Mohd. Salauddin v. Anil Kumar Sinha — 1999 DIGILAW 1031 (PAT)

Judgment P.K. Deb, J. This revision petition has been preferred by the above named petitioner against the order dated 1.7.1998 passed by the 2nd Munsif, Buxar, in Misc. case no.5 of 1998 arising out of the execution case no. 16 of 1988 whereby and whereunder the application filed by the petitioner under Order 21 Rule 97 of the Code of Civil Procedure has been rejected as not maintainable. 2. The opposite parties had filed execution case no. 16 of 1988 to execute the decree passed in Title Suit No. 132 of 1982. The petitioner filed a petition under Order 21 Rule 97 of the Code of Civil Procedure in the aforesaid execution case contending, inter alia, that the decree is not binding on him and that by execution of the decree his possession cannot be interfered. The said application was registered as Misc. Case No. 5 of 1998. 3. There is long history behind the above application filed by the petitioner. In the year 1932 there was a partition suit being Title Suit No. 30 of 1932 in the court of Subordinate Judge at Arrah. In the partition suit Bibi Sogra got 3/8th share in plot no.1115 in Khata no. 168/121 measuring an area of 2460 sq.ft. Another co-sharer of the suit property, namely, Md. Akhtar at the time of partition left the country and settled in Pakistan but afterwards returned in the year 1982 and sold his share having an area of 187 sq.ft. in plot no. 1115 to one late Kedar Lal on 13.11.1982 by registered sale deed. But he sold the property to late Kedar Lal which was practically in the alloted share of Bibi Sogra. 4. Bibi Sogra died leaving behind her son Md. Atique Ahmad and daughter Sabiha Khatoon as her legal heirs and according to the petitioner, those two heirs came over in possession of the allotted share of Bibi Sogra. The petitioner purchased 12 dhoors 16 dhurkies of land including a house in plot no. 1115 under the said khata from the son and daughter of late Bibi Sogra by two sale deeds dated 24.10.1996 and has been delivered of possession. According to the petitioner, although the heirs of Bibi Sogra got the lands in plot no. 1115 as per the declaration in Title Suit no. 1115 under the said khata from the son and daughter of late Bibi Sogra by two sale deeds dated 24.10.1996 and has been delivered of possession. According to the petitioner, although the heirs of Bibi Sogra got the lands in plot no. 1115 as per the declaration in Title Suit no. 30 of 1932 but without making them parties Title Suit no.132 of 1982 was filed by the decree-holder-opposite parties. That the said decree was not binding on the heirs of Bibi Sogra vis-a-vis the petitioner who is the purchaser. 5. According to the petitioner, his vendors were in possession of the suit property and after purchase the petitioner came in possession and as such, without an enquiry being made and adjudication being made regarding the right, title and interest of the petitioner and his vendors the said execution case cannot proceed to take over possession over the decreetal land in Title Suit no. 132/82. With these averments the application was filed under Order 21 Rule 97 of the Code of Civil Procedure. On this application the Misc. case was registered and show cause being issued the opposite party-decree holder filed objection. According to the opposite party, the judgment-debtor in Title Suit no. 132 of 1982 fought the suit tooth and nail upto the Hon'ble the Supreme Court and decree was confirmed in favour of the decree-holder and as such in the execution proceeding delivery of possession was issued which was returned unexecuted by then Nazir. According to the decree-holder, judgment-debtor had set up the petitioner to put barrier in execution of the decree. 6. It was further mentioned that Md. Atique Ahmad and Sabiha Khatoon the heirs of Bibi Sogra had already filed Title Suit no. 220 of 1996 challenging the decree passed in Title Suit no. 132 of 1982 and a prayer for temporary injunction was made in that suit regarding restraint in execution of the decree but the said prayer of injunction, after hearing the parties, had been rejected by the Subordinate Judge, Buxar, and the appeal was also dismissed by this High Court and that injunction matter was fought up to the Supreme Court but the heirs of Bibi Sogra that is the plaintiffs of Title Suit no. 220 of 1996 have lost. The petitioner Md. Salauddin being a claimant through purchase pendente lite from Mr. 220 of 1996 have lost. The petitioner Md. Salauddin being a claimant through purchase pendente lite from Mr. Atique Ahmad cannot have any better title than that of his vendors who could not be able to get injunction regarding restraint in the execution proceeding and as such the claimant-petitioner cannot be an obstructionist by filing an application under Order 21 Rule 97 of the Code of Civil Procedure. After hearing both the parties learned court below came to the finding after discussing all materials as stated above that the present petition under Order 21 Rule 97 of the Code of Civil Procedure is not maintainable. Hence the present revision petition. 