The provisions of Order 21 Rule 97 CPC, conferring the right of resistance or obstruction to possession, are not applicable to someone not in possession.

Ashwani Kumar Mishra, J.

1. This petition has been filed under Article 227 of the Constitution of India, for setting aside the order dated 20th March, 2015, passed in Execution Case No. 1 of 2013, pending before the court of Civil Judge (Senior Division), Saharanpur. By the said order, which is contained in Annexure 13 to the petition, decree holder has been directed to take steps to issue writ for Amin to deliver possession pursuant to decree of possession to the decree holder. This order has been passed in Execution Case No.1 of 2013, pursuant to a decree passed by the competent court. It is not in dispute that such decree has attained finality.

2. The petitioner in the present petition alleges that she is landlord of the property in question, and has filed an application, under Order 21 Rules 97, 99 & 103 read with Section 151 CPC, with the prayer that she be permitted to resist the decree, and an order be passed for delivering the possession of the property to the applicant. From the perusal of prayer of the application itself, it is apparent that the petitioner is not in possession, and that she is seeking possession over the property in question.

3. Order 21 Rule 97 CPC confers right of resistance or obstruction to possession, at the instance of a third party, where possession is to be granted to the decree holder. This right, therefore, is available to someone, who is in possession, and resists the delivery of possession to the decree holder. Admittedly the petitioner applicant is not in possession, and therefore, the provisions of Order 21 Rule 97 CPC would not be attracted. So far as Order 21 Rule 99 CPC is concerned, such a provision is available, if any person other than the judgment debtor is dispossessed from immovable property by the holder of a decree for possession of such property pursuant to decree, then such person can make an application to the court concerned complaining of such dispossession. Admittedly as the petitioner is not in possession, the question of her dispossession, pursuant to the decree, does not arise, and therefore, no grievance in respect of dispossession, pursuant to a decree would be available to the petitioner, either.

4. Learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court in Tanzeem-E-Sufia Vs. Bibi Haliman and others [ (2002) 7 SCC 50 ]. Para 14 of the said judgment is reproduced: -

"14. We find that in the case in hand the appellant is claiming its independent right over the property and asserts its possession thereof. Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court therefore, erred in refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in title suit No. 8 of 1983 is not binding on it. The provision contained under Order 21 Rule 101 CPC seems to have escaped notice of the High Court while passing the order. We would also like to observe that the reasoning given by the execution Court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would only lie by moving an application under Order 21 Rule 99 CPC is also erroneous as in case of Brahamdeo Chaudhary' (1998) 4 SCC 543 , it has been held that it should not be insisted that possession be delivered first and the objector may later on move the Court under Order 21 Rule 99 CPC."

5. Learned counsel for the petitioner, on the strength of aforesaid decision, contends that in a case, where provisions of Order 21 Rule 97 or 99 have been invoked, the procedure contemplated under Order 21 Rule 101 CPC will be attracted, which has not been complied with in this case. This argument is wholly misconceived. Since the claim of petitioner is not covered ei