An enquiry into the title and possession of a third party is not permissible under Order XXI, Rule 35 of the CPC before delivery of possession is effected. Such an enquiry is only permissible under Order XXI, Rule 97 of the CPC, which can be invoked by the decree holder in case of resistance or obstruction to delivery of possession by a third party.

S.B.Sinha, J.

1. This civil revision is directed against an order dated 15.4.1988 passed by Shree S. Kumar, Munsif, 2nd Court, Bliagalpur in Miscellaneous Case No. 7 of 1988 arising out of Execution Case No. 14 of 1985.

2. Shorn of all unnecessary details the facts of the case are as follows:

The decree holder opposite party had obtained a decree against the second party-opposite party in title Suit. Nos. 41/43 of 1968/1975. By reason of a judgment and decree passed in the aforementioned suit the Additional Munsif, Bhagalpur, directed the defendant of the said suit to vacate the said premises within one month from the date of the said decree.

The said decree was, thereafter, put in execution by the decree holder opposite-party No. 1 which was registered as execution Case No. 14 of 1985.

3 In the said execution case the petitioner filed an application purported to be under Order XXI, Rule 35 of the Code of Civil Procedure alleging inter alia therein that he was the owner absolute of the gali in question which was under the tenancy of Jagernath Prasad Sah, the judgment-debtor in this case. According to the petitioner, the said opposite party third party surrendered the entire lease hold premises to the petitioner who came in exclusive possession thereof. It was further alleged that the suit premises was a part of the said tenancy. The petitioner also contended that as he was to be dispossessed from the suit premises which was in his exclusive possession, he was entitled to object to the execution of the decree and pray for holding an inquiry as to whether he was in possession in respect of the said premises or not.

4. By reason of the impugned order, the learned Court below had dismissed the said petition in limine. It appears that the petitioner had already filed an objection purported to be under Sec. 151 read with Sec. 47 of the Code of Civil Procedure which was rejected by the Executing Court. The petitioner, thereafter, filed a revision application against the said order which was registered as Civil Revision Application No. 197 of 1988. The aforementioned civil revision application was also dismissed by this Court by an order dated 28.2.1988.

5. Mr. Kumar Sinha, the learned Counsel appearing on behalf of the petitioner, firstly submitted that the learned court below has misdirected itself in relying upon the order of this Court dated 28.2.1988 passed in the civil revision application No. 197 of 1988 inasmuch as this Court categorically observed therein that no observation or finding given in the order impugned is the said civil revision application on the merit of the case shall prejudice the petitioner in any future litigation nor he would be bound thereby. The learned Counsel, therefore, contended that it was not permissible for the learned Court below to dismiss the petitioners application on the basis of the aforementioned order dated 28.2.1968 passed is the said Civil Revision No. 197 of 1988. The submission made on behalf of the learned Counsel appears to be correct.

6. The learned Counsel further submitted that an enquiry in the nature as prayed for by the petitioner is contemplated under Order XXI, Rule 35 of the Code of Civil Procedure inasmuch as in terms thereof delivery of possession in respect of the property in question has to be obtained from person who was bound, by the decree. According to the learned Counsel, as the petitioner claims independent title in the property in question being not bound by the decree he could not nave been dispossessed by the executing court pursuant to or in furtherance of the decree passed in the aforementioned suit. In this connection the learned Counsel has strongly relied upon a decision in Ram Chandra Verma V/s. Manmal Singh and Anr. reported in AIR 1983 Sikkim, page 1.

7. Mr. S.S. Dwivedi, the learned Counsel appearing on behalf of the opposite party, on the other hand, submitted that no enquiry is contemplated under Order XXI, Rule 35 of the Code of Civil Procedure