For maintaining a petition under Order 21 Rule 99 CPC, actual physical possession must be established, and the application should not be filed at a belated stage with the intent to defeat the judgment passed by the trial court.

JUDGMENT :

Sandeep Sharma, J.

Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 28.6.2019, passed by the learned Senior Civil Judge, Nalagarh, District Solan, H.P. in case No. 601/2019, titled Sukhdev Singh v. Amar Singh and Ors, whereby an application under Order 21 Rule 99 CPC, having been filed by the applicant/petitioner (hereinafter referred as the petitioner), praying therein to stay execution petition, came to be rejected.

2. Precisely, facts as emerge from the record are that petitioner, who was admittedly not a party to judgment dated 7.12.2017, passed by the learned Senior Civil Judge in CS No. 139/1 of 2003 titled Amar Singh and Ors v. Ram Lok, filed an application under Order 21 Rule 99 CPC, praying therein to stay the execution proceedings initiated by the respondent-plaintiff Amar Singh. Petitioner averred in the application referred herein above that some portion of suit land was purchased by him from person namely Shri Jeet Singh, S/o Shri Nikka Ram, who was also not a party to the Civil Suit referred herein above and he is in possession of the same for the last 40-50 years and as such, judgment and decree dated 7.12.2007, passed by the learned Senior Civil Judge in CS No. 139/1 of 2003, cannot be enforced against Jeet Singh as well as him being the subsequent purchasers, especially when their rights qua the certain portion of the suit land never came to be adjudicated in the aforesaid judgment passed by the Civil Court.

3. Having heard learned counsel for the petitioner and perused the record annexed with the petition, this Court finds that petitioner was never a party to the suit referred herein above and judgment and decree dated 7.12.2007, passed by the learned civil Court has been already upheld by this Court vide judgment dated 22.5.2017. Interestingly, person namely Sh. Jeet Singh, from whom, present petitioner allegedly purchased a certain portion of the suit land, was also not a party to the civil suit referred herein above. Impugned order as well as record clearly reveal that the petitioner in the application under Order 21 Rule 99 CPC failed to place on record cogent and convincing evidence, if any, with regard to the purchase of the suit land allegedly made by him from the person namely Jeet Singh. Similarly, no revenue record suggestive of the fact that name of Jeet Singh or of the petitioner ever came to be incorporated in the revenue record on account of alleged purchase of certain portion of the land by the person namely Jeet Singh or subsequently by the present petitioner, ever came to be placed on record, and as such, court below while dismissing the application rightly drawn a conclusion that since applicant is not reflected in possession of the suit land in any capacity in the revenue record, there is no question of his being dispossessed from that property.

4. Order 21 Rule 99 CPC and Order 21 Rule 100 CPC clearly provide that for maintaining a petition under Order 21 Rule 99 CPC, actual physical possession must be there in respect of third party, who can come up for re-delivery of possession as contemplated under Rules 99/100 of CPC on adjudication of his claims. As per Order 21 Rule 99 CPC, it is required to be established that any person other than judgment debtor is dispossessed of immovable property by the holder of a decree, but in the instant case, there is nothing on record to show actual physical dispossession of the applicant from the suit land so as to enable the court to adjudicate the claim of the applicant, which certainly can be done only if the application is maintainable. Since applicant miserably failed to establish the requisite ingredients of actual physical dispossession, court below rightly held that there is no scope of adjudicating his claim in terms of provisions contained under Order 21 Rule 99 CPC. Order 21 Rule 100 CPC provides for determination of dispute between the parties in order to direct that the applicant be p