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2001 DIGILAW 539 (ALL)

MAHENDRA NATH VERMA v. DISTRICT JUDGE, VARANASI

2001-05-22

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE Parshuram Joshi deceased, the father of respondent Nos. 3 to 6 filed a suit for eviction and for recovery of arrears of rent being S. C. C. suit No. 253 of 1972 against Baijnath, father of respondent Nos. 7 to 9 in the Court of J. S. C. C. , Varanasi. It was alleged in the plaint that baijnath was tenant of the ground floor as well as first floor of the house in dispute. The suit was decreed on 31. 3. 1979. The plaintiff, Parshuram Joshi filed an application for execution No. 17 of 1979 against Baijnath. During the pendency of the execution, Parshuram Joshi died and respondent Nos. 3 to 6 were impleaded in his place. Baijnath also died and respondent Nos. 7 to 9 were impleaded in his place. ( 2 ) THE petitioner claims that he is tenant of the first floor of the said house since long and the suit and the decree between Parshuram Joshi and Baijnath were collusive. Therefore, on 22. 3. 1986 he filed objections under Order XXI. Rule 97, C. P. C. , (however, in the objections Order XXII, Rule 35, C. P. C. has been wrongly written), with a prayer that he be not dispossessed from the first floor of the house. His objections were registered as Misc. Case No. 29 of 1986. The possession of the ground floor portion has already been taken by respondent Nos. 3 to 6 from respondent nos. 7 to 9 under a compromise. ( 3 ) THE objections of the petitioner were rejected by J. S. C. C. , Varanasi on 3. 3. 2001 by order annexure-2 to the writ petition. Against that order, the petitioner has filed the revision No. 72 of 2001 before the District Judge. Varanasi, The same has also been dismissed by order dated 28. 3. 2001, Annexure-1 to the writ petition. ( 4 ) THEREFORE, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with a request that both the orders Annexures-1 and 2 to the writ petition be quashed. ( 5 ) I have heard Sri Sankatha Rai and Sri V. K. Rai, learned counsel for the petitioner, Sri Anil bhushan, learned counsel for the respondent Nos. 3 to 6 and the learned standing counsel. ( 5 ) I have heard Sri Sankatha Rai and Sri V. K. Rai, learned counsel for the petitioner, Sri Anil bhushan, learned counsel for the respondent Nos. 3 to 6 and the learned standing counsel. ( 6 ) IT is contended that both the courts below have rejected the objections on the ground that they are not maintainable. That the question whether the petitioner is tenant since long and is in possession of the disputed portion as tenant in his own independent right has not been investigated by court below. It has been argued that the finding of both the courts below that the objections are not maintainable are not correct. ( 7 ) LEARNED counsel for the petitioner in support of the argument has referred to Brahmdeo chaudhary v. Rishikesh Prasad Jaiswal and another. AIR 1997 SC 856 . In this case, the decree was for delivery of possession. The bailiff went to the spot to execute the decree and to deliver the possession. He was resisted by the petitioner before the Honble Supreme Court and his brothers. Therefore, he returned the writ of delivery of possession with the report that it is not possible to execute it. Thereafter an application was moved by the decree-holder for delivery of possession with the help of the police force. Thereafter the petitioner of the case filed an application to stay the operation of the said warrant and to decide his objections. In these circumstances, the Apex Court has held that the objections are maintainable. It was observed by the Apex Court that : "it is easy to visualise 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, C. P. C. Order XXI, Rule 97, C. P. C. deals with a 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. While Order XXI. Rule 99. While Order XXI. Rule 99. C. P. C. , 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 inquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by 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. Provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at 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. C. P. C. with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI, Rule 97. C. P. C. 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, C. P. C. and pray for restoration of possession. " ( 8 ) THEREFORE, this authority is of no help in the present case. In the present case the Amin never went to the spot to deliver the possession of the disputed portion nor he was resisted by the petitioner. Therefore, the objection of the petitioner under Order XXI. " ( 8 ) THEREFORE, this authority is of no help in the present case. In the present case the Amin never went to the spot to deliver the possession of the disputed portion nor he was resisted by the petitioner. Therefore, the objection of the petitioner under Order XXI. Rule 97, C. P. C. were not maintainable, which reads as follows : "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 obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. " The perusal of this provision shows that it envisages an application by the decree-holder and not by the outsider. In the cited case, the outsider put resistance and the request was for delivery of possession with the help of police force of the person, who put resistance. Therefore, it was observed by the Apex Court that the application for delivery of possession with the help of police force be treated as an application under Order XXI, Rule 97, C. P. C. However, in the present case the petitioner being outsider his objections cannot be entertained and were rightly rejected. The petition is, therefore, without merit. ( 9 ) BEFORE parting with this case, it may also be observed that the objections of the petitioner appear to be totally frivolous. The defendant in the suit Baijnath also filed writ petition in this court, in which the petitioner filed an affidavit alleging himself to be pairokar of baijnath-defendant in the suit. In that affidavit, he did not allege that he is the tenant of the first floor portion. On the other hand, he claimed himself to be pairokar. Therefore, It is apparent that the petitioner is claiming through Baijnath, judgment-debtor and not an independent right. By the frivolous objections, the petitioner did not permit the decree holder to take possession since 1986. ( 10 ) IN the circumstances the petition is dismissed with Rs. 10. 000 as special cost to respondent nos. 3 to 6. .