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Rajasthan High Court · body

1996 DIGILAW 1296 (RAJ)

Ramkishore v. Mannaver Begum

1996-11-19

SHIV KUMAR SHARMA

body1996
Honble SHARMA, J. – Both these cases relate to the execution of a decree as such, are decided by a common order. (2) Exparte eviction decree was passed on 14.2.1992 in favour of Smt. Mannaver Begum and against Udai Lal with respect to a shop situated at Ramgarh Mod, Amer Road, Jaipur.Smt. M.Begum put the decree into execution. In compliance of warrant of possession issued by the executing court, the Court Ameen went at the spot and found that Ram Kishore, was in the possession of the shop in dispute and was running his grocery shop in the name and style of M/s Mangal Kirana and General Store. The warrant of possession could not be executed as Ram Kishore resisted it. Court Ameen referred the warrant with his report and sought police help. (3) On the request of Smt. M.Begum, the decree holder, executing court ordered to arrange police help for delivery of possession. Ram Kishore therefore, moved an application on 25.2.94 under section 151 CPC, before the executing court, stating therein that since he had an independent title in the shop,he was not bound by the decree and the warrant could not have been executed against him. Smt. M.Begum filed reply to the application on 21.3.94 and prayed for rejection of the said application on the ground that Ram Kishore being sub tenant, was bound by the decree. In support of the reply Smt. M.Begum filed an affidavit on 5. 8.1994. (4) On 2.9.94 Ram Kishore moved another application and, prayed that reply dated 21.3.94 and affidavit dated 5.8.94 filed by Smt. M. Begum may be treated as application under order 21 Rule 97 CPC., and the matter be investigated and adjudicated according to law. (5) Vide order dated 12.9.94 the executing court rejected the application of Ram Kishore and directed that warrant of possession be executed with the help of police. This order has been assailed by Ram Kishore in Revision No. 1149 of 1994 on the ground that applications were rejected without adjudicating the claim to resistance. (6) Ram Kishore also instituted civil suit seeking declaration and injunction in the court of the District Judge Jaipur City, Jaipur along with an application under Order 39 Rules 1 and 2 CPC., which lateron transferred to the court of Additional District Judge No. 3 Jaipur City . The application was allowed vide order dated 31. (6) Ram Kishore also instituted civil suit seeking declaration and injunction in the court of the District Judge Jaipur City, Jaipur along with an application under Order 39 Rules 1 and 2 CPC., which lateron transferred to the court of Additional District Judge No. 3 Jaipur City . The application was allowed vide order dated 31. 10.1994 and M. Begum was restrained from dispossessing Ram Kishore from the shop in dispute without due process of law and to maintain status quo., M.Begum has assailed this order in Civil Misc. Appeal No. 56 of 1995 on the ground that the impugned order is violative of section 41(b) of the Specific Relief Act. The said order was perversed and without jurisdiction and it had over-looked the order of the High Court passedin Civil Revision No. 467/93 on 25.1.1994. (7) I have given my anxious consideration to the arguments advanced before me by the learned counsel for the parties and carefully perused the impugned orders. (8) In Nooruddin vs. Dr. K.L. Anand (1), the Supreme Court had occasion to deal with such a situation. The question before the Apex Court was as to whether the executing court was right in dismissing the application on the ground that the dispute was adjudicated in the writ proceedings referred to earlier ? It was observed by the Apex Court that when the appellant claimed independent right, title and interest resisted the execution, the decree holder or the appellant should make an application under Order 21 Rule 97 CPC and the court in that event, is enjoined to adjudicate the claim and record a finding allowing or rejecting the claim . (9) In a recent judgment ``Babulal Vs. Raj Kumar and others (2) the Supreme Court has observed thus : ``Where in execution of a decree for specific performance of sale deed of property the objector who was not party to the decree filed an objection on the ground that he could not be dispossessed, the order of the executing court overruling the objection holding that since he was not dispossessed, his application under Order 21 Rule 97 CPC was not maintainable, was illegal. Dispossession of the objector from the property in execution is not a condition for decling to entertain the application. Dispossession of the objector from the property in execution is not a condition for decling to entertain the application. An adjudication is required to be conducted under Order 21 Rule 98 CPC before removal of the obstruction caused by the objector and a finding is required to be recorded in this behalf. (10) In the case before me, admittedly, Ram Kishore was not a party to the decree and before the executing court he moved an application raising objections that the decree could not have been executed against him. The executing court dismissed the application on the ground that since he was not dispossessed from the property the executing court could not have interfered in any manner. It was also observed that the reply filed by the decree holder could not have been treated as an application under Order 21 Rule 97 CPC. (11)The executing court was enjoined to adjudicate the claim or the objection or the claim to resistance put forth by Ram Kishore. The application submitted by him under the provisions of section 151 CPC could have been treated as an application under Order 21 Rule 97.The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be executed 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 complete Code in itself. Therefore the executing court is required to determine the question, when the objector had objected to the execution of the decree. (12) I am of the view that civil suit instituted by Ramkishore against M.Begum was not maintainable in view of the provisions contained in Order 21 Rule 101CPC which provides that all questions (including question relating to right, title or interest in the property ) arising between the parties to a proceeding on an applica- tion under Rule 97 or 99 or their representatives and relevant to the adjudication of the application and not by a separate suit and for this purpose, the court shall not withstanding anything to the contrary contained in any other law for the time being in fore, be deemed to have jurisdiction to decide such questions. (13) The order dated 12.9.94 passed by the Additional District Judge No. 7 Jaipur City in execution case No. 21/92 suffer from grave jurisdictional error. The order under Civil Misc. Appeal, dated 31.10.94 also suffers from illegality as no temporary injunction could have been issued as the suit itself was not maintainable. (14) In the result, I allow the revision as well as the appeal and set aside the impugned orders. The matter is remitted to the executing court to adjudicate the questions raised by objector Ram Kishore in accordance with law treating his application under the provisions of Order 21 Rule 97 CPC.Till the decision of the application objector Ram Kishore shall not be dispossessed from the shop in dis- pute. The record of the case be returned forthwith and parties are directed to appear before the executing court on 13.12.96. No. costs.