A person in possession of a property who establishes that he is not bound by the decree sought to be executed is entitled to protect his right to possession through the court process. The executing court is bound to consider the application of such a person before dispossessing him.

A.S.NEHRA, J.

1. This revision petition under S. 115 of the Code of Civil Procedure has been referred by a learned single Judge because, in his opinion, the following question deserves to be decided by a Division Bench :-

"Whether the executing Court is bound to consider the application of a person, in possession, where he was not a party to the decree, before he is dispossessed ?"

2. Facts material for this revision are that Inder Singh petitioner obtained a decree on 7/09/1982, for specific performance of an agreement of sale dated 25/06/1979, against Anup Singh. In terms of this decree, sale deed Exhibit DH 1 was later executed on 3/02/1983. The sale consideration of Rs. 59,500.00 was concededly received by Piara Singh, an attorney of judgement-debtor Anup Singh. As a result of the execution of the sale deed Exhibit DH 1, the petitioner decree-holder launched the present execution proceedings to secure the physical possession of the land in question. The delivery of possession of this land was obstructed and objected to by Piara Singh, who, as indicated earlier, had actually received the sale consideration, on the ground that the said land was in his possession along with his two other brothers as mortgagees. He, as a matter of fact, filed an objection petition to that effect under Order 21, Rule 35 read with S. 151, Civil Procedure Code. These objections of his have been upheld by the executing court vide impugned order dated 16/02/1985. Only symbolic possession of the land in question is ordered to be delivered to the petitioner in terms of Rule 36 of Order 21 as the same was found to be in occupation of persons, who were not bound by the decree. The decree-holder impugns this order.

3. The sole contention raised by the learned counsel for the petitioner is that in view of an earlier Division Bench decision of this Court in Harijan Wood Workers V/s. Maya Wati, 1984 Current Law Journal 212 :

(AIR 1985 P&H 181), objector Piara Singh had no locus standi to maintain the objection petition without surrendering the possession of the land in question as envisaged by Rule 99 of Order 21, Civil Procedure Code. What has been ruled in this judgement is "that any person other than the judgement debtor cannot file an objection petition under Rule 97 on the ground that he is not Liable to ejectment in execution of decree obtained by the decree-holder against the judgement-debtor."

4. The learned counsel for the respondents has argued that it is true that Rule 97 ex facie entitles a decree-holder or a purchaser of the property sold in execution of a decree to make an application to the Court complaining about the resistance or obstruction being caused to him in securing the possession of the suit land but that does not mean that a person, who is not bound by the decree sought to be executed, is not entitled to protect his right and interest without first surrendering the possession of that immovable property.

5. The learned counsel for the respondents has further submitted in support of his argument that the provisions of Order 21 Rule 35 were not brought to the notice of the Division Bench of this Court in Harijan Wood Workers V/s. Maya Wati (supra) and, therefore, Division Bench decision is not relevant. Order 21 Rule 35 and 97 read as under :-

"35. Decree for immovable property :-

(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

97. Resistance or obstruction to possession of immovable property :-

(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 complaini