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2001 DIGILAW 138 (ALL)

JAI PRAKASH AGRAWAL v. ARJUN KUMAR AGRAWAL

2001-02-13

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THIS is an appeal against the Judgment and decree, dated 24. 8. 2000 passed in Misc. Case No. 4 of 2000 Jai Prakash Agarwal v. Arjun Kumar Agarwal. ( 2 ) I have heard Sri M. Islam, learned counsel for the appellant and Sri Rajeev Chaddha, learned counsel for the respondent and have perused the record. The facts giving rise to this appeal are as follows : the Suit No. 12 of 1998 was filed by the opposite party against Sri Parmeshwar Prasad, father of the appellant. The Suit was decreed for eviction from the shop in dispute and recovery of rent. The decree holder moved an application for execution. The appellant filed objections under section 151, C. P. C. that the decree has been obtained by fraud. That the judgment debtor is not the tenant of the disputed shop. On the other hand, the appellant has contended that he is the tenant of the shop that, therefore, the decree cannot he executed against the appellant. It was further pleaded that the appellant has also filed a Suit No. 368 of 2000 for injunction to restrain the respondent from dispossessing him from the disputed shop in the execution of the said decree. That notice have been issued in that suit. The application was opposed by the respondent and it is contended that the father of the appellant was the tenant of the disputed shop and the suit was rightly decreed. That the application is not maintainable. That the appellant was also doing Pairvi on behalf of his father in the said suit. That Parmeshwar Prasad, father of the appellant contested the suit and also filed civil revision in the High Court which was dismissed on 24. 7. 2000. He did not allege that he is not the tenant. That the decree has become final. " ( 3 ) THE learned Additional District Judge has held that the objections are not maintainable and that the appellant is not the tenant of the disputed shop. He, therefore, dismissed the objection. Aggrieved by the order, this appeal has been filed. ( 4 ) AFTER considering the arguments, I am of the definite opinion that the impugned order is the only just and proper and there is no reason to Interfere in the order. He, therefore, dismissed the objection. Aggrieved by the order, this appeal has been filed. ( 4 ) AFTER considering the arguments, I am of the definite opinion that the impugned order is the only just and proper and there is no reason to Interfere in the order. The objections of the appellant who is not the judgment debtor are not maintainable either under Section 151, C. P. C. or under Section 47, C. P. C. The appellant is an outsider and is not party to the suit and, if he is in the possession of the property in his own right, he can only put resist at the time of delivery of possession and these objections are not maintainable. After dispossession, he can take resort to the provisions of Order XXI, Rule 99, C. P. C. There is specific provision under Order XXI, Rule 99, C. P. C. and, therefore, application under Section 151 is not maintainable. ( 5 ) ON merits also, I do not find any force in the appeal. The decree was passed against the father of the appellant, who contested the suit and also preferred revision in this Court. The decree has been confirmed in the revision. The respondent has alleged that the appellant was doing Pairvi in this case. Even if it is not so, it can be presumed that the appellant being son and the judgment debtor had knowledge of the suit. If he was in possession of the shop independently, he should have moved an application in the suit for impleading him as a party. However, this was not done by him nor his father pleaded that the appellant is tenant. The objections have been filed only to delay the execution of the decree with mala fide intention. Admittedly, the appellant filed the suit No. 368 of 2000 for injunction in which he prayed that he be not evicted in the execution of the said decree. He failed to get any interim order in that suit as well, which show that there is no prima facie case. The lower court rightly rejected the objections. ( 6 ) I do not find any ground to interfere in the impugned order. ( 7 ) THE appeal is, accordingly, dismissed. .