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2000 DIGILAW 61 (HP)

HARJINDER KAUR ALIAS KAMAL PREET v. K. R. AGGARWAL

2000-03-30

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The abovenoted two revision petitions arising out of the common order dated 23.12.1999 of the learned Sub Judge 1st Class, Kasauli at Solan, exercising the powers of Rent Controller, under the Himachal Pradesh Urban Rent Control Act, 1987 [for short: The Act], are being disposed of together since the same involve common questions of law and facts. 2. The facts giving rise to the present petition briefly may be thus stated. Respondent No. 1, Shri K.R. Aggarwal, is the landlord and owner of House No. 61-61-A, known as "The Popular" Cart Road, Kasauli. He filed a petition under Section 14 of the Act for the ejectment of the respondent No. 2, Smt. Charanjit Kaur from the 1st floor of the said building, hereinafter referred to as tenanted premises on the ground of bona fide requirement for himself and members of his family as a specified landlord. Such petition was dismissed by the learned Rent Controller, Solan, on 9.9.1996. Respondent No. 1, the landlord, assailed the order dated 9.9.1996, before this court byway of a revision petition, being C.R. No. 335 of 1996. Such petition was allowed by this court on 17.11.1998 and an order of ejectment was passed in favour of respondent No. 1 and against respondent No. 2. The special leave petition preferred by the respondent No. 2, before the Honble Supreme Court was dismised on 15.9.1999. 3. Respondent No. 1 took out execution proceedings before the learned Rent Controller for enforcement of the ejectment order dated 17.11.1998 against respondent No. 2. 4. The two sets of petitioners, claiming themselves to be the legal heirs of the original deceased tenant Shri Bhagwan Singh preferred objections under Order 21 Rules 97 and 101, read with Section 47 of the Code of Civil Procedure. 5. The petitioners in C.R. No. 30 of 2000 are the sons of deceased Bhagwan Singh, the original tenant of the tenanted premises. Respondent No. 2 is the widow of the said Bhagwan Singh. The petitioners have averred that their father Bhagwan Singh had died in the year 1990 and at the time of his death was being looked after by his two wives and children, who were residing with him. All such legal heirs had succeeded to the tenancy rights. They were not impleaded as parties to the ejectment petition filed by respondent No. 1 against respondent No. 2. All such legal heirs had succeeded to the tenancy rights. They were not impleaded as parties to the ejectment petition filed by respondent No. 1 against respondent No. 2. Therefore, they are not bound by the ejectment order dated 17.11.1998 and as such not liable to be ejected from the tenanted premises in execution of such ejectment order. 6. Petitioner in C.R. No. 408 of 1999 is the daughter-in-law of the deceased Bhagwan Singh. She has also pleaded to have inherited the tenancy from her deceased father-in-law and has claimed that she was residing in the tenanted premises with the deceased Bhagwan Singh at the time of his death. 7. Both the objection petitions were resisted by respondent No. 1. It was pleaded that after the death of original tenant, Shri Bhagwan Singh, the tenancy rights qua the tenanted premises were inherited by respondent No. 2 (widow) who was living with the deceased. None of the petitioners was ordinarily residing with the deceased at the time of his death. 8. The learned Rent Controller on consideration of the material placed before him, vide the impugned order dated 23.12.1999, dismissed both the objection petitions preferred by the two sets of petitioners and proceeded to enforce the ejectment order dated 17.11.1998 by issuing the warrants of possession. 9. The learned counsel for respondent No. 1, at the very outset contended that the impugned order passed by the learned executing court is a "decree" and open to appeal. Therefore, the present revision petitions are not maintainable. In support of his contention, the learned counsel has referred to the provisions contained in Rule 103 of Order 21, Code of Civil Procedure, which read: "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 considerations as to an appeal or otherwise as if it were a decree." 10. At this stage, it would be necessary to deal with the provisions contained in Rules 97 to 103 of Order 21, Code of Civil Procedure, as amended by the Civil Procedure Code (Amendment) Act of 1976. Whenever there is resistance or obstruction to the delivery of possession in execution of a decree for possession by a party, the decree-holder or an auction-purchaser may complain such resistance or obstruction to the execution court by moving an application under Rule 97. Whenever there is resistance or obstruction to the delivery of possession in execution of a decree for possession by a party, the decree-holder or an auction-purchaser may complain such resistance or obstruction to the execution court by moving an application under Rule 97. Determination of such application is then to be made as provided for under Rule 98(1) after determination of the questions referred to in Rule 101. 11. Rule 99 provides that when any person other than the judgment-debtor is dispossessed of immovable property, either by the holder of the decree or an auction-purchaser, he may make an application to the court complaining of such dispossession. Determination of such application is provided for under Section 100 after determining the questions referred to in Rule 101. 12. In Smt Santilata Paul v. Nanda Kishore Mukherjee, AIR 1981 Calcutta 219, the decree-holders sought possession of the property involved therein. Resistance was offered. The decree-holders filed an application under Order 21, Rule 97, Code of Civil Procedure, complaining the resistance. Such application was allowed by the executing court. The resistor went up in revision before the High Court. A question arose whether the order passed by the execution court under Order 21, Rule 97, Code of Civil Procedure, was open to revision. 13. It was held that in view of the provisions contained in Rule 103, the order passed by the execution was appealable and no revision would lie. 14. To the similar effect, it has been held by a Division Bench of the High Court of Madhya Pradesh in Dattatray v. Mangal and another, AIR 1987 MP 82. 15. In Smt Tahera Sayeed v. M. Shanmugam and others, AIR 1987 A.P. 206, the following two questions came up for consideration:— (a) Whether a third party, not bound by the decree can approach the court to protect his independent right, title or interest before he is actually dispossessed from immovable property under Order 21, Rule 97, Code of Civil Procedure; and (b) Whether an order passed by the executing court disposing of the application made by such third party is appealable. Answering both the questions in the affirmative, it was held:— "Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthyf (1985) 1 Andh. LT 436, I held that the faith of the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as caveat to the decree-holder or purchaser or a person claiming through him that look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree, and the court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal........." 16. Dealing with the provisions contained in Rules 97 to 103 of Order 21, Code of Civil Procedure, the Honble Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, (1997) 3 SCC 694, has held:— "A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:— (1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35, then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If Such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1), CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. If Such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1), CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101." 17. In the light of the above settled law, the impugned order dated 23.12.1999 dismissing the objections of the petitioners under Order 21, Rule 97; Code of Civil Procedure being the one passed under Rule 98 or Rule 100 would be a decree within the meaning of Rule 103 and as such the same is not revisable. Only an appeal would lie against it. 18. Resultantly, the present revision petitions are dismissed, leaving the parties to bear their own costs. Petition dismissed.