Only the decree holder or the purchaser of the property sold in execution of a decree can make an application for possession of immovable property under Order 21, Rules 97, 98, and 99 of the Civil Procedure Code.

Prem Chand Pandit, J.

1. Shrimati Kamla Devi and others, petitioners, made an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, against Shri Vishnu Flour, Dal and Oil Mills, Ludhiana, respondent No. 2 and their proprietor Shri Kainthli Ram, respondent No. 3 for their eviction from the shop in dispute situated in Ludhiana. In May 1967 this application was granted and an order of eviction was passed against both the respondents. During the course of the execution proceedings regarding this eviction order, Surinder Kumar, respondent No. 1, made an application under Order 21, Rules 97, 89 and 99 Civil Procedure Code, alleging that the ejectment order could not be executed against him. He claimed himself to be in possession of the suit property as a co-sharer of the same. It was further pleaded by him that a suit for partition between the parties was pending before a Subordinate Judge at Ludhiana. As he was in possession of the shop in question in his own right, he was not liable to eviction in execution of the order obtained by the petitioners against respondents Nos. 2 and 3.

2. This application was contested by the decree-holders, mainly on the ground that an application of that kind was not maintainable, because such on application could be made only by a decree holder or the purchaser of an immovable property sold in execution of a decree. This contention of the decree holder was repelled by the court below by observing that the warrant of possession of the shop in dispute was issued against the judgment-debtors and respondent No. 1 alleging himself to be interested in the matter and being in possession of the shop, made the said application and that would certainly amount to obstructing the delivery of possession and under Order 21, Rule 99, Civil Procedure Code, the court could dispossess him only after hearing him. The said provision, according to the court below, was not meant for the decree-holders only. The court further held that it would be proper if the execution proceedings were deferred till the parties got a verdict in the partition suit regarding the joint nature or otherwise of the property in dispute. As a result, this application of respondent No. 1 was accepted and the execution application filed by the petitioners was dismissed as unsatisfied. The court also remarked that if the suit was decided in favour of the decree holders and the property fell to their share they would be at liberty to file a fresh execution application. Against this order, the present revision petition has been filed by the decree-holders.

3. It is common ground that a partition suit is pending between the parties in respect of various properties including the one in dispute. It is further admitted that at present respondent No. 1 is in possession of the shop in question. The main question for decision in this case is whether under these circumstances, respondent No. 1 could make an application under Order 21, Rules 97, 98 and 99, Civil Procedure Code, when in execution of the ejectment decree obtained by the petitioners against respondents Nos. 2 and 3, they got a warrant of possession against the judgment-debtors regarding property in dispute.

4. Rules 97, 98 and 99 of Order 21, Civil Procedure Code, are in these terms :-

"97(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, it shall direct that the appl