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2001 DIGILAW 466 (ORI)

MAHINDER SINGH v. PRATIMA KUMARI MOHAPATRA

2001-10-18

A.S.NAIDU

body2001
A. S. NAIDU, J. ( 1 ) THE present writ application under articles 226 and 227 of the Constitution of India is filed by a third party intervenor in an Execution case challenging the order/judgment dated September 21, 2001 passed by the learned Additional Sessions judge. Fast Track Court, Cuttack, in Civil Revision No. 88 of 1999. The said civil revision arose out of an order dated October 13, 1999 passed by the learned Civil Judge (Junior Division), Cuttack in Execution Case No. 11 of 1996. ( 2 ) BEREFT of all the unnecessary details, the brief facts giving rise to the case are as follows : one Mahavir Prasad Halan, claiming to be the landlord filed HRC Case No. 19 of 1970 under Section 7 of the Orissa House Rent control Act, 1967 in the Court of the House rent Controller, Cuttack against the tenant one laxman Patnaik praying for his eviction from the premises appertaining to Holding No. 539 situated in Ward No. 25 of Cuttack Municipality. The learned House Rent Controller by his judgment dated May 11, 1976 categorically arrived at a conclusion that the tenant was a willful defaulter and has sublet a portion of the house to a sub-lessee Madan Singh and had conducted himself against the interest of the landlord by subsequently denying his title to a part of the land premises and that the landlord needed the premises for his bona fide personal occupational use. The said order of eviction was challenged in HRC Appeal No. 18 of 1976. By judgment dated January 3, 1977 the appellate authority confirmed the finding of the learned House Rent Controller and dismissed the appeal. ( 3 ) THE tenant thereafter filed O. J. C. No. 36 of 1977 in this Court, vide Judgment dated january 15,1979, this Court set-aside the judgment passed in appeal and remitted back the matter to the appellate authority with a direction for fresh disposal of the appeal after giving opportunity to the parties to lead evidence only with regard to the matter of subletting and after making local inspection for appreciating the evidence on record. ( 4 ) IN pursuance of the direction issued by this Court, the parties were given opportunity to lead further evidence in the matter of subletting and local inspection of the premises was conducted by the appellate authority on june 21, 1979 and the memorandum prepared was placed in the record. The appellate authority by judgment dated August 7, 1979 allowed the appeal the set-aside the order of eviction passed by the learned House Rent controller. ( 5 ) THEREAFTER, the matter was once again brought before this Court in O. J. C. No. 1537 of 1979 wherein the landlord challenged the order passed by the appellate authority. The said writ application was disposed of by judgment dated July 27, 1989. This Court set-aside the judgment passed by the appellate authority and confirmed the order of eviction. A direction was given to the tenant to deliver vacant possession of the premises to the landlord. The order passed in the said writ application was assailed in the Supreme Court in civil Appeal No. 2880 of 1991, which was ultimately dismissed as withdrawn on March 27, 1995, thereby confirming the order of eviction. ( 6 ) WHILE the matter stood thus, the Original landlord (decree holder) alienated the properties in favour of opposite party No. 1 by means of a registered sale deed. Thus, the present opposite party No. 1 became the absolute owner having right, title and interest over the disputed premises. Opposite party No. 1 in consonance with the provisions of Order 21, Rule 16 of the Code of Civil Procedure, hereinafter called as "the Code", initiated Execution Case No. 11 of 1998 in the Court of the Civil Judge (Junior Division) 1st Court. Cuttack to execute the order of eviction passed by the learned House Rent Controller which was confirmed by the Supreme Court. The executing Court issued a writ of delivery of possession on January 8, 1991. When the process server went for execution of writ of delivery of possession, the present petitioner resisted the same, whereupon the process server returned the writ with an endorsement that the writ cannot be executed without police help as there was apprehension of breach of peace. The executing Court issued a writ of delivery of possession on January 8, 1991. When the process server went for execution of writ of delivery of possession, the present petitioner resisted the same, whereupon the process server returned the writ with an endorsement that the writ cannot be executed without police help as there was apprehension of breach of peace. The learned executing Court on February 4, 1999 passed order directing the Superintendent of Police, Cuttack to provide police help at the time of execution of writ of delivery of possession and directed the bailiff of the Court to break-upon the lock if it is found necessary. Thereafter, the petitioner filed a petition, on February 19, 1999 before the district Judge. Cuttack. The Revisional Court after hearing the parties dismissed the Civil revision No. 44 of 1999 with the following observation. "it is necessary to observe here that the learned Appellate authority who disposed of the H. R. C. Appeal vide judgment dated 7. 8. 1979 had conducted local inspection of the premises for which the H. R. C. case was started in pursuance of the directions of the hon'ble High Court vide their judgment dated 15. 