Bhakti Sudha Pattadar v. Manorama Devi — 1970 DIGILAW 178 (PAT)

Judgment K.B.N.Singh, J. 1. These three revision petitions arise out of an order dated the 31st January, 1970, allowing Miscellaneous Case No. 21 of 1965 under Order XXI, Rule 97 of the Code of Civil Procedure (hereinafter referred to as the Code) filed by opposite party No. 1 Smt. Manorama Devi and directing her to he put in possession of the properties sold. The objectors in the said Miscellaneous case are petitioners in the three civil revision applications. As the three petitions arise out of the same order, they have been heard together and this order will govern all of them. 2. Objector No. 11 in the aforesaid Miscellaneous case, Bhakti Sudha Pattadar, is the sole petitioner in Civil Revision No. 482 of 1970, while opposite party No. 10 in the Miscellaneous case, Gopal Das Munjal, is the sole petitioner in Civil Revision No. 669 of 1970. Opposite Parties Nos. 1 to 9 in the Miscellaneous case are petitioners in Civil Revision No. 485 of 1970. 3. Srimati Manorama Devi, opposite party No. 1, obtained a mortgage decree in Mortgage Suit No. 50/33 of 1959 against Kamini Kanta Pattadar on 25-2-1961 and executed the decree in Execution Case No. 56 of 1962, in the Court of the Special Subordinate Judge, Ranchi, and herself purchased the disputed lands, described in Schedules A and B of the sale certificate, in auction sale in the said execution case on 28-4-1964 and after obtaining a sale certificate in respect thereof, got a writ of delivery of possession issued from the Court. On the 21st February, 1965, the Nazir of the Court went with the writ of delivery of possession to effect delivery of possession. The Nazir could deliver possession in respect of plot No. 1122A and resistance to the delivery of possession was offered by twelve persons including the eleven petitioners in the three Civil Revision Petitions. The Nazir submitted a report dated 21-2-1965 to the Court regarding the resistance offered to the delivery of possession. Thereafter, on the 11th March, 1965, the decree-holder auction-purchaser, opposite party No. 1, filed a petition under Order XXI, Rule 97 of the Code complaining of resistance to delivery of possession by the aforesaid objectors and for investigation into the matter. 4. Thereafter, on the 11th March, 1965, the decree-holder auction-purchaser, opposite party No. 1, filed a petition under Order XXI, Rule 97 of the Code complaining of resistance to delivery of possession by the aforesaid objectors and for investigation into the matter. 4. The further case of the decree-holder was that on the 8th May, 1946, Kamini Kant Pattadar mortgaged some of his properties to Chotanagpur Catholic Mission Co-operative Credit Society and five months later on the 28th September, 1946, he mortgaged the aforesaid property and some other properties to Model Bank of India Limited. The Model Bank of India assigned the mortgage bond in favour of Manorama Devi, decree-holder opposite party No. 1 (vide Ext. 15/7), on the basis of which the assignee (opposite party) filed a mortgage suit (No. 50/33 of 1959) and obtained preliminary decree on the 18th June, 1960 and final decree on the 25th February, 1961, for Rs. 73,870 and odd. against Kamini Kant Pathular in which she impleaded the United Motor Works and the Chotanagpur Catholic Mission Co-operative Credit Society (Exts. 8 and 13), and in execution of the mortgage decree purchased the aforesaid plot on the 28th April, 1961 in execution case No. 50 of 1963, and thereafter applied for delivery of possession. According to the decree-holder, the objectors were the creatures of the judgment-debtor and were restisting possession on his behalf and his collusion. 5. Out of the twelve objectors named in the miscellaneous rase under Order XXI, Rule 97 of the Code, objectors Nos. 10, 11 and 12 claimed different parcels of Schedule B land of the sale certificate of the decree-holder, opposite party No. 1, while the remaining objectors claimed different parcels of Schedule A land of the same sale certificate. Out of the twelve objectors in the miscellaneous case the objector referred to as opposite party No. 12 in the miscellaneous case did not contest the miscellaneous case. The other eleven objectors, who are petitioners in these petitions, filed separate objections to the miscellaneous case. The objections filed by objectors 1 to 9 (petitioners in Civil Revision No. 485 of 1970) were common and they claimed different parts and parcels of Schedule A lands, which has been mentioned in the order under section (sic) and it is not necessary to mention separately. The objections filed by objectors 1 to 9 (petitioners in Civil Revision No. 485 of 1970) were common and they claimed different parts and parcels of Schedule A lands, which has been mentioned in the order under section (sic) and it is not necessary to mention separately. Their case is that after taking settlement from the landlord of the disputed land of Schedule A, Kamini Kanta Pattadar defaulted in payment of Chhaparbandi rent and the landlord filed rent suit No. 211 of 1952 and obtained a decree for arrears of rent (Ext. H). The landlord decree-holder Jamadar Narbadeshwar Prasad Singh, auction purchased the said properly in Execution Case No. 11 of 