7. The two most vital points are involved in this revision petition regarding the maintainability of application under Order 21 Rule 97 of the Code of Civil Procedure. (1) The petitioner being a stranger is not competent enough to come up with an application under Order 21 Rule 97 of the Code of Civil Procedure when there was no obstruction or resistance put by him in the delivery of possession in execution of the decree. (2) That the vendors of claimant-petitioner through whom he derived the title over the decreetal land have already filed a suit against the decree-holder and the prayer for injunction during the pendency of the suit regarding the proceeding of the execution had been rejected then the petitioner cannot have any scope to put obstacle or claim for enquiry as contemplated under Order 21 Rule 97 to 104 of the Code of Civil Procedure. 8. Mr. Sukumar Sinha, learned counsel appearing for and on behalf of the petitioner has submitted referring to the judgment of the Apex Court as reported in 1997 (SC) 856 {Brahmadeo Choudhary Vs. Rishikesh Prasad Jaiswal and another} and the subsequent judgment of the Apex Court on this point and also the Division Bench judgment of this Court as reported in 1999 (Patna) 130 : 1999 (1) PLJR 19 {Prabhat Kumar Sinha Vs. Nirmala Sinha and another} to the effect that the petitioner being a stranger can be competent enough to file an application under Order 21 Rule 97 of .the Code of Civil Procedure when his right, title and interest is involved in the decreetal property. Nirmala Sinha and another} to the effect that the petitioner being a stranger can be competent enough to file an application under Order 21 Rule 97 of .the Code of Civil Procedure when his right, title and interest is involved in the decreetal property. As per the provision of Order 21 Rule 97 of the Code of Civil Procedure• when obstruction and resistance being put in execution of the decree regarding delivery of possession of immovable property then the decree-holder has got the right to file an application complaining of such resistance or obstruction and on such application being filed by the decree-holder the executing court shall proceed to adjudicate upon the application. The words any person as appearing under Rule 97 have been interpreted by the Apex Court for the first time in Brahmadeo Choaudhary's case and arrived at the conclusion that if a resistance is put by a third party and the same has been brought to the notice of the executing court on a report being made by the Nazir then the court should not allow the decree-holder to proceed with the delivery of possession through police help under Order 21 Rule 35 of the Code of Civil Procedure rather any application filed by the resistor or obstructionist should be adjudicated through enquiry. Thus the scope of Rule 97 has been broadened by interpretation by the Apex Court for entertaining an application by the stranger-resistant and not only to the limited scope of application by the decree-holder with the very intention that a decree holder should not take advantage of police help to oust an obstructionist who is really in possession over the decreetal land although he is not a judgment-debtor. Even the plausible claim through the judgment debtor had also been included within the scope of stranger resistant or obstructionist. After the amendment of the Code of Civil Procedure in the year 1976 the provisions of Order 21 Rule 97 to 104 had formed a complete Code in itself. When the enquiry on a stranger's application should be decided not only regarding possession but about the title and interest also and the order is made appealable giving the scope of enquiry in the form of a Title Suit. It is the contention of Mr. When the enquiry on a stranger's application should be decided not only regarding possession but about the title and interest also and the order is made appealable giving the scope of enquiry in the form of a Title Suit. It is the contention of Mr. Sinha that after that judgment of the Apex Court also confirmed by subsequent judgment of the Supreme Court and that of the Division Bench judgment of this Court as referred above there remains no scope to hold that the petitioner's application is not maintainable being a stranger. It was the bounden duty of the executing court to decide the matter on merit after proper adjudication and the same cannot be rejected to be not maintainable alone. 