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R.C.LAHOTI, ASHOK BHAN
Har Vilas – Appellant
Versus
Mahendra Nath – Respondent
Key Points: - The court held that a third party claiming possession can resist delivery of possession by filing an objection under Order 21, Rule 97, and such objection must be determined by the Executing Court (!) . - The appeal was allowed; the impugned decisions were set aside and the objection filed by the objector shall be heard and decided by the Executing Court in accordance with Rule 97 read with Rule 101 Order 21 CPC; no separate suit is maintainable (!) . - The appellant was granted liberty to seek withdrawal of Suit No. 286 of 1990 without adjudication on merits, reflecting one outcome of the decision on maintainability and process (!) . - The High Court’s and Full Bench decisions upholding objections under Rules 35, 36, 95, and 96 were overruled; Shreenath & Anr. v. Rajesh & Ors. (1998) 4 SCC 543 is invoked to settle the point (!) . - The case involves a decree for specific performance and possession; the third party’s objection arises during execution of the possession decree (!) (!) . - No order as to costs was awarded (!) . - The decision clarifies that a third party’s right to resist delivery is not contingent on filing a separate suit and should be adjudicated on Rule 97/101 of Order 21 CPC (!) .
ORDER :
R.C. Lahoti and Ashok Bhan, JJ. - Mahendra Nath, respondent No.1, filed a suit for specific performance of an agreement of sale dated 17.9.1974, impleading respondent Nos.2 to 5 as defendants. The suit, registered as Original Suit No.72 of 1975 in the Court of the Civil Judge, Mainpur, was decreed on 4.3.1978. The decree is for specific performance of the agreement dated 17.9.1974 and for possession over the land in suit. This decree has achieved a finality.
2. The decree was put to execution. When the warrant for delivery of possession was sought to be executed, the appellant offered resistance claiming to be in possession of the suit property and not bound by the decree. He preferred a petition purporting to be under Rules 35 and 97 of the Order 21 of the Code of Civil Procedure before the Executing Court. The objection was dismissed as not maintainable. The appellant preferred a revision to the High Court which too has been dismissed following a Full Bench decision of the High Court of Madhya Pradesh in Smt.Usha Jain & Ors. v. Manmohan Bajaj, AIR 1980 MP 146 : 1980 MPLJ 429 (FB).
3. The view taken by the High Court of Madhya Pradesh in the above-noted decision is that durin
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