1956 on the 18th July, 1956 and obtained delivery of possession thereof on the 30th May, 1958, and came in possession. Thereafter, the landlord sold the disputed land to the different members of the opposite party (Petitioners in Civil Revision No. 485 of 1970) by different registered sale deeds between 18th July, 1961 and 1st November, 1962, for valuable considerations and they came in possession of those lands thereafter. They have been mutated in the Government records after vesting of the estate and they are paying rent thereafter and getting rent receipts. Some of them also claimed to have got their lands demarcated by putting boundary pillars and boundary walls and some of them also claimed to have put some structures thereon. They have thus claimed to have acquired good title and are in bona fide possession and they denied the claim made on behalf of the decree-holder, of there being any collusion between them and the judgment-debtor Kamini Kanta Pattadar. 6. The petitioner in Civil Revision No. 669 of 1970 Gopal Das Munjal has claimed adverse possession over Plot No. 939/A which contains a house, since January, 1948, and alleged that he has thus acquired indefeasible title. His case was that the house in question was partly constructed by Mohammad Sakoor who fled away to Pakistan and thereafter he took possession and completed it. 7. The petitioner in the other Civil Revision (No. 482 of 1970) who was objector opposite party No. 11, is Bhakti Sudha Pattadar, widow of Kamini Kanta Pattadar. His case was that the house in question was partly constructed by Mohammad Sakoor who fled away to Pakistan and thereafter he took possession and completed it. 7. The petitioner in the other Civil Revision (No. 482 of 1970) who was objector opposite party No. 11, is Bhakti Sudha Pattadar, widow of Kamini Kanta Pattadar. She claimed possession over some of the plots of Schedule B. It may be pointed out that she also claimed Plot No. 939A, claimed by Gopal Das Munjal, the petitioner in Civil Revision No. 669 of 1970, to the extent of 0.67 acre, out of 0.75 acre. Her case is that the landlord filed two suits for arrears of Chhaparbandi rent, being money suit No. 280 of 1960 and money suit No. 219 of 1960 and obtained decrees against the Raiyats, in execution of which the lands mentioned in Schedule B were sold to the landlord, and the landlord obtained delivery of possession and remained in possession till he sold the same to this petitioner on the 10th April, 1963, by a registered sale deed. She got her name mutated and obtained rent receipts. She has accordingly claimed to be in possession in her own right. 8. It has been urged by Mr. Sinha on behalf of the petitioner in Civil Revision 669 of 1970, which argument has been adopted by learned counsel for the petitioners in the other two revision petitions, that Execution Case No. 56 of 1962 was dismissed for default on the 10th of March, 1965, and the application under Order XXI, Rule 97 of the Code having been filed on the 11th of March, 1965, after the dismissal of the execution case, was not maintainable, as the execution case itself was dismissed. Reliance was placed in this connection on a decision of the Supreme Court in the case of D. Bhushayya V/s. K. Ramakrishnayya, AIR 1962 SC 1 886 in support of the submission. 9. Mr. Chatterji, on behalf of the decree-holder opposite party, however, has Urged that the trial Court by its earlier order dated the 24th March, 1969 has decided in favour of maintainability of the miscellaneous case in spite of dismissal of the execution case as a preliminary point against which no revision application was preferred and, therefore, it was submitted that the order became final and could not be challenged in this revision. 10. 10. It appears that in pursuance of the order for delivery of possession the Nazir of the Civil Courts went for effecting delivery of possession on the 21st February, 1965, and delivered possession of one of the plots, while resistance was offered on behalf of the objectors in respect of the other plots, in respect of which delivery of possession was sought to be effected and objections were filed before him by objectors. It appears from the report of the Nazir dated the 21st February, 1965 that written objections were filed before him, objecting to the delivery of possession and therefore he returned the writ of delivery of possession unexecuted to the executing Court with objections filed before him. The Court by order dated the 3rd March, 1965 directed the decree-holder to take steps by the 10th March, 1965. On the 10th of March, 1965, the decree-holder having taken no steps, the execution case was dismissed for default. Thereafter the petition under Order XXI, Rule 97 of the Code was filed on the 11th of March, 1965, which was registered as miscellaneous Judicial Case No. 21 of 1965. It will thus appear that resistance to the delivery of possession was offered on the 21st February, 1965, and within thirty days, as required under Article 1 of the Limitation Act of 1963, an application under Order XXI, Rule 97 of the Code was filed, which was well within the period of limitation prescribed. The decree-holder was entitled under the law to file an application under Order XXI, Rule 97 within a period of thirty days from the date of resistance and the Court below should not have dismissed the execution case for default before the expiry of that period. 