A person not in possession cannot maintain an action under Order XXI Rule 97 of the Civil Procedure Code.

JUDGMENT

S. V. Gangapurwala, J. - The matter has been placed before us to answer the issues referred by the learned Single Judge under order dated 15.12.2016 in Second Appeal No.550/2016.

ISSUES

"i. Whether a person not a party to ''lis'' or not claiming through parties to the ''lis'' (third party), not in possession and/or not claiming to be in possession can maintain an action pursuant to Order XXI, Rule 97 of the Civil Procedure Code?

ii. When there is already a substantive ''lis'' initiated by the person as aforesaid (third party) and pending for adjudication of rights in respect of immovable property, whether a purported objection invoking Order XXI, Rule 97 of the Code of Civil Procedure, 1908 in execution of decree, by the same person can be entertained for vindication of rights to such immovable property giving treatment to it according to Rules 97 to 103?"

2. The learned Single Judge of this Court in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh, (2008) 1 MhLJ 340 observed that it is not only the person in possession or a person dispossessed are entitled to file application to obstruct the execution of the decree for possession pursuant to the provision of Order XXI, Rule 97 of Code of Civil Procedure. But, a third party can resist and/or obstruct the execution of decree and seek adjudication of his claim and rights by making an application to avoid multiplicity of the proceedings. The learned Single Judge dealing with the Second Appeal No.550/2016 referred to the aforesaid judgment and observed that the observation as are appearing in paragraph 13 of the judgment of the learned Single Judge of this Court in a case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) do not appear to be congruous and compatible with the context and intent underlying the supreme court''s judgments, delivered on the substratum of possession being claimed by the persons putting up obstruction to execution of decree and further observed that text of Order XXI, Rule 97 of the Civil Procedure Code has been read down by the courts by letting an opportunity to the person in possession of the decreed property, not party to litigation and not claiming through parties to litigation, to have adjudication of rights. He further observed that it does not appear to be a case wherein such an opportunity and opening has been made available to a person who does not claim to be in possession of the decreed property and thereby opined that the matter can be more advantageously heard by a larger bench for a decision to resolve the situation. Pursuant thereto Hon''ble the Acting Chief Justice had directed to place the matter before us to answer the issue raised under order dated 15.12.2016 in Second Appeal No.550/2016.

3. Mr. Patil (Beedkar), learned counsel contends that the third party who is resisting and / or objecting to the execution of decree irrespective of possession, can also seek adjudication of his claim and rights by making an application to avoid multiplicity of proceeding and need not be in actual physical possession of the property and the execution. The learned counsel relies on the judgment of the learned Single Judge of this Court in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra).

4. The learned counsel submits that Order XXI, Rule 97 of the Code of Civil Procedure does not restrict the objection to be raised by the person in actual physical possession, but even a person if he has right to claim possession would be entitled to maintain action. The learned counsel relies on the judgment of the Apex Court in a case of Ashan Devi and Anr. Vs. Phulwasi Devi and Others, (2004) AIR SC 511 and submits that provision of Order XXI, Rule 97 and 99 of Code of Civil Procedure are to be widely and liberally construed to enable the Executing Court to adjudicate inter se claims of the decree holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by dra