An application under Order 21 Rule 97 of the Code of Civil Procedure is not maintainable in the absence of any obstruction or resistance to the delivery of possession of the decreetal land by the third party. The pendency of a suit challenging the decree bars the maintainability of an application under Order 21 Rule 97 of the Code of Civil Procedure.

P.K. Deb, J.

This revision petition has been preferred by the above named petitioner against the order dated 1.7.1998 passed by the 2nd Munsif, Buxar, in Misc. case no.5 of 1998 arising out of the execution case no. 16 of 1988 whereby and whereunder the application filed by the petitioner under Order 21 Rule 97 of the Code of Civil Procedure has been rejected as not maintainable.

2. The opposite parties had filed execution case no. 16 of 1988 to execute the decree passed in Title Suit No. 132 of 1982. The petitioner filed a petition under Order 21 Rule 97 of the Code of Civil Procedure in the aforesaid execution case contending, inter alia, that the decree is not binding on him and that by execution of the decree his possession cannot be interfered. The said application was registered as Misc. Case No. 5 of 1998.

3. There is long history behind the above application filed by the petitioner. In the year 1932 there was a partition suit being Title Suit No. 30 of 1932 in the court of Subordinate Judge at Arrah. In the partition suit Bibi Sogra got 3/8th share in plot no.1115 in Khata no. 168/121 measuring an area of 2460 sq.ft. Another co-sharer of the suit property, namely, Md. Akhtar at the time of partition left the country and settled in Pakistan but afterwards returned in the year 1982 and sold his share having an area of 187 sq.ft. in plot no. 1115 to one late Kedar Lal on 13.11.1982 by registered sale deed. But he sold the property to late Kedar Lal which was practically in the alloted share of Bibi Sogra.

4. Bibi Sogra died leaving behind her son Md. Atique Ahmad and daughter Sabiha Khatoon as her legal heirs and according to the petitioner, those two heirs came over in possession of the allotted share of Bibi Sogra. The petitioner purchased 12 dhoors 16 dhurkies of land including a house in plot no. 1115 under the said khata from the son and daughter of late Bibi Sogra by two sale deeds dated 24.10.1996 and has been delivered of possession. According to the petitioner, although the heirs of Bibi Sogra got the lands in plot no. 1115 as per the declaration in Title Suit no. 30 of 1932 but without making them parties Title Suit no.132 of 1982 was filed by the decree-holder-opposite parties. That the said decree was not binding on the heirs of Bibi Sogra vis-a-vis the petitioner who is the purchaser.

5. According to the petitioner, his vendors were in possession of the suit property and after purchase the petitioner came in possession and as such, without an enquiry being made and adjudication being made regarding the right, title and interest of the petitioner and his vendors the said execution case cannot proceed to take over possession over the decreetal land in Title Suit no. 132/82. With these averments the application was filed under Order 21 Rule 97 of the Code of Civil Procedure. On this application the Misc. case was registered and show cause being issued the opposite party-decree holder filed objection. According to the opposite party, the judgment-debtor in Title Suit no. 132 of 1982 fought the suit tooth and nail upto the Hon'ble the Supreme Court and decree was confirmed in favour of the decree-holder and as such in the execution proceeding delivery of possession was issued which was returned unexecuted by then Nazir. According to the decree-holder, judgment-debtor had set up the petitioner to put barrier in execution of the decree.

6. It was further mentioned that Md. Atique Ahmad and Sabiha Khatoon the heirs of Bibi Sogra had already filed Title Suit no. 220 of 1996 challenging the decree passed in Title Suit no. 132 of 1982 and a prayer for temporary injunction was made in that suit regarding restraint in execution of the decree but the said prayer of injunction, after hearing the parties, had been rejected by the Subordinate Judge, Buxar, and the appeal was also dismissed by this High Court and that injunction matter was fought up to the Supreme Court but the heirs of Bibi Sogra that is the plaintiffs of T