V. K. RAMA SETTY v. A. GOPINATH — 1997 DIGILAW 491 (KAR)

( 1 ) THE sole question which requires to be considered by this Full Bench is, as to whether once a person, other than the judgment-debtor, is dispossessed of an immoveable property by the holder of a decree for possession of such properties, having made an application to the executing Court against such dispossession based on his right, title or interest therein, can file a separate suit as well for the said very relief despite the prohibition contained in Order XXI, Rule 101 of the Code of Civil Procedure. (in short the 'c. P. C. ')? ( 2 ) BEFORE entering into the controversy on the legal aspect let me first set out the bedrock of the settled facts. The petitioner in C. R. P. 3863 of 1991 is the owner of the double storied house property bearing No. 7, Thimmaraya Shetty Lane, Nagarathpet Cross, Bangalore-2. He had filed an eviction petition being H. R. C. 307/1982 under the provisions of the Karnataka Rent Control Act, 1961 (hereinafter the 'act') on the file of the Court of Small Causes, Bangalore in respect of the 1st floor of the said house against one Krishna Murthy being the tenant therein. In the said proceedings an order of eviction was passed on 20-3-1982. Accordingly, he filed Ex. Case No. 2203/82 and obtained delivery of possession of the said first floor on 13-8-1982. ( 3 ) THE claim laid by the respondent in the said C. R. P. 3863/91, namely V. K. Ramasetty, is that he had acquired the possession of the first floor of the house in question pursuant to an oral agreement of tenancy entered into by him with the petitioner-landlord. Accordingly, he filed an application on 18-8-1982 under Order 21, Rule 99 read with Section 144, C. P. C. in the said execution proceedings seeking restitution of possession claiming that he was in possession of the suit premises in his own right as a tenant and he being not a party to the eviction petition, his dispossession was illegal and impermissible. ( 4 ) CURIOUSLY, after filing the said application under Order 21, Rule 99 of the C. P. C. , he also filed an Original Suit No. 2956/82 in the Court of IInd Addl. ( 4 ) CURIOUSLY, after filing the said application under Order 21, Rule 99 of the C. P. C. , he also filed an Original Suit No. 2956/82 in the Court of IInd Addl. City Civil Judge, Bangalore for declaration that the order of eviction passed in H. R. C. 307/82 was null and void and not binding on him and therefore his dispossession pursuant to the said order was illegal. He also made consequential prayer for recovery of possession as also for permanent injunction against the landlord restraining him from disturbing his peaceful possession and enjoyment of the first floor of the said house. This suit came to be decreed by the learned City Civil Judge on 30-6-1990 wherein it was declared that he was a tenant in his own right in respect of the 1st floor as claimed by him and therefore was entitled for recovery of possession thereof. ( 5 ) PURSUANT to the said decree, the respondent filed Ex. Case No. 720 of 1990 on the file of the Civil Judge, wherein the landlord filed his objections stating that the premises cannot be redelivered pursuant to the decree passed in O. S. 2956/82 since it was inheriently without jurisdiction and therefore null, void and unenforceable. But the learned Civil Judge rejected the said objection and directed redelivery of the property under his order dt. 16-8-1991. The petitioner-owner being aggrieved by this order was preferred the present C. R. P. No. 3863/91. ( 6 ) SUBSEQUENT to passing of the said order, the Misc. Case 670/82 filed by the respondent under Order 21, Rule 99 of the Code was taken up and on an insistence by the respondent it was heard and rejected on merits by the learned Small Causes Judge on the basis of the evidence adduced in the said Miscellaneous case. The respondent being aggrieved by the said dismissal order has preferred C. R. P. 254/92. ( 7 ) WHEN the matter was taken up for hearing by the learned single Judge, as was obvious, one of the main contentions raised by the learned counsel for the landlord was regarding jurisdiction of the learned 2nd Addl. The respondent being aggrieved by the said dismissal order has preferred C. R. P. 254/92. ( 7 ) WHEN the matter was taken up for hearing by the learned single Judge, as was obvious, one of the main contentions raised by the learned counsel for the landlord was regarding jurisdiction of the learned 2nd Addl. City Civil Judge in entertaining O. S. 2956/82 particularly in view of the bar created by the Order 21, Rule 101 of the C. P. C. It was further contended that since according to the landlord the question pertains to complete lack of jurisdiction of the Court in entertaining the said suit and that the decree obtained therein is permissible to be resisted whenever and wherever it is sought to be relied upon for taking any benefit. On the other hand, the learned counsel for the respondent, by relying on the judgment of a Division Bench of this Court in the case of M/s. Paramound Industries v. C. M. Malliga, ILR (1991) Kant 254, contended that under the circumstances appearing in the case it was permissible on the part of the aggrieved party not only to file an application under Order 21, Rule 99 of the C. P. C. but it had an unrestricted right to avail the remedy of filing a separate suit for the said very purpose and therefore the objection relating to the jurisdiction of the Court, which passed the decree in the original suit is liable to be rejected. ( 8 ) THE relevant passage of the judgment of the Division Bench in the case of M/s. Paramound Industries (supra) on which the respondent placed reliance reads as under :-"it is open to the person in possession of an immoveable property in his own right and not through a judgment-debtor to resist execution and establish his right, title and interest to the immoveable property which is the subject-matter of the decree for possession or order for eviction. He need not wait until he is dispossessed in the execution of the decree for possession or order of eviction. In the event objections are filed by such a person, the executing Court shall have to decide the same in the same manner as a suit. He need not wait until he is dispossessed in the execution of the decree for possession or order of eviction. In the event objections are filed by such a person, the executing Court shall have to decide the same in the same manner as a suit. It is also open to him to file a suit for declaration