11. Be that as it may, a question arises, whether in view of the dismissal of the execution case, the miscellaneous case was maintainable. It is well settled that where an application of a decree-holder or an auction-purchaser, for delivery of possession is rendered infructuous by reason of obstruction or otherwise, the decree-holder or the auction-purchaser is entitled to make another application for issue of a fresh writ of delivery of possession without filing an application under Order XXI, Rule 97 of the Code even beyond thirty days and he is under no obligation to file an application under Order XXI. Rule 97 of the Code within the period of limitation as laid down in a special Bench decision of this Court in the case of Raghunandan Prosad Misra V/s. Ram Charan Manda, 4 Pat LJ 94 = (AIR 1919 Pat 425 (2) (FB)). 12. In the instant case, the sale was knocked in favour of the decree-holder, the highest bidder, on the 28th April, 1964, and the sale was confirmed on the 2nd June, 1964, as no objection to its confirmation was raised. The sale certificate was sealed and signed on the 27th of June, 1964. As already pointed out, the Nazir had reported about obstruction offered in delivery of possession and he also forwarded to the Court written objections filed by the petitioners. The fact of obstruction was thus brought to the notice of the Court by the report of the Nazir dated the 21st February, 1965. The obstruction having been reported to the Court, the remedy available to the decree-holder to file an application under Order XXI, Rule 97 of the Code, could not be taken away by erroneous dismissal of the execution case for default even before the expiry of thirty days, the period prescribed by Article 129 of the Limitation Act, for filing an application under Order XXI, Rule 97 of the Code. The summary remedy provided under Rules 95 and 96 onwards, is for the convenience of the auction-purchaser. 13. The view I have taken gains support from the Full Bench decision of this Court in the case of Tribeni Prasad Singh V/s. Ramasray Prasad Chaudhari, AIR 1931 Pat 241. In that case the question which arose for consideration before the Full Bench was as to whether the only remedy available to the decree-holder auction-purchaser was to take delivery of possession under Order XXI, Rule 95 of the Code of Civil Procedure within three years under Art. 181 of the Limitation Act and a separate suit for possession was barred under Sec. 47 of the Code of Civil Procedure, and it was held that the suit was not barred as the question of possession of property purchased at an execution sale does not raise any question relating to execution, discharge or satisfaction of the decree, rather the suit for possession proceeds on the basis of the validity of the execution and sale for satisfaction of the decree. It was also held by the Full Bench that in case of execution of a decree for sale under a mortgage or a simple money decree on sale of the property and its confirmation and satisfaction or the decree, the execution case is finally disposed of and thus execution of the decree comes to an end with sale and satisfaction of the decree. It was also pointed out by their Lordships that Rules 95 and 96 of Order XXI provide only a summary remedy to purchasers to obtain possession from the Court and subsequent Rules 97 to 103 deal with resistance offered to delivery of possession. The following observations of Iwala Prasad J. in that case may usefully be referred to:- - "Now Rules 95 and 96, Order XXI, provide a summary remedy for the purchaser to obtain possession from the Court that sold the property to him, and the subsequent Rules 97 to 103 deal with resistance offered to the delivery of possession to him. A private vendor is bound to give possession after the transaction of the sale is completed. Recognising this principle the rules give to the Court, that seized the properly and sold it, power to deliver possession of the property to the purchaser after the sale is completed and confirmed and a sale certificate is granted. Consequently, these rules have been placed in the chapter relating to execution of decrees and orders for the sake of convenience and it by no means shows that delivery of possession should be regarded as raising a question relating to the execution, discharge or satisfaction of the decree under Sec. 47 of the Code, so as to bar a separate suit for possession. It is noticeable that in order to obtain possession by means of a summary procedure under the aforesaid rules, an application has to be made and an order obtained for delivery of possession. It is in pursuance of this fresh order that possession is delivered and not in the course or continuation of the execution of the decree which terminated with the sale of the property; whereas, under Rule 35 possession is delivered in the course of execution of the decree which directs the delivery of a specific property." 