1979 Supreme(MP) 217

IN THE HIGH COURT OF MADHYA PRADESH
J.P. Bajpai, J.
Ramchandra Rao - Appellant
Vs.
Virendrakumar - Respondent
C. Revn. No. 838 of 1979 (G)
Decided On : 12-12-1979

Headnote:Civil Procedure Code, 1908 – O. 21, R. 97 – scope of – objectors raising objections regarding taking possession of suit premises – must be investigated in the execution proceedings – however they might be false and frivolous – separate suit barred.

        Short Note

       1. By this revision the decree – holder applicant seeks inference with the order made by the executing Court directing that necessary enquiry will have to be held to decide whether the decree has been fully satisfied and, as such, no further execution proceedings are tenable. The direction had been given by the executing Court in pursuance of the order already made by it on 15 – 5 – 1978 on the objection raised about the tenability of further proceedings for execution of the decree on the ground that since the decree for possession had already been satisfied by execution of the warrant, there was no scope for issuing a fresh one. In the mean while, at the instance of the decree – holder, the executing Court, despite the aforesaid order made by it on 15 – 5 – 1978 had subsequently issued a warrant of possession. In the warrant of possession it was mentioned that even if certain other persons i. e. non – applicants Virendra Kumar and Nerendra Kumar sons of Gulzarilal are found in actual possession of the premises, the warrant be executed against them also. It would be significant to mention that the decree for eviction had been passed against Sonelal alone. Virendra Kumar and Narendra Kumar, the non – applicants are not the judgment debtors. It is also apparent from the perusal of the record that the names of these two persons were mentioned in the warrant at the request of the decree – holder who had applied to the Court alleging that these two persons are actually on the spot and that they may create trouble in execution of the warrant, by putting resistence. It is also apparent that the addition of the names of these two strangers in the warrant of possession was made without notice or hearing. When these two persons came to know about such an addition, they filed a reply to the application moved by the decree – holder and stated that they are in possession of the premises independent of judgment debtor Sonelal in their own rights. This basis for right, as alleged, was that the decree – holder had already entered into an agreement with them for selling the premises in question for a sum of Rs.15,000/ – and had placed them in possession on receipt of the amount. It was also contended that though an agreement was written and executed, the same was not traceable. However one copy of this agreement retained by the decree – bolder might be with him. It was also contended that they were not bound by the decree which had been passed against judgment debtor Sonelal, as they were in occupation of the premises under their independent right flowing from the alleged agreement of sale and the subsequent delivery of possession in pursuance of the same.

       2. Held : It might be true that the plea raised by the non – applicants about the alleged agreement of sale which according to them had been entered into in 1956, might be a false and frivolous once and that such a plea might have been raised simply with a view to delay and defeat the execution of the decree. But it is also equally true that once such an objection has been raised, the same will have to be enquired because according to the amended Code of Civil Procedure, the scope of filing a separate suit has also been curtailed. It is, therefore, directed that while holding the enquiry in pursuance of the earlier order made on 15 – 5 – 1978, the executing Court shall also give an opportunity to the non – applicants to adduce whatever evidence they want to put forth in support of their contention about the story of the alleged agreement. It would not be proper for this Court at this stage in revision to express any opinion on the merits of the contention. The executing Court would naturally make orders for compensation if the story put forth by the objectors is ultimately found to be false. The executing Court shall also take into consideration that by raising such objections the execution of the decree may not be unduly delayed and that there is no abuse of the process of the Court. Revision dismissed.