Sat Pal vs Raj Kaushalya And Anr.
1987 Latest Caselaw 432 Del

JUDGMENT

P.K. Bahri, J.

(1) This appeal has been brought against order dated December 13, 1984, of Shri Ravi Kumar, Additional District Judge, by which he had dismissed the objection petition filed by the appellant as being not maintainable inasmuch as the execution application had been withdrawn by the decree holder.

(2) The facts, in brief, are that the father of the appellant had entered into an agreement of sale with the decree holder-respondent on the 6th June 1979 under which he agreed to sell house No. E-153, Outram Lines, Kingsway Camp, Delhi, for a consideration of Rs. 20,000.00 . It was mentioned in the agreement that under the scheme of the government the said house has to be demolished by the Municipal Corporation of Delhi and in lieu of the said house, vendor was to be given possession of a plot No. 630, Dr. Mukerjee Nagar, Delhi and he would hand over the possession of the said plot to the vendee on execution and the registration of the sale-deed. On failure on the part of the vendor to perform his part of the contract the decree holder brought a suit seeking specific performance of the agreement for enforcing the vendor to execute and register the sale deed in her favor and also sought relief of possession in respect of the said property. The suit was decreed but only relief of specific

(3) However, as the Judgment Debtor-vendor failed to comply with the decree, an execution application was filed by the respondent-decree holder seeking execution of the sale deed and also for possession of the said property. It is admitted case that during the execution proceedings the present appellant filed an objection petition pleading that the property at Kingsway Camp had been allotted in lieu of some ancestral property and thus appellant was in possession of the said property as a coparcener and was not liable to be dispossessed in execution of the said decree to which he was not a party and no sale deed should be executed in favor of the decree holder by the judgment debtor or by the court. That objection petition was dismissed by the court on the finding that the same was premature as no warrants of possession had been yet issued. The appellant did not challenge that order by filing any appeal or revision. Later on the sale deed was executed and registered through the process of the court in favor of the decree holder. It is also pertinent to mention that the decree holder had moved an application under Sections 151 and 152 of the Code of Civil Procedure for correction of the judgment and the decree in order to get the relief of possession incorporated in the judgment and the decree, but that application was later on withdrawn by the decree holder. It so happened that after execution and registration of the sale deed in favor of the decree holder, the appellant again filed objections objecting to the said execution and registration of sale deed in favor of the decree holder at his back. He pleaded that it has been done by practicing some fraud. The appellant claimed that he was in possession of the property and so he was not liable to be dispossessed. He instituted a civil suit for injunction restraining the decree bolder from taking possession of the property on the basis of the aforesaid sale deed and that suit is still pending.

(4) The crucial question which arose for decision in the present appeal is whether the objections of the appellant are maintainable or not. It is evident that there is no decree passed by the court for relief of possession. The decree holder has already withdrawn his application seeking incorporation of such relief in the judgment and the decree. Order Xxi Rule 97 of the Code of Civil Procedure, applies where there is a decree for possession and an application is given by the decree holder for getting possession of the property and resistance is offered by anyone and then it enables the decree holder to move an application to get the possession on the plea that a person who has resisted the possession is liable to be dispossessed in execution of the decree. The person who claims to be in independent possession can always file objections and then court is called upon to decide whether a person in possession is liable to be dispossessed in execution of the decree to which he was not a party. But in the present case the decree holder is not seeking to dispossess the appellant in execution of the decree. So the question of executing court deciding the objections of the appellant on merits did not arise.

(5) Counsel for the appellant has urged that after the sale deed had been registered in favor of the decree-holder the house at Kingsway Camp had been demolished and the Delhi Development Authority has delivered possession of the plot at Dr. Mukerjee Nagar to the decree-holder. He has argued that in case there had been no decree in favor of the decree holder and no sale deed executed in favor of the decree holder, the decree holder could not have managed to obtain possession of the plot from the Delhi Development Authority, that plot is admittedly allotted in lieu of the house at Kingsway Camp. However, it is not understood how the executing court can go into this question as to whether the decree holder was entitled to get possession of the plot from the Delhi Development Authority. In case the appellant had been dispossessed in execution of the decree for possession, then the appellant could file an application under Order Xxi Rule 99 of the Code of Civil Procedure, for getting back the possession if he was to prove that he was in possession independently of judgment debtor and thereafter the court was to follow the procedure given in Order Xxi Rules 100 to 103 of the Code of Civil Procedure, in deciding such an application. But in the present case the appellant has not been dispossessed from any property in execution of any decree. The wordings in Order Xxi Rule 99 of the Code of Civil Procedure, is to the following effect : "R.99. Dispossession by decree-holder or purchaser- (1) where any person other than the judgment-debtor is dispossessed of immoveable 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) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

So, it cannot be urged by the learned counsel on behalf of the appellant that the executing court should have decided the objections of the appellant on merits when it is clear that the executing court had not issued any warrants of possession and the appellant had not been dispossessed in execution of any warrants of possession. In Tulsi Charan Das v. Subal Chandra Das & Others, , it was held that dispossession mentioned in Order Xxi Rule 100 must be in course of the execution proceedings and where the alleged dispossession was not in the course of such proceedings, an application under Order Xxi Rule 100 of the Code of Civil Procedure, does not lie.

(6) Counsel for the appellant made reference to certain case law which only lays down that even if execution application is dismissed and decree holder had obtained possession in execution of the decree, the objections have to be gone into on merits' There is no two opinions about this proposition of law. There is also no dispute about proposition of law that even before warrants of possession are issued the third person claiming independent title can file an objection petition but he can do so if there is a decree for posses- sion passed in favor of the decree holder which is not the case here. The relief of the appellant was obviously to be obtained by filing a civil suit which he has already filed. Hence, I hold that there is no merit in this appeal which I hereby dismiss. In view of the facts that no one appeared on behalf of the respondent at the stage of arguments, I pass no order as to costs.