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2002 DIGILAW 359 (KAR)

M. C. SUDHAMANI v. MADAIAH

2002-06-10

P.VISHWANATHA SHETTY

body2002
P. VISHWANATHA SHETTY, J. ( 1 ) THE appellant in this appeal is the applicant in Execution Case No. 36 of 1995 on the file of the Civil Judge (Junior Division) and Judicial magistrate First Class, Channapatna (hereinafter referred to as 'civil judge' ). In this appeal, he has called in question the correctness of the order dated 21st June, 1997 made in Execution Case No. 36 of 1995 by the Civil Judge. ( 2 ) FEW facts which may be relevant for disposal of this appeal may be stated as hereunder. ( 3 ) THE 2nd respondent-decree holder had obtained the decree against the 1st respondent-judgment debtor in Original Suit No. 112 of 1987 on the file of the Court of the Civil Judge (Junior Division), Channapatna for a declaration possession in respect of property bearing No. 90/a. It is the case of the appellant that while executing the said decree in Execution no. 36 of 1995, the 2nd respondent in collusion with Court Ameen, in excess of the terms of the decree, dispossessed the appellant from the property which is the subject-matter of dispute in this appeal. Aggrieved by the said dispossession, the appellant had filed an application under order 21, Rule 97 of the Civil Procedure Code (hereinafter referred to as the 'code') seeking for redelivery of the possession of the property in respect of which the appellant has been dispossessed. The application filed by the appellant for dispossession was resisted by the 2nd respondent-decree holder. The Civil Judge in the impugned order rejected the application of the appellant on the ground that the appellant has failed to establish that he has been dispossessed from the property in question illegally in execution of the decree obtained by the 2nd respondent-decree holder. ( 4 ) SRI G. A. Srikantegowda, learned Counsel appearing for the petitioner, challenging the impugned order submitted that since the impugned order has been passed without conducting an enquiry as prescribed under Rules 100 and 101 of Order 21 of the Code, the impugned order is liable to be set aside. In support of his submission, the learned Counsel also relied upon the Full Bench decision of this Court in the case of V. K. Rama Setty v A. Gopinath1. In support of his submission, the learned Counsel also relied upon the Full Bench decision of this Court in the case of V. K. Rama Setty v A. Gopinath1. He further submitted that though the application was filed under Order 21, Rule 97 of the Code, since the Court has the power to grant the relief under Order 21, Rule 99 of the Code. the error in not mentioning the correct provision of law should not be made as a ground to deny the relief sought for by the appellant. However, learned Counsel appearing for the 2nd respondent- decree holder strongly supported the impugned order. He pointed out that since the application was filed under Order 21, Rule 97 of the Code; and since Order 21, Rule 97 of the Code has no application, the order impugned is no liable to be interfered with by this Court. He further pointed out that since it is the case of the appellant that he has been dispossessed of the property which is not the subject-matter of decree and in excess of the decree, even the provisions contained in Rule 99 of order 21 has no application. According to him, an application under rule 99, Order 21 could be filed only in cases where an obstructer is dispossessed of the property which is the subject-matter of decree. ( 5 ) IN the light of the rival contentions advanced by the learned Counsels appearing for the parties, the only question that would arise for consideration is as to whether the impugned order is liable to be interfered with by this Court? ( 6 ) NO doubt, the application was filed under Order 21, Rule 97 of the code. However, Rule 99 of Order 21 of the Code provides for an application being filed by a person other than the judgment-debtor who is dispossessed of immovable property by a holder of decree for possession of such property; and on such application being made, the Court is required to adjudicate upon the application. It is useful to refer to Rule 99 of Order 21 of the Code which reads as hereunder:"rule 99. Dispossession by decree-holder or purchaser. It is useful to refer to Rule 99 of Order 21 of the Code which reads as hereunder:"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". Therefore, it cannot be disputed that the power is given to the Court under Rule 99 of Order 21 of the Code to give to a person other than the judgment-debtor who is dispossessed of the immovable property by a holder of decree for possession of such property. Sub-rule (2) of Rule 99 of Order 21 of the Code referred to above further makes it obligatory on the Court to adjudicate upon the application so made in accordance with the provisions contained under Rules 100 and 101 of Order 21 of the code. Therefore, so long as the power is reserved to a person, who is so dispossessed of property, to make an application under Rule 99 of Order 21 of the Code and obligation is cast on the Court to adjudicate upon such an application, merely because the appellant had wrongly quoted the provisions contained in Order 21, Rule 97 of the Code instead of Rule 99, in my view,should not be made as a ground to reject the said application. The Courts are entrusted with the power to adjudicate upon the value of the rights of the parties. Therefore, so long as the power is conferred on the Court under a provision of law, it is the duty of the court to trace that power and exercise the power to settle the dispute between the parties, notwithstanding the fact in the application filed seeking relief before the Court, wrong provision of law is quoted. Therefore, the only question