IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.223 of 2009 Lal Babu Yadav, Son of Sita Ram Yadav, resident of Mohalla Hans Raj Kee Deorhi, Sadar Gali, (Banwari Tola), P.S.-Khajekallan, Distt.- Patna. …..Petitioner/Objector Versus 1. Leela Devi, Wife of Late Dwarka Prasad, resident Mohalla Hans Raj Kee Deorhi, P.S.-Khajekalan, Distt.-Patna. …..Opposite party/Decree Holder. 2. Amarnath Yadav, Son of Sita Ram Yadav, resident of Hans Raj Kee Deorhi, Sardar Gali (Banwari Tola), P.S.-Khajekallan, Dist.- Patna. 3. Rahul 4. Rohit 5. Rani 3, 4 & 5 are minor sons and daughter of Amarnath Yadav under the guardianship of natural father Amarnath Yadav living with him at Hans Raj Kee Deorhi, Sardar Gali (Banwari Tola), P.S.- Khajekallan, Dist.-Patna. 6. Sita Ram Yadav son of Late Jaggu Yadav, resident of Hans Raj Kee Deorhi, Sardar Gali (Banwari Tola), P.S.-Khajekallan, Dist.- Patna. ----------- 03. 15.05.2009 Heard both the sides. A decree enforcing the performance of contract was passed in favour of Opposite Party No. 1, Leela Devi and against Opposite Party No. 2, Amarnath Yadav, who is the full brother of the petitioner being sons of Sita Ram Yadav. It appears that there was a partition suit between the father, i.e., Sita Ram Yadav and his two sons, i.e., the present petitioner, Lal Babu Yadav and Opposite Party No. 2, Amarnath Yadav which was registered as Partition Suit No. 59 of 2005. Subsequently, the - 2 - parties appear to settle the suit by compromise and accordingly the dispute was referred by the trial court to the Lok Adalat for resolution of the dispute. The parties appeared there and filed compromise petition and on that basis a compromise decree was passed in terms of the compromise petition filed before the Bench of the Lok Adalat and the award of the Lok Adalat was passed making the compromise petition part thereof. It appears that Opposite Party No. 2, Amar Nath Yadav had entered into a contract to sell the part of the disputed property which was the subject matter of above noted partition suit. The Opposite Party No. 1, Lella Devi filed a suit bearing No. 30 of 2005 and that suit was decreed and the decree was put to execution. The present petitioner, Lal Babu Yadav, filed a petition under Order 21 Rule 24 of the C.P.C. for delivery of possession in execution of the decree passed in the suit for specific performance of contract. The parties are at controversy as to whether the petition could be maintained without there being physical resistance from any person in execution of the decree and specially in delivering the possession to the decree-holder. Learned counsel for the petitioner has cited a decision before me of the Supreme Court reported in AIR 1998 SC 1745, Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Another as also a - 3 - Bench decision of this Court reported in 1998(1) PLJR 157, Md. Jamilur Rahman Vs. Smt. Bachi Devi. The learned counsel for the Opposite Party No. 2, has placed before me the judgment of a Division Bench of the Court reported in 1992 (2) PLJR 805 Abdul Bari Vs. Anisul Rahman and Another. The contention of the petitioner is that resistance could be lawful and not always physical. Learned counsel for the opposite party submits that unless there is a physical resistance in execution of the decree by delivery of possession to decree-holder the Court may not maintain the petition under Order 21 Rule 97 of the CPC. The learned counsel for the petitioner has filed a supplementary-affidavit indicating execution report for the execution of the decree and that indicates that the delivery of possession has been completed. The view taken in all the decisions referred to above, which have been filed by both the sides, is that question of possession of the third party and his title or interest in that property could never be gone into by an executing Court under Order 21 Rule 97 of the C.P.C. This is clearly held by the Division Bench decision of Abdul Bari (supra). In the light of the decision of this Court it could be concluded that the petitioner, Lal Babu Yadav has his share in the part of the property and his filing of the petition under Order - 4 - 21 Rule 97 CPC could not be said to be premature or not maintainable or not to be decided. Once a petition has been filed raising the question of title or interest that has to be disposed of and execution of the decree has to be stayed. The Executing Court shall be bound to adjudicate upon the right and title of the petitioner in the suit property as per the provision of Order 21 Rule 97. In the result, the petition is allowed. The court below is directed to take back the Miscellaneous case on its file and proceed to hear it as per law. No order as to cost in the facts of the case. Vikash/- (Dharnidhar Jha, J.)