JUDGMENT
R.C. Lahoti, J.
(1) Whether a receiver appointed in execution of a decree for partition of joint Hindu family property can be aided by the Court to remove persons not parties to the suit from possession over the property is the question arising for decision in this appeal.
(2) The appellants are 12 in number. None was a party to the suit. Dr Rattan Lal Mandlaus, the respondent No. 1 had filed a suit for partition of joint Hindu family property against 9 defendants including one Smt Uma Devi. The plaintiff had claimed one-half share of property and had sought for its partition by metes and bounds separating, it from the other one-half which was the entitlement of all the defendants jointly. On 14.2.84, all the parties to the suit filed a compromise petition which was accepted by the Court and decree in terms thereof was directed to be passed. One of the properties in the suit consisted of 20 shod of varied sizes and land measuring 7389 sq yds. situated at 438/49A in revenue estate of Jhilmil Tahirpur Ms 6 Delhi Shahdara Road Delhi, According to the compromise, this property was agreed to be shared between the plaintiffs wife Smt Neera (who was not a party to the suit and Smt Uma Devi defendant No. 6 in the ratio of one-third and two-third respectively. The defendants 1 to 5 agreed to remove themselves from the joint possession of this property. They also undertook that Sh Matu Ram or any other person in its occupation would vacate the property within one week and they would hand over possession of the same lo the plaintiffs wife and defendant No. 6. respectively within the same period. There was some litigation pending about the property which was agreed to vest in future in the plaintiffs wife and Smt Uma Devi in the ratio of one-third and two third respectively . The said ‘Matu Ram or any other person in occupation of the property was also neither a party to the suit nor a signatory to the compromise.
(3) Though the suit was disposed of the proceedings were revived on some miscellaneous applications seeking issuance of injunction, appointment of commission, etc. On 31.7.91, the plaintiff moved an application under Order 40 rule I Civil Procedure Code submitting that Uma Devi the then defendant No. 6 had died and her share in the suit property has devolved on Smt Anita Gupta. It was alleged that defendants 1 to 5 who had undertaken to remove themselves from possession of the property also to remove Matu Ram or any other person in occupation of the property, vacate the same and deliver possession to the plaintiffs wife and defendant No. 6 had failed to honour their under- taking. In this background the plaintiff sought for himself being appointed a receiver so as to be able to seek police assistance for executing the decree.
(4) On 29.1.93. a learned single Judge of this Court sitting on the original side heard the plaintiff and the defendant’s counsel, allowed the application and appointed the plaintiff Dr. Rattan Lal Mandlaus as the receiver. The Court also directed to Sho of the concerning Police Station to provide police assistance to the plaintiff if required.
(5) Ia 2987/93 was moved by the receiver seeking police help which was also allowed by the learned Judge directing the police to help the receiver in removing the ‘trespasser’s from the said property. Matu Ram was also directed to be removed along with other trespassers.
(6) It appears that the 12 appellants herein claim to be in lawful possession of the property as tenants. They were threatened with dispossession by the receiver. On 27.3.93 they moved an application under Order I Rule 10 (IA No. 3492/93) seeking their impleadment in the suit. Ia 3493/93 was moved by them for staying the Court proceedings and protecting their possession over the property. The Court directed status quo to be maintained.
(7) After hearing the parties by the impugned order Ia 3492/93 has been directed to be rejected. The aggrieved objectors have come up in appeal.
(8) At the time of hearing it was conceded by the learned counsel that the suit having been disposed of by a compromise decree the prayer for impleadment under Order 1 Rule 10(2) Civil Procedure Code was misconceived. It was submitted that on the facts as set out in the Application the Court should have taken cognizance of the application under Order 21 Rule 97 of Civil Procedure Code and proceeded to dispose of the same by reference to the said provision. The stand taken by the learned counsel for the appellants appears to be justified inasmuch as the order dated 4.5.95 passed in the record of the suit shows that the Court had treated Ia 5260/87 as execution application and the applications (IA 3492 and 3493/93) Filed by the objectors as objections to this petition i.e to the deemed execution application. Here itself it may be’ stated that Ia 5260/87 was filed by the plaintiff Dr Rattan Lal on 14.9.87 styed as an application under Or. 26 r. 9, Or. 39 r. 7 S.151, CPC., wherein it was prayed that local commissioner appointed by the Court be directed to supervise delivery of vacant possession over the suit property to the plaintiffs wife and the legal heir of defendant No. 6.
(9) A perusal of the impugned order shows that the learned Single Judge has taken into consideration the merits of the case and while rejecting the application filed by the appellants expressed an opinion on merits holding the appellants to be trespassers having entered into possession of the suit property during the pendency of the suit and therefore not entitled to resist delivery of possession to the receiver.
(10) Having heard the learned counsel for the parties, we are of the opinion that the impugned order cannot be sustained.