9. On this submission senior counsel appearing for and on behalf of the opposite parties has submitted that although the scope of Rule 97 has been broadened by the judgment of the Apex Court but the basic requirement for filing of an application remains as it is as quoted in the provisions itself. According to him, the cause of action for an application under Order 21 Rule 97 arises only when there is an active resistance/obstruction to the delivery of possession in execution of the decree. When there is a resistance then and then only the stranger can file an application if the same is not brought by the decree-holder for obvious purpose. In the present case it has been submitted that there is no obstruction or resistance from the side of the claimant-petitioner. The Nazir's report had not been brought to the notice of this court wherein it was mentioned that the Nazir could not deliver possession as in the site neither the decree-holder nor his representative was found present to take delivery of possession. There is not an iota of mention in the Nazir's report that there was obstruction and resistance by any party not to speak of the petitioner. In all the cases of the Apex Court and that of the Division Bench judgment of this Court there was active resistance and obstruction and then it was held that the application of the obstructionists or the resistors can be accepted for the purpose of adjudication under Order 21 Rule 97 of the Code of Civil Procedure. Mr. In all the cases of the Apex Court and that of the Division Bench judgment of this Court there was active resistance and obstruction and then it was held that the application of the obstructionists or the resistors can be accepted for the purpose of adjudication under Order 21 Rule 97 of the Code of Civil Procedure. Mr. Sinha by referring to the placitum of the Division Bench judgment submitted that the active resistance is not necessary for the purpose of entertaining of application under Order 21 rule 97 of the Code of Civil Procedure rather if the executing court is once apprised of the fact that there was scope of resistance and obstruction then also the same application of the stranger is maintainable. In the placitum portion of the Division Bench judgment mention has been made in the following manner : "Once a third party apprised the executing court and gives a caveat to the court and the decree-holder that he is not bound by the decree and the decree in question cannot be executed against him there was/is no other option either for the execution court or for the decree-holder than to have recourse to the procedure prescribed and Order XXI for adjudicating the claim of the obstructionist/resistor in accordance with law." Thus it is the submission of Mr. Sinha that when by the application the claimant-petitioner had brought to the notice that the decree was not binding on him then the same is sufficient for the purpose of entertaining a petition under Order 21 Rule 97 of the Code of Civil Procedure. I am not convinced with the submission of Mr. Sinha. If there is no obstruction or resistance then there remains no cause of action for entertaining an application either by the decree-holder or by the third party. If an application filed by a third party to the effect that he is bonafidely claiming the decreetal land is entertained then there would be a flood gate for entertaining a petition by any third party being set up by the judgment-debtor to frustrate the execution of a lawful decree and the decree-holder would be disentitled to get the fruit of long drawn fought decree. So the basic requirement for entertaining a petition under Order 21 Rule 97 of the Code of Civil Procedure made either by the decree-holder or by a third requires that there must be an obstruction to the delivery of possession of the decreetal land by the third party. There is no scope to broaden the scope of Rule 97 with the apprehension of obstruction as contemplat8d by Mr. Sinha by referring to the placitum portion of the Division Bench judgment. Practically, in all the judgments of the Apex Court and that of the Division Bench judgment there was physical and factual obstruction by the third party and then the petition filed by the third party/stranger was held to be maintainable even if it was not filed as per the provisions of Rule 97 by the decree-holder alone. Thus, in the present case, I am constraint to hold that the application of the petitioner lacks from the basic requirement of factual/physical obstruction by the decree-holder. The statement made in the Division Bench judgment can be construed only as per incurium. Thus the first point goes against the petitioner. 