Point of Law: Where a third person, who is not a judgment-debtor or is not otherwise bound by the decree, is in possession of the property, of which possession is to be delivered to a holder of the decree for possession or to an auction-purchaser, the Executing Court has no jurisdiction to remove him from possession and deliver possession to the decree-holder or auction purchaser, unless and until: (a) it holds that such a person is bound by the decree, or (b) it makes an order under Order 21, Rule 98, C.P.C., which presupposes the making of a complaint by the decree-holder under Order 21, Rule 97, of the Code.

JUDGMENT :

B.N. Karia, J.

1. Admit. Ms. Sangeeta N. Pahwa, learned Counsel for respondents waives service of notice of admission on behalf of respondents.

2. The present appellant, who was the original objector in Regular Civil Execution (Darkhast) Application No. 21 of 1993, who happens to be son of the judgment debtor-Baloch Ilamkha Umrkha, by way of present appeal under Sec. 100 of the Civil Procedure Code has challenged the judgment and decree dated 7th March, 2019 passed by the learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No. 8 of 2019 dismissing the Regular Civil Appeal preferred by the present appellant and confirming the order dated 24th January, 2019 passed by the learned Additional Civil Judge, Palitana in Regular Civil Execution (Darkhast) Application No. 21 of 1993.

3. This appeal was placed at admission stage, however, on a joint request being made by learned Counsels appearing for respective parties to decide the appeal finally, this appeal is taken up for final hearing. Necessary documents are produced by the appellant to determine the present appeal.

4. Short facts of the present case which emerges from the record are that:

4.1. That, Special Civil Suit No. 115 of 1983 was filed by the plaintiff for declaration and permanent injunction along with the relief of getting vacant possession of the suit property from the defendant (father of the appellant) averring that the suit property (admeasuring Acre 3-Guntha 30 of Survey No. 291) was purchased by the plaintiff by a registered sale-deed dated 22nd March, 1972. That, as the plaintiff was serving out of station in Forest Department, defendant No. 1, being trusted person, was looking after and taking care of the suit property as a chowkidar on a remuneration of Rs. 100/- per month. That, in the year of 1981, the intention of the defendant was found changed, and thus, his service was terminated. The defendant No. 2 was the son of Ilamkha. That, plaintiff was the real owner having the possession of the suit property and was paying revenue dues, however, without obtaining consent of the plaintiff or without informing the plaintiff, the defendant tried to transfer the suit property in his name in the revenue. record. That, Regular Civil Suit No. 83 of 1981 was filed by the plaintiff before the Court of learned Civil Judge (J.D.) at Palitana. That, the suit was contested by the defendant by raising dispute of jurisdiction, and thereafter, the said suit was withdrawn by the plaintiff with a liberty to file a fresh suit. As the plaintiff was in possession of the suit land and defendant has no right, title or interest in the suit land. It was requested in the suit to pass declaration that plaintiff is the sole owner having possession of the suit property, and restraining the defendant from disturbing the possession and taking crops from the suit property by granting permanent injunction and hand over the vacant and peaceful possession to the plaintiff.

4.2. That, defendant No. 1 was joined in the suit in individual capacity and in the capacity of representative of his family consisting of his sons as well as Karta of the family. The suit was resisted by the defendant by filing written statement denying the contents as raised by the plaintiff.

4.3. The learned trial Judge, after recording the evidence, was pleased to allow the suit on 23rd April, 1991 in favour of the plaintiff directing the defendant to hand over the peaceful and vacant possession of the suit property within 60 days. The defendant challenged the aforesaid judgment and decree passed in Special Civil Suit No. 115 of 1983 by filing First Appeal No. 709 of 1991 before this Court. Meanwhile, the defendant No. 2-Baloch Kalubha Ilamkha, brother of the defendant No. 1 was passed away. This Court, confirmed the judgment and decree dated 23rd April, 1991 passed in Special Civil Suit No. 115 of 1983 passed by the 2nd Joint Civil Judge (S.D.), Bhavnagar and dismissed the First Appeal No. 709 of 199