14. In the instant case, as already mentioned, undisputedly, there was a resistance to delivery of possession by the Nazir before whom objections were filed by objectors. In the instant case, as already mentioned, undisputedly, there was a resistance to delivery of possession by the Nazir before whom objections were filed by objectors. The order of the executing Court dated the 3rd March, 1965, also recites the fact that the service report of delivery of possession issued under Order XXI, Rule 95 was received with objections filed by persons concerned, and the Court fixed 10th of March, 1965, for the decree-holder to take necessary steps on which date the decree-holder took no step and the case was dismissed for default. The question with regard to the maintainability of the application under Order XXI, Rule 97 of the Code of Civil Procedure filed on the 11th March, 1965, was considered as a preliminary issue by the Court below on the 24th March, 1969 and it was decided in favour of the decree-holder that the miscellaneous case was maintainable and no revision application having been filed against that order, it became final. 15. The Supreme Court decision, reported in AIR 1962 SC 1 S86 (supra), relied upon on behalf of the petitioners, has no application. In that case it was held that an application for setting aside sale was a proceeding in execution. The question whether delivery of possession after sale was a proceeding in execution or not did not fall for consideration before the Supreme Court, with which we are concerned in the instant case. For obtaining delivery of possession after sale, an independent application has to be filed under Order XXI, Rule 95, of the Code of Civil Procedure and, as laid down by the Full Bench decision of this Court (AIR 1931 Pat 241), the execution case terminates with the confirmation of sale, and it is for the convenience of the purchaser that a summary remedy has been provided for obtaining possession under Rule 95 of Order XXT of the Code. It may be mentioned that this point has not been specifically raised either in the grounds of Civil Revision No. 669 of 1970 or in the grounds of the other two civil revision applications. Thus, there is no substance in the submission of learned counsel for the petitioners that the execution case having been dismissed for default, the application under Order XXI, Rule 97 of the Code, was not maintainable. 16. Thus, there is no substance in the submission of learned counsel for the petitioners that the execution case having been dismissed for default, the application under Order XXI, Rule 97 of the Code, was not maintainable. 16. So far as Civil Revision No. 669 of 1970 is concerned, no other point has been urged by learned counsel for the petitioner in support of the revision. The trial Court has found in Paragraph 33 of the judgment that the petitioner in this revision has failed to substantiate that he was in possession of this property on his own account in good faith or on account of some person other than the judgment-debtor. It has also found that this petitioner has failed to establish that he was ever in possession of this property or that the three persons, namely, Jaipal Singh, Mahendra Singh or Sardarji, who were in possession of the property, were ever in possession on his account or on his behalf. That being a finding of fact, is binding on this Court in civil revision and no error of jurisdiction has been pointed out to interfere with that finding in the order in this regard. Thus, there is no merit in Civil Revision No. 669 of 1970 and it has to be dismissed. 17. Coming to Civil Revision No. 482 of 1970, as already pointed out, the petitioner Bhakti Sudha Pattadar is the widow of Kamini Kant Pattadar, the original judgment-debtor. She claims some of the plots of Schedule B land under the said sale certificate including plot No. 939 A, 75 decimals of which plot were claimed by the petitioner of Civil Revision No. 669 of 1970. She claims an area of 67 decimals in this plot. Her case is that the landlord Jamadar Narbadeshwar Prasad Singh instituted Money Suits Nos. 218, 219 and 221 of 1930 for arrears of chhapar-bandhi rent and in execution of the decrees obtained in the said money suits, he purchased Schedule B land including these plots and obtained delivery of possession over them on 13-7-1962. Thereafter this petitioner purchased these lands by registered sale deeds dated 10-4-63 for Rupees 17,000/-. Her case has been considered by the trial Court in Paragraphs 33 to 44 of the judgment and the Court has found that this fraudulent transfer was brought out at the instance of judgment-debtor Kamini Kant Pattadar in the name of bis wife. Thereafter this petitioner purchased these lands by registered sale deeds dated 10-4-63 for Rupees 17,000/-. Her case has been considered by the trial Court in Paragraphs 33 to 44 of the judgment and the Court has found that this fraudulent transfer was brought out at the instance of judgment-debtor Kamini Kant Pattadar in the name of bis wife. It also found that neither the landlord auction-purchaser nor opposite party No. 11 was ever in possession of any portion of the lands claimed by this petitioner. 