IMPORTANT POINT
Only decree holder or auction purchaser of property can file application under Order 21 Rule 97 CPC in case his possession is resisted or obstructed.

Krishna Murari, J.— Heard learned counsel for the petitioners.

By means of this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 14.5.2012 passed by Judge, Small Causes. Court rejecting their application under Order 21 Rule 97 and 101 read with Section 151 CPC as well as revisional order dated 14.5.2013. .

2. The facts leading to the present dispute may be briefly stated as under.

3. Smt. Zaibun Nisa and Smt. Shamun Nisa alongwith their mother late Smt. Ashgari Begum filed a suit before Judge, Small Causes Court on 20.04.1992 against Nazim Ali (respondent No.3 herein) for ejectment and arrears of rent on the allegations that he was a tenant in the disputed property and was in arrears of rent and the tenancy was terminated. In the said suit, Smt. Noorjahan and Shahnoor, the petitioners herein moved an application under Order 1 Rule 10 read with Section 151 CPC for being impleaded in the proceedings on the allegation that Smt. Zaibun Nisa and Smt. Shamun Nisa had wrongly filed the suit alleging themselves to be the landlady and the property in dispute was purchased by one Smt. Shakina Begum from Bhurey Khan by means of registered sale deed dated 28.12.1961. She made an oral hiba dated 27.2.1988 in favour of Allah Bux. The tenant Nazim Ali, who was in occupation of the ground floor in the premises in dispute, vacated the same on 30.7.1991 and handed over the possession to Allah Bux. It was further alleged that the house in dispute was purchased by them from Allah Bux by means of registered sale deed dated 2.3.1993 and were in occupation and possession thereof. Judge, Small Causes Court vide order dated 04.09.2000 allowed the impleadment application. Smt. Zaibun Nisa and Smt. Shamun Nisa along with their mother Ashgari Begum challenged the order of the Small Causes Court by filing a revision, which was allowed by District Judge, Aligarh vide order dated 3.4.2006. Against the said order, the petitioners herein approached this Court by filing Writ Petition No.24355 of 2006, which was dismissed vide judgment and order dated 9.10.2006.

4. It was observed by this Court that after vacation of the house by Shri Nazim Ali and subsequent sale by Allah Bux, the petitioners cannot claim to have any right, title or interest in the said house. If the petitioners desire to claim right, title or interest, they have to file their own independent suit regarding title and ownership and prove the same before the competent court.” This order attained finality, as it was not challenged.

5. Suit was decreed and the respondent Nos. 1 and 2 herein put the decree in execution. In the execution proceedings, the petitioners moved an application under Order 21 Rule 97 and 101 read with Section 151 CPC to resist their dispossession from the property in dispute. Executing court rejected the application against which a revision was preferred, which was also dismissed.’

6. It ‘has been urged by the learned counsel for the petitioners that objection under Order 21 Rule 97 and 101 read with Section 151 CPC has wrongly been dismissed solely on the ground that the application of the petitioners for being impleaded in the suit, was dismissed, as such, they have no right to resist the execution proceedings. It has further been submitted that the courts below failed to look into the provisions of Order 21 Rule 97 as well as 101 CPC and the petitioners being in possession of the property, had full right to protect the same and it was obligatory upon the courts to have decided all the questions relating to the right, title and interest in the property.

7. In order to appreciate the controversy, it may be relevant to quote the provisions of Order 21 Rule 97, which is as under.

“97. Resistance or obstruction to possession of immovable property—(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed b