1982 Supreme(MP) 756

IN THE HIGH COURT OF MADHYA PRADESH
M. D. Bhatt, J.
Mohd. Yusuf - Appellant
Vs.
Tarabai - Respondent
C. R. No. 823 of 1980 (I)
Decided On : 26-08-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 21, R. 97 and S. 11 – application under Order 21, R. 97 – dismissed as not pressed – constructive resjudicata not applicable – fresh execution not barred.

       (2) Civil Procedure Code, 1908 – O. 27, R. 100 and 97 – inquiry as to third party's claim – may be made only after such party is dispossessed.

        Short Note

       1. Decree holder, in execution of his decree for possession of the immovable property in question ;and for recovery of the decretal amount, had started execution proceedings. The objector Chhotekhan had come forward with an objection regarding his title to the property whose possession was sought for in the execution of the Decree. The decree holder had, therefore, filed an application on 30 – 6 – 66 under Order 21, rule 97 CPC. This application was replied to by the objector and the executing Court had proceeded for sometime to investigate into the objections by asking requisite evidence, but before the objection could be decided on merits the decree – holder got his application dated 30 – 6 – 66 under Order 21, rule 97 CPC, dismissed on 28 – 3 – 69 on the premise that he did not want to press the said application. At the time of such dismissal the objector bad expressed that he had no objection to the dismissal of the application under Order 21, rule 97 CPC, as being not pressed (See order sheet dated 28 – 3 – 69 of the executing Court) After the decree holder's application dated 30 – 6 – 66 under Order 21 rule 97 CPC had been dismissed, the decree holder, on 19 – 3 – 77, again started execution proceedings against the judgment debtor Mst. Tarabai for obtaining possession of the immovable property in question. The notice regarding the same had been published in the newspaper. The objector Chhotekhan filed the application on 28 – 3 – 77 in the executing Court that the decree – holder's execution proceedings for obtaining possession, were no longer maintainable, inasmuch as the decree holder's earlier application under Order 21, rule 97 CPC had been dismissed. The executing Court, vide its order, which is impugned before me, held that since the decree holder had got dismissed his application under Order 21, rule 97 CPC earlier, such dismissal operated as a bar against him for his fresh execution proceedings for obtaining the possession on the principle of constructive resjudicata. Accordingly, the decree holder was held not entitled to the execution of his decree so far as obtaining of possession was concerned. The decree holder being aggrieved with the said order, has now come up in revision.

       2. Held : Executing Court's Order dated 28 – 3 – 69 clearly shows that the decree holder, on his own request, had got dismissed his application dated 30 – 6 – 66 filed under Order 21, rule 97 CPC, without any investigation in as much as, he did not want to press his such application. Thus, it would be seen that the dismissal of the decree holder's application was not on any merits. No matter directly and substantially in issue in the decree any holder's application and objection thereto had at all, been investigated and finally decided by the executing Court. Decree holder's application had simply been dismissed, as not pressed, without an adjudication of any matters in issue. Therefore, there was no question of any bar to the maintenance of the decree holder's subsequent execution proceedings for delivery of possession, on the principle of resjudicata. Decree holder's application having been dismissed, as being not pressed, he could not be debarred from starting fresh execution proceedings subsequently in the matter of obtaining possession of the immovable property in question, inasmuch as, matters and points involved in the decree holder's any complaint under Order 21 rule 97 CPC regarding resistance or obstruct on the possession and regarding the objector's assertions In that regard had never been adjudicated upon and decided on merits, by the executing Court, and as such, there was no question of constructive res – judicata at all, as a bar to the decree holder's subsequent execution proceedings as he had started against the judgment debtor.

       3. The Full Bench decision of this Court, reported in 1980 JLJ 678 Usha Jain and others v. Manmohan Baijal and others, may well be adverted to for guidance for finding out as to when the objector gets entitled to investigation of his supposed right and possession. The Full Bench of this Court has clearly held that an inquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and not before; and only after he applies under Order 21 rule 100 CPC, complaining to the executing Court regarding his dispossession. Before this stage is reached, he has no locus standi for forcing the investigation in the matter of his alleged title and possession unless the decree holder himself makes an application under O. 21 rule 97 CPC. If the decree holder does not choose to apply under Order 21 rule 97 CPC, the person obstructing or resisting execution, cannot apply under this rule, to have his title and possession investigated. In the present case, the decree holder has not filed any fresh application under O. 21 rule 97 CPC. Decree holder's earlier application under Order 21 rule 97 CPC in this regard, is found to have been dismissed, not on merits, but, on the ground that it was not pressed. Thus, at present, when the decree holder has restarted the execution proceedings against the judgment debtor for obtaining possession of the immovable property in question, the objector Chhotekhan has no locus standi to file any objection, whatsoever, till he is actually dispossessed and till the stage as envisaged under Order 21 rule 100 CPC is reached. Thus, it would be seen that the impugned order of the executing Court is patently erroneous; and as such, deserves to be set aside, 1980 JLJ 678 (FB) followed. Revision allowed.