The executing court has the discretion to adjudicate objections under Order 21 Rule 97, Civil Procedure Code, and requires prima facie material to justify legal possession over the decreetal premises.

Ajay Rastogi, J.-Instant revision petition has been filed at the instance of objector (applicant) assailing order dated 11.01.2002 whereby Executing Court (ADJ No. 3, Jaipur City) over-ruled objections raised in his application (Civil Misc. Case No. 24/01) U/O 21, Rule 97, Civil Procedure Code.

2. Facts, in brief , are that decree holder (Respondent No. 1) instituted Civil Suit No. 75/98 against tenant Respondent No. 2 (Judgment -debtors) seeking his eviction on the ground of personal necessity, material alterations and sub-letting. Plea of sub-letting was not pressed against tenant (Subhash Pareek). The tenant (Respondent No. 2) did not appear despite service and accordingly ex parte decree was passed by competent Court of jurisdiction vide Judgment dated 17.08.2000.

3. In the plaint, decree holder pleaded inter-alia that suit premises was let out to Subhash Pareek by an oral agreement on 012.1988 on a rent of Rs. 1,150/-per month and after August, 1997, the tenant Respondent No. 2 discontinued to pay monthly rent. Since, the tenant avoided service of notice and summons could not have been served upon him, notices were served by substituted service after publication in daily news paper “Dainik Navjyoti” on 11.1998 as ordered by the trial Court and despite publication (Supra), the tenant failed to appear; as such ex parte proceedings were ordered and finally ex parte decree was passed on 17.08.2000.

4. Decree holder (Respondent No. 1) filed application for execution of decree (Supra) and taking possession of suit premises. In course of execution proceedings, petitioner moved an application under Order 21, Rule 97, Civil Procedure Code raising objection to the execution, inter-alia averring that he is in possession of decreetal premises as an tenant since May, 1998 on monthly rent of Rs. 2,500/-, where he has been running scooter repairing shop and is occupying the suit premises whereas Subhash Pareek against whom decree has been obtained, was never in possession after May, 1998 as he was not his tenant. It was further averred that had Subhash Pareek been occupying as tenant in suit premises, notices in ordinary course could have been served upon him but since petitioner was in possession over it as tenant, notice of Subhash Pareek could not have been served. In support of averments made in the application, petitioner produced copies of electricity bills, letter head, Bank pass-book and other documents in order to show his possession over the suit premises as tenant since May, 1998 and prayed that without impleading him as party and affording opportunity of hearing, the decree obtained by the decree holder is liable to be set aside.

5. Application of objector petitioner was opposed by the decree holder and inter-alia contended that mere possession of the suit property will not be sufficient unless it is shown that he was ever recognised as tenant and paid any rent to the decree holder or in what capacity he is in possession over premises under impugned decree; and it was further pleaded that Subhash Pareek was his tenant and to just defeat the decree passed in his favour, petitioner has been put in possession of decreetal premises, who is not having any legal right, title or interest and if such application is allowed it may certainly frustrate right of landlord (decree

holder) who never let out decreetal premises to petitioner objector nor he had ever paid any rent to him.

6. After considering material on record, the learned Executing Court recorded a finding that indisputably petitioner is in possession of suit property but since he has failed to prima facie show as to how he has been in possession of suit premises, inasmuch as mere possession as alleged will not hold him entitled to seek opportunity of leading evidence as provided under Order 21 Rule 97(2) read with Rule 101, Civil Procedure Code and accordingly rejected his application vide letter impugned. Hence, this revision petition.

7. Counsel for the objector