18. Mr. L.M. Sharma, appearing on behalf of the petitioner, has urged that the fact that this petitioner purchased by a registered sale deed is sufficient to show that the finding recorded by the trial Court is erroneous. The finding with regard to possession at any rate being the finding of fact is binding in revision. No error of jurisdiction has been pointed out to interfere with the finding recorded by the trial Court. It appears that these properties were auction sold in execution of earlier decrees in favour of the United Motor Works commonly known as Lal Co. and the effect of all these combating claims and title can adequately be gone into in the alternative remedy available to the petitioner in an application under Order XXI, Rule 103 of the Code where questions of fact and law as also the question of the effect of previous litigation can fully be gone into and thrashed. 19. In Civil Revision No. 485 of 1970, Mr. Balbhadra Prasad Singh appearing on behalf of the petitioners, has urged that the finding of the trial Court is speculative and based on error of record that all the nine petitioners who are purchasers of different parcels of the lands of Schedule A are co-workers with Krishna Kant Pattadar son of Kamini Kant Pattadar, judgment-debtor, in the National Coal Development Corporation (hereinafter referred to as N.C.D.C. for the sake of brevity), and the trial Court has also committed error of record in holding that the lands were sold on the same day. It is no doubt true that all these purchasers are not N.C.D.C. employees but only petitioners Manoranjan Rai Rajni Kumar, J. P. Chatterji, B.K. Ambastha and Aqil Ahmad are N.C.D.C. employees. In other words, four of these purchasers are not N.C.D.C. employees. It is no doubt true that all these purchasers are not N.C.D.C. employees but only petitioners Manoranjan Rai Rajni Kumar, J. P. Chatterji, B.K. Ambastha and Aqil Ahmad are N.C.D.C. employees. In other words, four of these purchasers are not N.C.D.C. employees. But one Nalini Kant Naik, a N.C.D.C. employee has been examined as a witness on behalf of the petitioners K.K. Lal and A. Sahay, who has proved rent receipts for other petitioners also. The Court below has drawn adverse inference against the petitioners in so far as the petitioners working in the N.C.D.C. or their witnesses have tried to show their aloofness from Krishna Kant Pattadar. The Court below has also found that petitioners Manoranjan Rai and J. P. Chatterji have erected compound wall and pillars without any sanction from the municipality and the house claimed to have been constructed by petitioners B.K. Ambastha and Aqil Ahmad are not on the disputed plot No. 283 but on the adjoining plot No. 246. The Court has also come to the conclusion that these purchasers were not bona fide purchasers, and has relied on a number of circumstances, evidence and grounds for coming to that finding; and has also found in Paragraph 75 of the judgment that these petitioners in collusion with Kamini Kant Pattadar, Krishna Pattadar, the landlord and other N.C.D.C. employees had brought these sale deeds into existence in the year 1961-62, 9 years after these properties were sold in execution of decree of United Motors over which it obtained delivery of possession in 1955. The resistance in question was offered in collusion and conspiracy with the judgment-debtor. This again is a finding of fact which is binding on me in revision. Mr. Singh has urged that under the Chhaparbandhi lease granted by the landlord to Kamini Kant Pattadar rent was the first charge on the holding and the landlord has first charge and, therefore, the decree obtained by United Motors or the Model Bank could not have precedence over the purchase made by the landlord. This position has been disputed by Mr. R. S. Chatterji who has urged that the suit filed by the landlord was money suit and not rent suit and the property having been sold earlier the landlord purchased bag of wind and so did these petitioners. This position has been disputed by Mr. R. S. Chatterji who has urged that the suit filed by the landlord was money suit and not rent suit and the property having been sold earlier the landlord purchased bag of wind and so did these petitioners. These plots have been the subject-matter of dispute in a number of litigations at the hands of Chotanagpur Catholic Mission, United Motor Works and opposite party No. 1, decree-holder as assignee of Model Bank. The petitioners having an alternative remedy, all these complicated questions can very well be gone into in the alternative remedy available to the petitioners in a suit filed under Order XXI, Rule 103 of the Code of Civil Procedure. I have purposely avoided expressing any opinion with regard to these varying claims of the effect of the earlier litigation, lest it may prejudice one party or the other in subsequent litigations wherein none of the findings recorded by the trial Court in the summary proceeding under Order XXI, Rule 97 of the Code will stand in then-way in getting the matter fully thrashed. 20. After carefully going through the judgment I do not find any error of jurisdiction so as to interfere with the order of the trial Court in exercise of the revisional jurisdiction of this Court. The petitioners, also having alternative remedy I do not think that this is a fit case to interfere with the order in exercise of the revisional jurisdiction of this Court. There being no merit in these three revision petitions they are dismissed, but in the circumstances of the case each party will bear its own costs of this Court.