Only the person in actual physical possession with independent rights over the property has the right to record resistance under Order XXI Rule 97 of the Code of Civil Procedure during the execution of a decree for possession of immovable property.

( 1 ) HEARD learned counsel for the parties.

( 2 ) THIS revision is directed against the order dated 5-4-2004, passed in Execution case No. 01 of 1998 by learned III Fast Track court/addl. District Judge, Haridwar.

( 3 ) BRIEF facts of the case are that a civil suit No. 92 of 1990 was instituted by plaintiff/decree holder, Banarasi Das, against the defendant/judgment-debtor, Jamshed Ali, which was decreed on 10-11-1997 for specific performance of contract dated 28-6-1988. It appears that in execution of said decree, the sale deed was got executed on 21-3-1998/8-5-1998 through the Court. Meanwhile objections were filed on 16-4-1998 by the judgment-debtor (respondent no. 2), which were rejected on 22-4-1998. It appears that against said order the defendant/judgment debtor preferred a revision no. 31 of 1998 and the same was also dismissed on 23-2-2001. Meanwhile, a suit No. 12 of 2001 appears to have been filed by smt. Sakila (revisionist), who is wife of Sri jamshed Ali, defendant/judgment-debtor against Sri Banarasi Das for injunction. From the perusal of the record, it is also clear that Smt. Sakila also filed objections in the execution case No. 01 of 1998 arising out of decree passed in civil suit No. 92 of 1990, claiming that her husband has transferred the property in respect of which decree was passed. The impugned order is passed in the execution case No. 01 of 1998 directing that writ of possession be Issued.

( 4 ) LEARNED counsel for the revisionist argued that without disposing of objections of the revisionist, the writ of possession could not have been directed to be issued. In this connection, my attention was drawn to the principle of law laid down by the Apex court in Shreenath V, Rajesh reported in AIR 1998 SC 1827, in which it has been held that a third party in possession of a property claiming independent right as a tenant, not party to a decree for possession of immovable property under execution, could resist such decree by seeking adjudication of his objections under Order XXI Rule 97 of the Code of Civil procedure, 1908. In said case law, it has been further held that the third party is not required to wait till dispossession. Order XXI, Rule 97 of the Code provides that where' the holder of a decree for possession of immovable property or purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the decree, he may make an application to the court complaining such resistance or objection.

( 5 ) IN the present case, it appears that writ of possession is yet to be issued in compliance of the impugned order. As such, the objections filed by the revisionist third party, who is wife of the judgment-debtor claiming property in suit through him on the basis of oral 'hiba' in her favour, cannot be entertained nor the trial Court is required to enter into the rights of such third party, at this stage. The third party under Order XXI rule 97 of the Code has a right to get recorded resistance on which the executing court is bound to determine the rights of parties. In the case of Shreenath, (AIR 1998 sc 1827) referred above, the tenant who was not a party resisted the possession claiming his independent rights and that was a suit for mortgage. On the other hand in the present case, the revisionist who is wife of the judgment-debtor claiming her right on the basis of oral Hiba has not pleaded in her objections that the delivery of possession was transferred by her husband to her. On the face of it, the alleged oral Hiba appears to be a sham transaction just to defeat the, decree and to deprive him from the fruits of the decree, The learned executing court was not bound to dispose of such objection unless resistance get recorded after warrant of possession is issued. If that is permitted, in that case unending number of persons can claim independent rights and delay the execution of a decree which is not the object of the law. It is only the person

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