LexTANZEEM-E-SUFIA versus BIBI HALIMAN AND ORS.
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A B c D E F G TANZEEM-E-SUF!A V. BIBI HALIMAN AND ORS. SEPTEMBER 3, 2002 [R.C. LAHOTI AND BRIJESH KUMAR, JJ.] Code of Civil Procedure, 1908-0rder XX/ Rules 97, 99 and IOI- Objection of third party in possession of suit premises-Decree for eviction- Execution petition-Third party filed title suit with prayer/or declaration that decree was not binding on ii and Caveat/or being heard in application under Order XX/ Rule 97-Decree holder filing petition for issuance of writ of delivery of possession-Plea of third party to be heal·d in the petition treating it as application under Order XX/ Rule 97 rejected by executing Court-High Court also denying in view of the suit by third party.for rhe same relief-On appeal, held third party entitled to be heard in the petition as it was actually application under Order XX/ Rule 97-Questions relating to right, title or interest in property relevant for adjudication of application under Order XX/ Rule 97 shall be dealt within the application and not by separate suit. Respondent filed title suit for eviction of defendants which was decreed. She filed exerntion petition for obtaining possession. Judgment Debtor No. 7 did not vacate the premises and told the Nazir that the premises belonged to the appellant-a Sufi Ashram. Appellant (objector) filed application u/s 15, CPC which was registered by trial court. In revision High Court held that the application of rhe appellant-objector (a 3rd party) was premature as the decree holder-respondents had not filed an application under Order 21 Rule 97 CPC. Appellants apart from filing a separate title suit regarding the same property, filed a Caveat in the aforementioned execution case, for being heard in application under Order 21 Rule 97 CPC filed by the decree holder. Decree holder-respondents filed a petition for issuance of writ of delivery of possession. Appellant requested the executing Court to treat the petition as an application under Order 21 Rule 97 CPC. Executing Court rejected the prayer of the appellant holding that appellant had no H 8 1 .. A. •• ,. • ~ TANZEEM-E-SUFIA v. BIBI HAUMAN 9 locus standi to raise objection and the only remedy available to him was A under Order 21 Rule 99 CPC. In revision, High Court held that since appellant had already filed title suit for declaration that the suit filed by the respondent-decree holder was not binding on it, it could not invoke I • provisions of Order 21 Rule 97 for the same relief. In appeal to this Court, appellant contended that ·the petition of B decree-holder for issuance of writ of delivery of possession should be treated as an application under Order 21 Rule 97 CPC, and in that event appellant would be entitled to file objection as a third party in possession. Allowing the appeal, the Court c HELD: I. The petition for issuance of writ of delivery of possession is actually an application under Order 21 Rule 97 CPC. Though it is not ... specifically indicated, but a perusal of the application shows that the resistance/obstruction in delivery of possession, by and at the instance of the appellant is clearly indicated therein. It is mentioned that office of D appellant-society is being run in a portion of the premises in question. It ' is also stated that one person has been set up by the judgment debtor as Secretary of the society. A prayer has been made for delivery of possession by removing all obstructions with the assistance of armed police and lady constables etc. Such an application is envisaged under Order 21 Rule 97 E CPC and that being the position, it entitles the appellant to be heard before passing any order on the application moved by the decree holder. The appellant took extra precaution to inform the Court about its intention to file objections before hand and requested for a hearing. Once an application was moved by the decree-holder, there was no occasion to refuse hearing to the appellant. (13-G-H; 14-A-CI F ... 2. In the instant case, the appellant is claiming its independent right over the property and asserts its possession thereof. Order 21 Rule IOI clearly provides that all questions relating to right, title or interest in - • property relevant to the adjudication of the application, shall be dealt G within the application and not by a separate suit. The High Court therefore, erred in refusing to hear the appellant, on the ground'. that it has already filed a suit for decl
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