(11) A few relevant aspect of the proceedings at different stages deserve to be taken not of. The suit having been disposed of Finally by decree having been passed on compromise there had remained nothing to he proceeded with in the suit. There was no occasion for filing of and entertaining different misc applications. The remedy of the persons entitled to execute the decree was to have filed a proper execution application under Order 21 Rule of the Civil Procedure Code However, that irregularity had stood cured by order dated 4.5.95 when a learned single Judge directed one of the applications filed by the plaintiff-decree holder being treated as an application for execution.
(12) It is true that decree for partition of property is a decree for delivery of immovable property within the meaning of Rule 35 of Order 21 of CPC. Only such persons as are bound by the decree can be physically’ ousted from possession during the course of execution of the decree. If the property be in possession of persons not parties to the suit and not bound by the decree then the decree can be executed only by delivering symbolic possession leaving appropriate legal proceedings being initiated for recovery of possession from the persons holding the property. However, under Order 40 Rule 1 of Civil Procedure Code the Court has jurisdiction to appoint a receiver and that jurisdiction can be exercised before or after the passing of the decree.. A party to the suit can be appointed receiver. A receiver if obstructed in taking possession of the property, can be aided by the Court so as to secure possession of the property. Sub Rule (2) of Rule I of Order 40 provides that nothing in Rule I shall authorise the Court to remove from the possession or custody of the property any person whom any party to the suit has not a present right to remove from possession of the property.
(13) In our opinion, the learned single Judge should have applied the provisions of Rules 35 and 97 of Order 21 Civil Procedure Code and held an enquiry before directing delivery of possession by police aid extended to the receiver. The application could not have been disposed of merely by looking into the record and deciding the application by probabilities. A positive finding should have been recorded whether the persons obstructing delivery of possession were the persons bound by the decree and whether the decree-holder had a right to immediate possession from them. In Bhawar Lal v. Satya Narain , it has been held ; “Order 21 Rule 35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. The person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivate title from the judgment-debtor. The Court gets power under Order 21 Rule 97 to remove such obstruction or resistance and direct its officer to put the decree holder in possession of (he immovable property after conducting enquiry under Rule 97. Rule 97 envisages that any person even including the judgment debtor irrespective of whether the claims derivative title from the judgment debtor or set up his Own right title or interest dehors the judgment debtor and he resists execution of a decree, then the court in addition to the power under R. 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree holder gets a right under R 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person.”
(14) In Nooruddin v. Dr. K.L. Anand 57(1995) Dlt 321 (SC) their Lordships having analysed the scheme of Rules 98, 100, 101, 103, 104 of Order 21 of the Cpc, have held:
“THE Execution Court is enjoined to adjudicate the claim or the objection or the claim to resistance. As seen, Rule 97 enables such a person to make an application which must be independent of the judgment-debtor or a person having derive right from the judgment-debtor. The applicant in his own right must be in possession of the property. Admittedly, neither the appellant nor his father was a party to the suit or appeal. Therefore, the decree per force does not bind him.”
“WHEN the appellant claimed independent right, title and interest and resisted the execution, the decree-holder or the appellant should make an application under Rule 97(1) and the Court, in that event, is enjoined to adjudicate the claim and record a Finding allowing or rejecting the claim.”
(15) So also is the view of law taken in Babu Lal vs. Raj Kumar . In the execution application filed under Order 21 Rule 32 of the Civil Procedure Code the appellant had filed an objection on the ground that he could not be dispossessed. The appellant was not a party to the decree for specific performance. His objection was overruled by the executing Court holding that since he had not been dispossessed, application under Order 21 Rule 97 was not maintainable. The High Court of Rajasthan upheld the view. The objector went in appeal to the Supreme Court. Having referred to the law laid down in Bhawar Lal’s case (supra), their Lordships held : “AN adjudication is required to be conducted under Order 21 Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21 Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to Civil Procedure Code that may be pending on the date the commencement of the amended provisions of Civil Procedure Code was secured. Thereafter under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21 Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a compete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.”
(16) It is, therefore, clear that once the appellants had preferred an objection inviting attention of the Court that they were not bound by the decree and could not be dispossessed, the decree-holder should have made an application under Order 21 Rules 97 and 98 of the Civil Procedure Code for removal of obstruction caused by the objector. Even if this was not done, the Court was bound to enquire into the objections preferred by the appellants in view of the law as laid down by the Supreme Court.
(17) In Him Lal Patni v. Loonkaran Sethiya, , it has been held: “Under this order, a receiver is an officer or representative of the Court and he functions under its directions. The Court may, for the purpose of enabling the receiver to take possession and administer the property, by order, remove any person from the possession or custody of the property. Sub Rule (2) of R I of the order limits that power in the case of a person who is not a party to the suit, if the plaintiff has not a present right to remove him. But when a person is a party .to the suit, the Court can direct the receiver to remove him from the possession of the property even if the plaintiff has not a present right to remove him.”
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For the foregoing reasons the appeal is allowed impugned order is set aside. The case is sent back to the trial Court. Ia 3492 and 3493/95 filed by the appellants shall be treated as objections under Order 21 Rule 35(3) read, with Rule 97 CPC. The objections shall be heard and disposed of in accordance with law.