1. 1979 in O. J. C. No. 36/77. The local inspection was conducted on 21/6/1979 and the report of the local inspection by him was appended to his judgment dated 7/8/1979 as an annexure. The report of the local inspection and Para-11 of the judgment give a clear picture of the premises for which the H. R. C. case was started. While considering the question whether the house of the rooms in respect of which this Execution case has been levied, really forms a part of the premises for which the H. R. C. application was filed, the learned executing Court may refer to the aforesaid report of local inspection and Para-11 of the Appellate judgment dated 7. 8. 1979. " ( 7 ) IT is pertinent to mention here that the present petitioner, claiming to be an outsider resisted the execution of the decree and filed three petitions, out of which one was under section 47 read with Order XXI, Rule 97 of the Code of Civil Procedure. (Misc. 8. 1979. " ( 7 ) IT is pertinent to mention here that the present petitioner, claiming to be an outsider resisted the execution of the decree and filed three petitions, out of which one was under section 47 read with Order XXI, Rule 97 of the Code of Civil Procedure. (Misc. Case No. 44 of 1999) and the other was under Section 151 read with Order XXI, Rule 20, C. P. C. to stay execution of the proceeding and the third one was to postpone the date of execution of the case. All the three applications were heard and disposed of by a common order dated 13. 10. 1999 by the Executing Court. The said order was challenged in Civil Revision No. 88 of 1999. The revisional Court by a well discussed order held that there is no merit in the submission made by the petitioner and dismissed the revision. The said order as stated above, is impugned in this writ application. ( 8 ) HEARD Sri M. C. Jena, learned counsel for the petitioner and Sri A. Mukherjee. learned Senior counsel for the opposite party. ( 9 ) BY referring to the provisions of Order XXI, Rule 97, an argument is advanced that a third party objector has no locus standi to intervene in the pending execution case and that if the said 3rd party has got any independent title, it is open for him to file separate suit to protect his right. Rules 97 to 101 and 103 of Order XXI of the Code deal with the subject of resistance to delivery of possession to a holder of decree of immovable property and to auction purchaser at the sale held in execution of a decree. These Rules, have, therefore to be read together forming one scheme. Rules 97 to 101 and 103 of Order XXI of the Code deal with the subject of resistance to delivery of possession to a holder of decree of immovable property and to auction purchaser at the sale held in execution of a decree. These Rules, have, therefore to be read together forming one scheme. ( 10 ) THE Apex Court in the case of brahmdeo Chaudhary v. Rishikesh Prasad jaiswal and another, observed that this view would result in patent breach of principle of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be fold off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. ( 11 ) IT has been further observed by the supreme Court that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI. Rule 99. Order XXI, Rule 97 deals with the stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgment debtor. Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgment debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the scheme of order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it even if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. The provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of a decree for possession obtained by a decree holder and whose attempt of executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing Court as well as by the decree holder, the remedy available to the decree holder against such an obstructionist, is only Order XXI, Rule 97, Sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order-XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order xxi, Rule 99, CPC and pray for restoration of possession. As stated earlier, such an interpretation would result in patent irregularities and violation of principles of natural justice and equity. ( 12 ) IN the case of Silverline Forum Put. As stated earlier, such an interpretation would result in patent irregularities and violation of principles of natural justice and equity. ( 12 ) IN the case of Silverline Forum Put. Ltd. v. Rajiv Trust and another, while interpreting Order 21, Rule 97 of the Code, the hon'ble Supreme Court observed as follows :"at the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21, rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. " ( 13 ) IN the case of Shreenath and another v. Rajesh and others while overruling the decision of the Full Bench of Madhya Pradesh high Court reported in AIR 1980 M. P. 146. the Apex Court, interpreting the words "any person" held that it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, including tenants or other persons claiming right on their own, as well a stranger. ( 14 ) IN view of the settled position of law discussed in the preceding paragraph, the application filed by the petitioner, which is under order 21, Rule 97 has to be adjudicated first before issuing fresh writ of delivery of possession and police help. ( 15 ) PERTINENTLY, the petitioner who is resisting delivery of possession with a purported or acquiring title by adverse possession, is non else than the son of late Madan Singh. It appears that a plea was taken in the House Rent control case that a portion of the property was sub-let to the said Madan Singh. Who is running his business in the name of Auto Engineering. It appears that a plea was taken in the House Rent control case that a portion of the property was sub-let to the said Madan Singh. Who is running his business in the name of Auto Engineering. The aforesaid facts get further clarified from the observation made by this Court in OJC No. 36 of 1977 disposed of on 15. 