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Fakira v. Sumer Chand & Ors - CR-3479-2004 [2006] RD-P&H 9930 (6 November 2006)


C.R. No.3479 of 2004

Date of Decision:- 09.11.2006

Fakira ....Petitioner


Mr.J.S.Cooner, Advocate


Sumer Chand & others ....Respondents


Mr.Ranjit Saini, Advocate for


Mr.R.S.Mamli, Advocate for





This revision petition is directed against the order dated 3.11.2003 passed by the Executing Court whereby the petitioner's objections filed under Order 21 Rule 97 CPC were rejected as well as against the order dated 1.5.2004 whereby his appeal against the order dated 3.11.2003 of the Executing Court has been dismissed by the learned Additional District Judge, Jagadhari.

Briefly stated, the facts are that the subject property was originally owned by the mother of the petitioner-objector, namely, Smt.Chameli Devi. She sold the same to Mam Raj on 21.11.1989 by way of a registered sale deed. Mam Raj-the decree holder has further sold it to Sumer Chand by way of registered sale deed dated 22.3.2002. The decree under execution dated 1.9.2000 was passed in favour of Mam Raj against Som Nath, Rulda Ram and Ajmer Singh-Patwari. It is in execution of the aforesaid decree by Sumer Chand who has stepped into the shoes of Mam Raj-the original decree-holder, that the petitioner filed the objections in question.

The Courts below have dismissed the petitioner's objection on merits as well as on the ground that before he is heard on merits, he should surrender possession of the subject property to the decree-holder.

Relying upon the judgment of the Hon'ble Supreme Court in Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856, it is contended by learned counsel for the petitioner that the objections raised by a third party like him are maintainable even without surrendering possession of the disputed property.

After hearing learned counsel for the parties, I am of the view that the principles enunciated by their Lordships of the Hon'ble Supreme Court in Brahmdeo Chaudhary's case (supra) are not attracted to the facts and circumstances of the present case.

Undisputedly, the subject property was owned by none else than the mother of the petitioner from whom it was purchased by Mam Raj who further sold the same to the present decree-holder, namely, Sumer Chand. The petitioner, thus, by no stretch of imagination can claim himself to be a stranger or a third party to the proceedings.

That apart, it has also come on record that the petitioner has filed some civil suit challenging the sale deed executed by his mother in favour of Mam Raj.

In this view of the matter, the plea which the petitioner has taken by filing the objections under Order 21 Rule 97 CPC are very much available to him in the above-stated civil suit.

As regard to the possession, it has been found as a matter of fact by the Courts below that one Pawan Kumar is in physical possession of the suit property and not the petitioner.

For the reasons afore-stated, I do not find any merit in this revision petition which is accordingly dismissed, however, with liberty to the petitioner to raise all the pleas in the civil suit already filed by him.

November 09, 2006 ( SURYA KANT )

poonam JUDGE


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