that is required to be examined is whether the order passed by the Civil Judge is in conformity with the provisions contained in Rules 100 and 101 of the Rules. It is useful to quote the said provisions which reads as hereunder: ''rule 100. Therefore, the only question that is required to be examined is whether the order passed by the Civil Judge is in conformity with the provisions contained in Rules 100 and 101 of the Rules. It is useful to quote the said provisions which reads as hereunder: ''rule 100. Order to he passed upon application complaining of dispossession. Upon the determination 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 he put into the possesion 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. Question to be determined. All questions (including questions relating to right, title or interest in the property) rising 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 101 of the Rules referred to above mandates the Court to determine all the questions relating to right, title or interest in the property in respect of which an application is filed under Rule 99 of the Rules. Therefore, the reading of sub-rule (2) of Rules 99, 100 and 101 of Order 21 of the Code make it obligatory on the part of the Court to conduct an enquiry and dispose off the application in the same manner as the suit is required to be disposed off. In this view of mine, I am also supported by the decision of the Division Bench of this Court in the case of M/s. Paramound Industries and Metal Finishers v Smt. C. M. Mal!iga1 In the said decision, the Court had observed as follows:". . . THESE rules are to be read together. In that case, it is not difficult to see that these rules provide for deciding such obstruction or objections in the same manner as a suit and the order passed therein is made appealable. . . THESE rules are to be read together. In that case, it is not difficult to see that these rules provide for deciding such obstruction or objections in the same manner as a suit and the order passed therein is made appealable. No doubt, Rule 99 of order 21 also provides a remedy to such a person after he is dispossessed in the process of execution. But we are not able to see any justification for denying a person in possession of the property in his own right and not being a party to the order of eviction or a decree for possession, a right to resist the decree for possession or the order of eviction and to have the objections decided before he is dispossessed. . . ". ( 7 ) IN the instant case, admittedly, the Trial Court has not conducted any enquiry. On the other hand the Trial Court has proceeded to reject the application on the ground that the appellant has failed to place any material in support of her contention before the Court. Unless the procedure prescribed for disposal of suit is followed, the claim of the appellant cannot be negatived only on the ground that she has failed to place the material in support of her claim. In the circumstances of the case, an opportunity was required to be given to the appellant to establish her case. The same has not been done. At this juncture it is necessary to advert to the contention of the learned Counsel appearing for the 2nd respondent that an application under Rule 99 of Order 21 of the Code can be maintained by a person, provided his grievance i that he has been unjustifiably dispossessed from the property which is the subject matter of the decree; and such an application is not maintainable if the grievance as it is in this case that the applicant has been dispossessed of a property in excess of the property which is the subject-matter of the decree. I am of the view that there is no merit in this contention. The language employed in Rule 99 of Order 21 of the Code referred to above clearly provides for a right to a person other than a judgment-debtor who is dispossessed of immovable property by the holder of decree for possession of such property. I am of the view that there is no merit in this contention. The language employed in Rule 99 of Order 21 of the Code referred to above clearly provides for a right to a person other than a judgment-debtor who is dispossessed of immovable property by the holder of decree for possession of such property. Rule 99 cannot be construed as limiting the right of a person who is dispossessed from a property in the course of the execution of decree only in respect of the property which is the subject- matter of the decree. In my considered view, a person who is dispossessed of any property whether it is covered under decree or beyond the decree is entitled to make an application making grievance of such dispossession and seek for possession. ( 8 ) THEREFORE, in the light of the discussion made above, the order dated 21st June, 1997 in Execution Case No. 36 of 1995 is liable to be set aside. Accordingly, it is set aside. The matter is remitted to the court of Civil Judge (Junior Division ). The learned Judge is directed to consider the application filed by the petitioner as the one under Order 21 of Rule 99 of the Code and dispose off the same after complying with the procedure prescribed under Rules 100 and 101 of Order 21 of the code. ( 9 ) THE learned Judge is also directed to dispose off the proceedings as expeditiously as possible, and at any event of matter not later than six months from the date of receipt of a copy of this order. With a view to avoid unnecessary delay in the matter of sendee of notice to parties, the appellant and the 2nd respondent-decree holder are directed to appear before the Civil Judge (Junior Division), Channapatna on 8th July, 2002. The Trial Court is also directed to issue notice to the 1st respondent judgment debtor for his appearance in the course of the proceedings. ( 10 ) HOWEVER, no order is made as to costs. --- *** --- .