection only after his dispossession. However, it is open to him, if he so desires, to file a suit for declaration to establish his title to the property. To protect his possession, he can make an application, for the grant of ad-interim injunction, in the suit.
8. Resultantly, the order of the executing Court is set aside and the revision petition is allowed with no order as to costs.