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2010 DIGILAW 254 (JK)

Vineet Gandotra v. Vinod Kumar Gandotra

2010-05-03

Sunil Hali

body2010
1. Property in dispute relates to two rooms and a kitchen situated on the first floor of House No. 171, Raghunathpura Jammu. Dispossession of defendant-Vinod Kumar Gandotra was sought by the present decree holder on the ground that he was licencee and was required to vacate the premises. Stand of the defendant in the suit was that he was a member of the Hindu undivided family and was entitled to his share in the said property. 2. The suit was decreed by the trial court. The said decree was confirmed by two appellate courts. In pursuance to the decree passed, execution petition was filed before the executing court. After filing of the execution petition, an application has been filed by the present petitioner for being impleaded as party in the execution proceedings on the plea that he had filed a suit questioning the right of his father for relinquishing his share in the ancestral property without their consent. He claims to be co-sharer and in possession of the said property. 3. It is further contended that order of status quo passed by the trial court on 22.11.1993, has been made absolute on 14.9.2005 with the consent of learned counsel for the parties. The application of the petitioner for being impleaded as party has been dismissed by the Executing Court on the ground that his earlier application for impleadment as party in the suit in which decree was passed has been dismissed, as such, impleadment of the present petitioner in the execution petition was not maintainable. 4. I have heard learned counsel for the parties. 5. There is no provision for impleading a person as party under Order 21 of Civil Procedure Code. The only provision which deals with 3rd party intervention is Rules 97 and 99 of Order 21 CPC. An application under Rule 97 can be made by a decree holder in the event of resistance or obstruction in obtaining possession of the property shown by the 3rd person. 6. The present case is not covered under Rule 97. Application filed by the present petitioner can best be examined under Rule 99. This eventuality will arise only after a party claimed to be in possession of the property, is dispossessed from it. This application would lie only after its dispossession. 6. The present case is not covered under Rule 97. Application filed by the present petitioner can best be examined under Rule 99. This eventuality will arise only after a party claimed to be in possession of the property, is dispossessed from it. This application would lie only after its dispossession. So, the present application filed by the petitioner cam not be maintained in view of the fact that petitioner has no where stated that he is dispossessed. 7. Other provision that deals with this issue is under Rule 101 of Order 21 CPC, whereby a party is given right to raise all the questions relating to right, title or interest in the property arising between the parties to a proceeding. 8. It may be stated here that the findings of the trial court has been confirmed by two appellate courts. In the suit filed by the decree holder, it has been recorded by the court that on 18.07.1970, a Will was executed by the father of the defendant and thereafter he arranged a sale of the house situated in Chand Nagar, Jammu and received sale consideration amounting to Rs. 43,000/- through cheque Nos. 4963333 and 496334 on 19.7.1980 The said cheques were issued in the names of the sons of the defendant by the plaintiff which were encashed by Smt. Shub Gandotra, wife of the defendant being guardian of minor sons. It is further recorded that an amount of Rs. 40,000/- was paid to the decree holder by the judgment debtor on different occasions. 9. It be seen that issue with regard to the right of the parties relating to title and interest stands already decided by this court. The present petitioner who is son of the judgment debtor will have to await the decision of suit filed by him. So far as executing court is concerned, there is no issue required to be gone into which relates either to title or interest of the parties in the said property, as the same has already stand decided by the court. Decree is to be executed in accordance with judgment passed by the trial court, which stands already confirmed by the two appellate courts. The present petitioner has no right to seek intervention in the matter. 10. In view of the above, I find no force in this revision petition, same is, accordingly, dismissed.