1. 1979. Paragraph-74 of the said judgment reads as follows :"during hearing of the writ application, counsel for the landlord as also the tenant agreed that the final order in appeal may be vacated and the appeal may be directed to be redisposed off. We should require the appellate authority to make a local inspection for appreciating the evidence and the appellate authority on a review of the materials on record is satisfied that Madan Singh would be summoned and examined, it would be open to the appellate forum to examine the said Madan Singh in the appellate stage. The counsel for the petitioner contends that since the matter is going on record, the tenant should be free to agitate all aspect afresh on the basis of the materials on record already the appellate authority is directed to dispose of all relevant questions arising in the matter by reappraising the evidence on the question of subletting, if parties so choose, further evidence may be permitted. " ( 16 ) IN consonance with the aforesaid direction, local inspection was conducted by the appellate Court. The relevant portion of the report which was referred to by the lower appellate Court is quoted herein below"during the time of local inspection, it was also found that there was no shop named "biswakarma Engineering works" in any portion of the hall. On the top of the roof of one of the rooms of the hall there was a signboard displaying the name of Auto Engineering works. In view of this position, it cannot be said that any person with the name Madan Singh is having any business in the name of Biswakarma Engineering Works in any portion of the hall. " ( 17 ) THE report also reveals that during emergency time, Municipality had demolished all structures constructed unauthorisedly, and during the time of trial no structure was existing. " ( 17 ) THE report also reveals that during emergency time, Municipality had demolished all structures constructed unauthorisedly, and during the time of trial no structure was existing. A cumulative assessment of the report visa-vis the finding arrived at by the authorities under House Rent Control Act, clearly reveals that the father of the petitioners, during the continuance of the proceeding claimed to have been in possession of the properties and running the work shop in the name of "biswakarma Engineering Works". The present petitioner, who is the son of Madan Singh, also claims to be the proprietor of "biswakarma engineering Works". This goes a long way to show that in fact the present petitioner is not a stranger, but at the other hand was aware of the house rent control proceedings. ( 18 ) EVEN otherwise, when local inspection was conducted on 21. 6. 1979. as would be evident from the enquiry report, there was no premises in the name and style of "biswakarma Engineering Works" over in the suit land. This fact is also admitted by the petitioners in Para-7 of the writ application. Law is well settled that only a stranger to a suit can resist delivery of possession in course of execution of decree, but then, such stranger has to prima facie satisfy that he has acquired valid title over the properties. In the present case as has been admitted by the petitioners and conclusively established in course of local inspection conducted on 21. 6. 1979, that neither the petitioner, nor "biswakarma Engineering works" was in possession of the disputed properties on the said date. Thus the plea that the petitioner has acquired title by way of adverse possession is not tenable and cannot be accepted. 6. 1979, that neither the petitioner, nor "biswakarma Engineering works" was in possession of the disputed properties on the said date. Thus the plea that the petitioner has acquired title by way of adverse possession is not tenable and cannot be accepted. ( 19 ) A perusal of the order passed by the revisional Court clearly reveals that while accepting the petition filed by the petitioner who is a stranger to the decree under Order XXI, rule 97 of the Code, the Revisional Court has rejected the petition on merits on the ground that the petitioner has totally failed to prove prima facie title and that the plea of adverse possession cannot be sustained in the eye of law in view of the clear admission of the petitioner, as well as, the report of the local inspection which was conducted on 21/6/1979 which reveals that Biswakarma Engineering works was not existing in the suit property. ( 20 ) AFTER perusing the order passed by the revisional Court; and in the light of the discussions made above, 1 find no apparent error or infirmity in the impugned order. 1 am not inclined to interfere with the impugned order and the writ application is accordingly dismissed. No costs. Petition dismissed.