10. When the first point goes against the petitioner then the discussion of the second point becomes redundant. When that point has already been argued at length then I should also discuss the second point too in the present circumstance of the case. The admitted position remains that the claimant-vendor had already filed a suit challenging the decree in question and when the prayer for injunction to put restraint in the execution proceeding has been lost upto the Supreme Court then the plaintiffs of that suit i.e. the vendor-claimant-petitioner had sold away the land to the claimant and he has come up as a resistor/obstructionist as contemplated under Order 21 Rule 97 of the Code of Civil Procedure. In the Division Bench judgment the circumstances are similar. In that case also there was an earlier suit by the obstructionists and prayer for injunction had been lost in the court of law and then the petition was filed under Order 21 Rule 97 of the Code of Civil Procedure and the same was held to be maintainable by referring to the Brahmadeo Choudhary's judgment (supra) and other judgments of different High Courts. Now in these circumstances, one point arises as to whether two proceedings on the same subject-matter could be allowed to run parallelly in two different courts giving a scope of contrary findings. I have very thoroughly scrutinised the judgment of the Division Bench of this Court. This point of parallel proceedings had not at all been considered or argued before the Division Bench. Mr. Sukumar Sinha, advocate, has conceded that the said legal fallacy has not been construed up-till-now either by this Court or by any other court as there is no reporting to that effect. But he has referred to the commentaries of Sarkar's Civil Procedure Code under Rule 104 of Order 97 of the Code of Civil Procedure. According to him, the parallel proceedings are not barred but the findings in the regular suit shall definitely be prevailing upon the findings on adjudication in the enquiry proceedings under Order 21 Rule 97 to 104 of the Code of Civil Procedure. It has already been discussed in the earlier paragraphs that by amendment of 1976 the adjudication in the enquiry proceedings under Order 21 Rules 97/98/99 have been broadened giving the semblance of a regular suit to the extent of decision with regard to the title and interest and not only of possession alone and that the said findings have been made appellable. But still then the adjudication in a regular suit stands on much higher footing than that of an enquiry proceeding under Order 21 Rules 97 to 104 of the Code of Civil Procedure. In that case definitely the findings of the regular suit must prevail than the findings of the enquiry proceedings. If a regular suit is pending prior to the filing of the application under Order 21 Rule 97 or Rule 99 of the Code of Civil Procedure then such proceeding must be stayed till the decision is arrived at in the regular suit and in that way the regular suit must have the scope of injunction in appropriate circumstantial cases. Even if there is no injunction then also the decision would be arrived at in the regular suit would be binding on the parties and there may be redielivery of possession/restoration as contemplated under Section 144 of the Code of Civil Procedure. Even if there is no injunction then also the decision would be arrived at in the regular suit would be binding on the parties and there may be redielivery of possession/restoration as contemplated under Section 144 of the Code of Civil Procedure. Even if the proceeding under Rule 97 or Rule 99 is construed to be no longer a summary proceeding as it was before the amendment as the executing court has been given full jurisdiction to determine all questions relating to right, title and interest between the parties then also the adjudication in a regular suit stands on a much higher decree than that of the enquiry proceeding. In the present case the vendor of the claimant-petitioner had already brought the suit before the Sub-Judge and the same is pending although injunction had not been granted when fought upto the Apex Court but the fact remains that the suit is pending regarding adjudication Of right, title and interest over the decreetal land in between the vendors of the claimant and the decree-holder. When such suit is pending even if the claimant-petitioner's petition under Order 21 Rule 97 of the Code of Civil Procedure is held to be maintainable (although it has already been held while discussing the first point that the same is not maintainable) then also such enquiry proceedings on the basis of an application under Order 21 Rule 97 of the Code of Civil Procedure should not be allowed to proceed further to anomaly of contradictory findings by two courts as the suit is pending before another court and the enquiry proceeding is running before another court. The discussion in the second point also goes against the petitioner. 11. In the result, the revision petition is rejected having no force in it. But in the circumstances of the case no order as to costs. 12. Stay order passed earlier is hereby vacated.