1. This is a motion for the admission of a civil revision directed against the order dt. 20-3-1987 passed by the learned Munsiff, Pulwama, rejecting an application of the petitioner herein filed by him as an objector in the execution proceedings.
2. Briefly stated, the facts giving rise to this revision are that about 15 years back the respondent No. 3 herein filed a suit for declaration and possession in respect of the suit property in question against the respondents 1 and 2 who are brothers of the petitioner. The petitioner was not a party in that suit. The said suit was decreed by the learned Munsiff, Pulwama, which was confirmed by the District Judge and also by the High Court in the second appeal. The decree holder respondent 3 herein filed an application for execution of the decree. The petitioner objected to it and filed a suit for declaration and injunction in this behalf. Along with the suit he filed an application for temporary injunction which was rejected by the trial court. He took a revision against the order of rejection which was dismissed by the High Court. Later on, his suit was also dismissed in default of appearance somewhere in 1966. Consequently, the decree holder again pressed for execution of the decree. The executing court issued orders in this regard. The petitioner again objected and this time filed an application in the executing court alleging the same grounds which were raised by him in the suit mentioned above. The said suit was abandoned by him and therefore dismissed. The executing court called for objections from the decree holder in respect of the application of the petitioner, and after hearing the parties dismissed his application. Hence, this revision.
3. Heard learned counsel for the parties on the admission of this revision. The record was also examined.
4. Mr. Qayoom urged that the executing court was obliged to make an inquiry into the claim of the petitioner objector as provided under O. 21, Rr. 97 to 101, C.P.C and having failed to exercise its jurisdiction in accordance with law.
5. Mr. Trisal appearing for the respondent/decree holder argued that O. 21, Rr. 97 to 101 have no application to the facts of the case in hand. According to him, it is O. 21, R. 35 which is applicable to the same.
6. I have given my due consideration to the argument advanced at the bar.
7. I don't agree with Mr. Qayoom that O. 21, Rr. 97 to 101 have any application to the case. Rule 97 pre-supposes the making of a complaint by the decree holder. Here it is not the decree holder but the objector who has made the complaint. Without an application/complaint by the decree holder the executing court is not bound to make an inquiry, as envisaged under R. 98 supra. It had only to see whether prima facie there was any just cause for resistance and objection and need not have investigated the question of title thoroughly. O. 21, R. 97 no doubt contemplates the case of actual resistance or obstruction to the execution of a decree or order for possession by a person not a party to the decree or order. But, if such person had not in fact been dispossessed, his application need not be inquired into. Rule 99 supra manifestly lays down that 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, he may make an application to the court complaining of such dis-possession. The third party can make such a complaint only after his dispossession. In that case, the court has to make an inquiry into the matter, and if it finds any truth in his claim, it has to restore his possession. That inquiry at the behest of an objector pre-supposes his dispossession. So far as the decree holder is concerned, he is not bound to resort to the remedy as available under R. 97. The said rule is only permissive.
Moreover, a person bound by the decree under R. 97 includes a person claiming through the judgment debtor. It will also include the case of a person who claims to be in possession in his own right, but whose claim is unacceptable on the face of it, and cannot be said to be made in good faith. In such case also, there is no need to resort to R. 97 and a fresh application for warrant of possession can be made under the said rule. Where, however, the obstruction whether by the judgment debtor or persons claiming under him or by a stranger appears to need investigation and cannot be decided without it, the decree holder must proceed under R. 97.
8. The learned executing court has come to the conclusion, and rightly so, that the petitioner/objector is no other person than the brother of the judgment debtors and he was the person who had testified their service in the main suit and had full knowledge of the same for the last fifteen years. This has been noticed by the learned trial court while disposing of the application of the petitioner for temporary injunction. Not only that, even in this revision the power of attorney filed by Mr. Qayoom on behalf of the petitioner bears the signatures of his brother (judgment debtor) and not of himself. It is signed by Mohd. Ismail respondent No. 1 who is one of the judgment debtors. This was pointed out by Mr. Trisal during the course of his arguments and Mr. Qayoom could not refuse it when confronted to the same in the open court. This goes to show that the petitioner has appeared as an objector not on his own but at the behest of his brother judgment debtor. That being so, he shall be deemed to include the case of a person who claims to be in possession in his own right, but that claim being not in good faith cannot be accepted. The facts and circumstances of the case speak out for themselves that the petitioner is not a bona fide objector but a protege of the judgment debtors. In this view of the matter, the executing court was not called upon to make any further inquiry into the false claim of the petitioner. As a matter of fact, the executing court has no jurisdiction to start an inquiry suo motu or at the instance of a third party other than the decree holder or auction purchaser under O. 21, R. 97. As already stated, this rule is merely permissive and not mandatory so that the decree holder need not resort to it against his will and may even apply for a fresh warrant under O. 21 R. 35. The executing court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an un-willing decree holder is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. If the executing court were to stay its hands till investigation into a third party's claim is not finally decided, then it would result in depriving the decree holder of his possession by filing repeated spurious claims.
9. In these circumstances of the case, no inteference by this court is called for. The impugned order does not suffer from any jurisdictional error nor has it caused any injustice to the petitioner. He has failed to make out a case for the admission of this revision to hearing, which is hereby dismissed in limine, with costs assessed at Rs. 500/-. The learned executing court shall see to it that the decree in question is implemented in letter and spirit and as early as possible. The interim direction issued by this Court on 8-5-1987 shall stand vacated.
10. The result is that the revision fails. The revision file shall be consigned to records. The record shall be sent back to the executing court (Munsiff Pulwama) for proceeding further with the case in accordance with the law, as directed above. The parties through their counsel are directed to appear in the said court on 9-9-1988.
Revision dismissed.
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