A third party claiming possession of property subject to a possession decree has the right to resist delivery of possession by filing an objection under Order 21, Rule 97, and such objection must be determined by the Executing Court.

ORDER :

R.C. Lahoti and Ashok Bhan, JJ. - Mahendra Nath, respondent No.1, filed a suit for specific performance of an agreement of sale dated 17.9.1974, impleading respondent Nos.2 to 5 as defendants. The suit, registered as Original Suit No.72 of 1975 in the Court of the Civil Judge, Mainpur, was decreed on 4.3.1978. The decree is for specific performance of the agreement dated 17.9.1974 and for possession over the land in suit. This decree has achieved a finality.

2. The decree was put to execution. When the warrant for delivery of possession was sought to be executed, the appellant offered resistance claiming to be in possession of the suit property and not bound by the decree. He preferred a petition purporting to be under Rules 35 and 97 of the Order 21 of the Code of Civil Procedure before the Executing Court. The objection was dismissed as not maintainable. The appellant preferred a revision to the High Court which too has been dismissed following a Full Bench decision of the High Court of Madhya Pradesh in Smt.Usha Jain & Ors. v. Manmohan Bajaj, AIR 1980 MP 146 : 1980 MPLJ 429 (FB).

3. The view taken by the High Court of Madhya Pradesh in the above-noted decision is that during the execution of decree for possession, no inquiry into the title or the possession of a third party is contemplated, at any rate at his instance, either under Rules 35 and 36 or Rules 95 and 96 of Order 21 of the Code of Civil Procedure. It is either for the decree-holder to make an application under Rule 97, which provision is only permissible and not mandatory, or for the third party in possession to have recourse to Order 21, Rule 100 of the Code of Civil Procedure which remedy shall be available only after he has been dispossessed and not before.

4. The Full Bench decision of the Madhya Pradesh High Court in Smt.Usha Jain's case (supra) has been over-ruled by this Court in Shreenath & Anr. v. Rajesh & Ors., (1998) 4 SCC 543 It has been held that a third person claiming to be in possession of the property forming subject matter of decree in his own right can resist delivery of possession even by filing an objection under Order 21, Rule 97 of Code of Civil Procedure in the Executing Court itself and if that is done, the objection shall have to be determined by the Executing Court itself. The provisions of Rule 100 (of the old C.P.C., the equivalent provision whereof is Rule 99 in the new C.P.C.) will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession. In view of the decision of this Court in the case of Shreenath, (1998) 4 SCC 543 (supra), the impugned view of the High Court based on the Full Bench decision of the High Court of Madhya Pradesh in the case of Usha Jain & Ors, AIR 1980 MP 146 : 1980 MPLJ 429 (FB) cannot be sustained.

5. However, during the course of hearing, it was brought to our notice that the appellant herein has already filed a suit for permanent injunction, registered as Suit No.286/1990, in the Court of Civil Judge, Shikohabad and therein a temporary injunction has been obtained by the plaintiff protecting his possession. However, we are of the opinion that in view of the decision of this Court in the case of Shreenath & Anr., (1998) 4 SCC 543(supra) as also in Anwarbi v. Pramod D.A. Joshi, (2000) 10 SCC 405 the objections should have been heard and decided by the Executing Court itself.

6. The appeal is allowed. The impugned decisions of the Executing Court and the High Court are set aside. The objection filed by the objector (appellant before us) shall now be heard and decided in accordance with Rule 97 read with Rule 101 Order 21 of the Code of Civil Procedure. A separate suit is not maintainable.

7. The objections filed by the appellant are directed to be adjudicated upon by the Executing Court expeditiously and consistently with the directions made hereinabove.

8. As no separate suit is maintainable, the appellant is allowed the liberty of seeking withdra