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PETITIONER:

BRAHMDEO CHOUDHARY

Vs.

RESPONDENT:

RISHIKESH PRASAD JAISWAL & ANR.

DATE OF JUDGMENT: 22/01/1997

BENCH:

A.S. ANAND, S.B. MAJHUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

In this appeal by special leave the appellant has posed

a short question or our consideration. It runs as under:

"Whether the appellant who claims to be a stranger,

occupying decretal premises in his own right and who has

offered resistance to the execution of the decree obtained

by the decree-holder against the judgment-debtor qua such

property can request the Executing Court to adjudicate upon

his resistance and obstruction without being insisted upon

that first he must hand over possession and then only move

an application under Order XXI Rule 99 Code of Civil

Procedure (‘CPC’ for short)?"

The High Court agreeing with the Executing Court has

negatived the aforesaid request of the appellant by holding

that such stranger to the decree who has put forward his

obstruction in the execution proceedings has the only remedy

under Order XXI Rule 99, CPC after his obstruction is first

removed and he is dispossessed of the premises. This Court

granted special leave to appeal to the appellant under

Article 136 of the Constitution of India and granted stay of

dispossession by its order dated 17th September 1996. Shri

Sanyal, learned senior counsel for the appellant has raised

a serious grievance against the aforesaid view of the High

Court.

For resoling the aforesaid controversy between the

appellant on the one hand and respondent no.1 decree-holder

on the other a few introductory facts deserve to be noted at

the outset.

Respondent no.1 filed an Eviction Suit No. 54 of 1988

in relation to six and a half dhurs of the suit land against

respondent no.2 and his mother Bachani Devi. A decree was

passed in favour of respondent no.1 against the judgment-

debtor respondent no.2 in 1988 by the Court of Munsif II,

Munger, Respondent no.1 filed execution proceedings in 1990

against respondent no.2 judgment-debtor. These proceedings

were registered as Execution Case No. 25 of 1990. On 25th

April 1991 respondent no.1 decree-holder obtained warrant

for delivery of possession from the Executing Court against

respondent no.2. When the bailiff went on spot to execute

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the warrant on 28th April 1991 he was resisted by the

present appellant as well as his brothers Sitaram Choudhary

and Jago Choudhary along with 20-25 persons and because of

the resistance offered by them and on account of abuses ad

throwing of bricks and stones indulged into by them it was

impossible to execute the warrant for possession. Under

these circumstances the decree-holder by his application

dated 6th May 1991 requested that help of magistrate and

armed force be made available at his cost for execution of

the decree. It appears that the said application remained

lingering on the file of Executing Court for number of years

and ultimately the Executing Court directed execution of the

warrant for possession by affording help of police force to

the decree-holder. It was at that stage that the present

appellant filed a written application on 22nd January 1996

before the Executing Court to stay operation of the said

warrant and to decide his objections. By a rejoinder dated

1st February 1996 respondent no.1 decree-holder raised the

question of maintainability of such an application before

handing over actual possession to the decree-holder. The

Executing Court without adjucating upon the objections of

the appellant on merits and without deciding whether the

obstruction or resistance offered by him was legally

justified or not dismissed the appellant’s application da