1984 Supreme(MP) 485

G. L. Oza, Ag. C. J.
Hashmatbai v. Fateh Mohammad
C. R. No. 384 of 1984 (I); Decided on 17-8-1984.

Headnote:Civil P. C., 1908 -- O. 21, R. 97 -- application made by auction purchaser -- enquiry should be made.

        Facts necessary for disposal of this revision petition are that one Ahsan Ahmed had obtained a decree against opponents 2 to 6 and even before the decree was obtained, there was an attachment before judgment. In execution of this decree the property was sold subject to mortgage and it appears that the property was purchased by non applicant No. 1 Fateh Mohammad. He therefore made an application for deLi"Very of possession under order 2) Rule 97 CPC. This application was made on 25-7-1979. It appears that the present applicants on 10-9-1979 filed an application in the Court below bringing it to the notice of the Court that these applicants were in possession even before the suit was filed in their own rights. One of the rights alleged was on the ground that Allauddin was a tenant who was in possession when the suit was filed and these applicants claimed to be the heirs of Allauddin. On this the auction purchaser i.e. non-applicant No. 1 submitted an application under order 21 Rule 97 and also an application praying for warrants against these applicants for possession. By the impugned order the learned Court below, without examining the matter or permitting the parties to produce any material proceeded to pass the impugned order directing the issue of warrants against the applicants and it is against this order that the present revision petition is filed.

        Held : It is, no doubt, true that when the application was made by these applicants, it was only with an intention to intimate the executing Court that the persons in possession, are not bound by the decree. Whether such applications can or cannot be entertained in the facts of this case, in my opinion it is not necessary to go into that question as admittedly taking the hint from this application the purchaser himself moved an application. When an auction-purchaser moves an application under order 21 Rule 97 the court is bound to enquire into the matter and pass an appropriate order. It appears that in view of the decisions of this Court on which reliance is placed by the learned Court below, the non-applicant made a concession by saying that the application under order 21 Rule 97, is not pressed but it is patent that these applicant who claim to have been in possession even on the date when the suit was filed are not parties to the suit and therefore they cannot be said to be the judgment-debtors. It is also dear that before a warrant for possession could be issued against them, the Court below bas to come to a conclusion that they were in possession through the judgment-debtors. Unless this finding is reached, the order for issue of warrants against anyone cannot be said to be justified. There is no material on the basis of which this conclusion could be reached. Under these circumstances, the order passed by the learned Court below could not be maintained. The learned Court below has committed material irregularity in the exercise of jurisdiction in directing issue of warrants without going into the matter as to whether it could be held that these applicants were holding property through the judgment-debtors.

        The revision petition is allowed. The order dated 24th April 1981 is set aside. It is directed that the Court below shall proceed to enquire into the application under order 21 Rule 97 made by the auction-purchaser after affording opportunity to the parties to lead evidence. It is further directed that the learned Court below shall dispose of the matter within six months from the date on which the parties shall remain present in the Court after this decision. Revision allowed.