of title and permanent injunction before the decree for possession or order of eviction is put into execution or to file a suit for possession on the basis of his title, if he fails to resist the execution or does not get an opportunity to resist execution. " ( 9 ) IT is the underlined observation in the above passage of the judgment of the Division Bench in the case of M/s. Paramound Industries (ILR (1991) Kant 254) (supra) which infact has lead to the present controversy. We have carefully examined the judgment of the Division Bench. In the said case, the following three questions had fallen for consideration before the Court- (i) Whether it is open to a person who is not made a party to an order of eviction or a decree for possession, to obstruct execution of such order of eviction or decree for possession by filing objections to the execution? (ii) If obstruction is offered by filing objections by such persons, even if no application is filed under Order 21, Rule 97 of the C. P. Code by the decree-holder to remove such obstruction, whether the executing Court can proceed to execute the decree without enquiring into the objections or removing the obstruction offered to the execution of a decree for possession or the order of eviction? (iii) Whether the only remedy available to a person resisting execution is to file a suit after the order of eviction or decree for possession is executed and he is dispossessed?it was in the context of the said questions that the Division Bench examined the relevant Rules under Order XXI of C. P. C. and the case laws on the points and ultimately recorded their conclusion in the paragraph noticed above. While answering the questions before them, the Division Bench also observed to the extent that a person in possession of immoveable property claiming to be so in his own right and not being a judgment-debtor, on being dispossessed can file a suit for possession, cannot be said to be holding that dispite filing of an application under Rule 99 of Order XXI such a person can still file a suit for that very relief. ( 10 ) WE are of the view that keeping in view the language employed in Order XXI, Rule 99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under Rule 99 the use of word "may" gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. This explains the observation of the Division Bench. The Division Bench had not pronounced that even if an aggrieved person prefers an application under Rule 99, then still he will have a right to file a separate suit as well. We are clearly of the opinion that drawing of any such inference is a misreading of the judgment of the Division Bench since such an inference will be in the death of Rule 101 of Order 21, C. P. C. and therefore the same cannot be held to be a good law, if at all it was intended to be so laid down. We do not find it necessary to record any detailed reasoning of our own on the said aspect since in our opinion, the issue is now finally concluded by the judgment of the Supreme Court in the case of Noorduddin v. Dr. K. L. Anand, (1995) 1 SCC 242 : (1994 AIR SCW 5093 ). We do not find it necessary to record any detailed reasoning of our own on the said aspect since in our opinion, the issue is now finally concluded by the judgment of the Supreme Court in the case of Noorduddin v. Dr. K. L. Anand, (1995) 1 SCC 242 : (1994 AIR SCW 5093 ). ( 11 ) THE relevant Rules of Order 21, as amended/substituted by Act 104/76 (w. e. f. 1-2-1977) read as under :-Rule 97: Resistance or obstruction to possession of immovable property:- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a 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. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rule 98: Orders after adjudication.- (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2) :- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. Rule 99 : Dispossession by decree-holder or purchaser:- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rule 100 : Order to be passed upon application-- complaining of the questions referred to in Rule 101, the Court shall, in accordance with such determination,- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. Rule 101 : Questions to be determined.-ALL questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by 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. Rule 103 : Orders to be treated as decrees. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as is if it were a decree. Rule 104 : Order under Rule 101 or Rule 103 to be subject to the result of pending suit 1 Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property. " ( 12 ) ANALYSING the import of the said provisions, in Noorduddin's case (1994 AIR SCW 5093) (supra), the Supreme Court in paras 8 and 9 has held that :-"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. 9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the Court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the substenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and Courts. The faith of the people in the efficacy of law is the saviour and succour for the substenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and Courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice. The Court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution. " ( 13 ) IN the present case, the respondent had filed application under Order 21, Rule 99 of the C. P. C. on 18-8-1982. Once such an application is filed it is mandatory on the part of the Court as provided under sub-rule (2) of Rule 99, to dispose of the same in accordance with the provisions contained in Rules 100 and 101 of Order 21 of the C. P. C. as noticed above. It is further of importance to note that once an application is filed by the aggrieved person under Rule 97 or 99 then Rule 101 in an unabmiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and interest in the property. ( 14 ) IN this view of the statutory bar, the original suit filed by the respondent as O. S. 2956/92 subsequent to filing of application under Order 21, Rule 99 of the C. P. C. was clearly not maintainable and therefore the decree passed therein was null and void. ( 15 ) NOW let the two revision petitions be placed before the Division Bench of this Court for final disposal on merits subject to the law laid down as above. Order accordingly. ( 15 ) NOW let the two revision petitions be placed before the Division Bench of this Court for final disposal on merits subject to the law laid down as above. Order accordingly. --- *** --- .