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1996 DIGILAW 1435 (RAJ)

Ram Narayan v. Santosh Kumari

1996-12-18

SHIV KUMAR SHARMA

body1996
Honble SHARMA, J. – Whether the objector, who was not a party to the decree, can file objections before the executing court under the provisions contained in Order 21 Rule 97 CPC or can seek relief by filing a substantive Civil Suit, is a crucial legal question which arises for consideration in the present appeal. (2). This question emerges in the following circumstances :– (i) The appellant Ram Narain was indisputably not a party to Suit No. 142/77. However, when the decree in that suit was sought to be executed, the appellant moved an application under Order 21 Rule 97 of the Code of Civil Procedure but that application was rejected by the executing court on 4.7.1994 and a direction was issued that he could file a civil suit. Thereupon the appellant instituted a substantive suit No. 50/94 for protecting his possession with regard to property in question. In that suit he took out an application for interim relief under Order 39 Rules 1 and 2 read with section 151 CPC which was dismissed by the learned Additional District Judge No. 1 Jaipur City vide order dated 17.10.1994. (ii) The appellant preferred an appeal against the order under the provision of Order 43 Rule 1 CPC. This Court (Honble M.P. Singh, J.) dismissed the appeal and passed following order on 23.1.1994. ``After hearing the learned counsel for the parties, I am of the view that the impugned order does not suffer from any illegality. The appeal is hereby dismissed. However, it is open to the appellant in case he so desires to file an application under Order 22 Rule 99 of Civil Procedure Code. (iii) The Honble Supreme Court in Civil Appeal No. 5385/1995 deci- ded on 3.5.1995, set aside the aforesaid order and remitted the matter to this court for fresh consideration on merits. (iv) While deciding the Civil Appeal the Honble Supreme Court observed thus :– ``The learned Single Judge after hearing counsel observed that the impugned order did not suffer from any illegality and dismissed the appeal but at the same time observed that it was open to the appellant, in case he so desired, to file an application under Order 21 Rule 99 of the Civil Procedure Code. It is difficult to comprehend from the said order whether the learned Single Judge was of the opinion that the substantive suit filed by the appellant was not maintainable in view of section 47 of the Code of Civil Procedure. If that was so, both the order of the Additional District Judge on merits as well as the order of the High Court holding that it did not suffer from illegality would have to be effaced and the original order of the Executing Co- urt rejecting the application under Order 21 Rule 97, CPC, would have to be revived if the latter part of the order of the learned Single Judge is to make any sense. In the circumstances, we are of the opinion that the learned Single Judge ought to have applied his mind to the question whether the substantive suit was maintainable, notwithstan- ding the Executing Courts order in the application under Order 21 Rule 97 CPC, and if the court was of the opinion that the substantive suit was not maintainable, the court should have revived the application against the order wherein no party appeared to have filed any proceedings in the higher court and an appropriate order should have been made to ensure that the plaintiff is not rendered without a remedy altogether. In the circumstances, we think that the order of the High Court cannot be allowed to stand, more so because once the High Court affirms the order made by the Additional District Judge on merits the appellant would hardly have room to stand before the Executing Court even if he applies afresh or is application under Order 21 Rule 97 CPC, is revived. We, therefore, think that in the circumstances the proper course is to set aside the order of the High Court and remit the matter to the High Court for a fresh consideration on merits in the light of the above. If the High Court decides to pro- ceed on the premises that the suit is maintainable it should dispose of the appeal on merits by a reasoned order. Till the High Court decides the matter status quo must be maintained. (3). Before assessing the merits of the case in hand, it is necessary to advert to the relevant statutory provisions. (4). Till the High Court decides the matter status quo must be maintained. (3). Before assessing the merits of the case in hand, it is necessary to advert to the relevant statutory provisions. (4). Order 21 Rule 97 of the Civil Procedure provides that where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in executing of decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. The Court shall proceed to adjudi- cate upon the application in accordance with he provisions contained in Order 21 Rule 101. (5). Order 21 Rule 101 CPC provides that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceedings on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, shall be determinedby the Court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. (6). The scope of proceedings under Order 21 Rule 97 read with Order 21 Rule 101 has been widened so as to include all questions arising between the parties and relevant to the adjudication of the application including question as to title of such parties in the property. These questions would include all those questions which could have properly been raised in suits under the earlier Rule 103 of Order 21. Before 1976, the procedure was that the matter would be disposed of in a sum- mary manner, and decree holder was entitled to take recourse to summary remedy or to file regular suit and the right of suit was not being taken away even if the application under order 21 rule 97 had not been filed but after the amendment since application filed under Order 21 has to be disposed of as a regular suit the aggrieved party cannot again file another suit. The Court is required to hold a full-fledged en- quiry and order passed there under would be treated as decree. (7). The Court is required to hold a full-fledged en- quiry and order passed there under would be treated as decree. (7). In Bhanwar Lal vs. Satyanarayan(1) Honble Supreme Court had held that even an application filed under Order 21 Rule 35(3) or one file under section 47 would be treated as an application under Order 21 Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the application from the property in execution is not a condition for declining to entertain the application. Two reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101 and 102 and enjoin conduct of regular adjudication, finding recorded thereon would be a decree and bind the parties. (8). In Babulal vs. Raj Kumar & Ors(2), has held thus :– ``It would, therefore, be clear that 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 CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Co- de, 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 dec- ree. Thus, the procedure prescribed is a complete 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. (9). Thus, the procedure prescribed is a complete 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. (9). Applying the ratio of Babu Lals case (supra) in the facts of the case in hand, it is evident that the appellant had rightly filed an application under Order 21 Rule 97 CPC but the executing Court committed illegality in rejecting the application. In view of the directions issued by the executing Court vide order dated 4.7.1994 the appellant had to file a substantive suit which was not maintainable in view of the provisions contained in under Order 21 Rule 101 CPC. (10). Upshot of the above discussion is that the appellant can file an application under Order 21 Rule 97 CPC before the executing Court raising objections for protecting his possession with regard to property in question. The substantive suit filed by the appellant is not maintainable in view of the provisions contained in Or- der 21 Rule 101 CPC. (11). Consequently, I dispose of the Civil Misc. Appeal and direct as under :– (i) The appellant can file fresh application before the executing Court under the provisions of Order 21 Rule 97 CPC raising all the objections for protecting his possession with regard to the property in question. Two months time is granted to the appellant for filing the said application and the executing Court shall adjudicate the application without being influenced by the orders passed at the various stages of the litigation. (ii) Till the executing Court decides the application, the parties shall maintain status quo. (iii) As the substantive suit is not maintainable in view of the provisions contained in Order 21, 191 CPC, the order dated 17.10.1994 passed by the learned Additional Sessions Judge No. 2 Jaipur City, Jaipur, stands dismissed. (iv) No order as to costs.