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2002 DIGILAW 97 (GAU)

Bhubanpati Singh v. Prajapati Sharma

2002-02-27

AMITAVA ROY

body2002
AMITAVAROY, J. — This present revision petition has been projected against the order dated 9.1.2002 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Execution No. 14/96 rejecting an application under Order 21 Rule 101 of the Code of Civil Procedure read with Section 151 of the CPC filed by the revision petitioners/judgment debtors. 2. I have heard Shri S.P. Roy, the learned advocate for the petitioners as well as Shri S. Sarma, the learned counsel for the respondent No. 1/decree holder. 3. The fascicule of facts relevant for the purpose of disposing the present petition can be narrated hereunder. The present opposite party No. 1 and one Arun Kr Konwar had filed T.S. No. 217/91 in the Court of Assistant District Judge No. 1, Kamrup at Guwahati against Smt Rukmini Devi Singh, the predecessor in interest of the present revision petitioners praying for a decree inter-alia for specific performance of contract for sale of the land involved in the suit. The suit was later, on transferred to the Court of the learned Assistant District Judge No. 2, Kamrup and was re-numbered as T.S. No. 73/93. Smt Rukmini Devi Singh expired on 6.1.92 and was substituted by the present revision petitioners in the suit. Later on, Shri Arun Kr. Konwar withdrew from the suit and, thereafter, the opposite party No. 1 filed an application to add the opposite party No. 2 as defendant in the suit. Accordingly, the plaint was amended. The suit was ultimately decreed ex-parte on 16.7.94 as the defendants/revision petitioners failed to contest the suit. The opposite parties-plaintiffs thereafter started the execution case No. 3/95 which was later oil transferred to the Court of Assistant District Judge No. 1, Kamrup at Guwahati. Eventually, in terms of the decree passed in the suit, a sale deed was executed in favour of the opposite party-plaintiffs on 3.9.96 through the same Court. While the matter rested at that, the revision petitioners filed an application under Order 21 Rule 101 of the CPC mentioned above in the execution case which had been registered as Title Execution Case No. 14/ 96 on transfer to the Court of Civil Judge (Sr. Division) No. 1, Guwahati and prayed for adjudication of the dispute regarding the possession of the suit land between them and the decree holders-plaintiffs/ opposite party. Division) No. 1, Guwahati and prayed for adjudication of the dispute regarding the possession of the suit land between them and the decree holders-plaintiffs/ opposite party. Keeping in view the limited legal issue involved in the present proceedings, narration of intervening facts have been avoided. Suffice it to say, it was contended, therein, that though the plaintiffs opposite party had failed the suit for specific performance of contract and confirmation of possession over the suit land at no point of time the petitioners or Smt Rukmini Devi Singh had handed over to them actual physical possession thereof. It was only in the 1 st week of March, 2000 that the plaintiffs-opposite party came to the suit land and tried to occupy the same forcibly and when the petitioners resisted the said action, the opposite party-plaintiffs replied that a sale deed had already been executed in their favour in respect of the suit land pursuant to the ex-parte decree dated 16.7.94. The petitioners contended that they came to know about the ex-parte judgment and decree only on 5.3.2000. They claimed to be in exclusive physical possession of the suit land and, therefore, contended that the attempt on the part of the opposite party-plaintiffs to take forcible possession thereof has given rise to a bonafide dispute between them which ought to be adjudicated by the Court under Order 21 Rule 101 of the CPC. 4. A written objection was filed on behalf of the opposite party-plaintiffs, wherein, while categorically denying that the revision petitioners were in possession of the suit land, it was asserted that the suit land had been in their possession since the time of execution of agreement for sale dated 20.3.91 and that therefore the question of occupying the suit land forcibly in the 1st week of March, 2000, as alleged, did not arise. It was further averred in the written objection that the petitioners were fully aware of the suit and the execution proceedings, but did not deliberately contest the same. They, further asserted that the factum of their possession of the suit land had also been clearly mentioned in the sale deed dated 3.9.96 executed between the Assistant District Judge No. 1, Guwahati and the opposite party No. 1. They, further asserted that the factum of their possession of the suit land had also been clearly mentioned in the sale deed dated 3.9.96 executed between the Assistant District Judge No. 1, Guwahati and the opposite party No. 1. They, therefore, contended that in the facts and circumstances of the case, there was no dispute whatsoever with regard to the possession of the suit land and that the application was neither maintainable nor bonafide. It may be stated here that the revision petitioners also filed an application under Order 39 Rule 1 and 2 of the CPC read with Section 151 of the CPC praying for interim injunction for restraining the opposite-party-plaintiffs and their agents etc from disturbing their physical possession of the suit land claiming that the petitioners were still in occupation of the suit land. An objection to the said application for interim injunction was also filed by the opposite party No. 1. While the said applications were pending consideration before the learned Court below the revision petitioners filed another application praying for an opportunity to adduce evidence in support of their plea that they are in actual physical possession of the suit land. 5. The learned Court below after hearing both the parties, by the impugned order dated 9.1.2002, rejected the application under Order 21 Rule 101 read with Section 151 of the CPC as not maintainable in law and consequently, the application for injunction mentioned hereinabove was also rejected. It appears that by an order dated 24.3.2000 the learned Court below had passed an order of status-quo. By the impugned order the said order of status-quo also stood vacated. 6. On a plain reading of the impugned oilier it is clear that the learned Court below had rejected the application under Order 21 Rule 101 of the CPC filed by the petitioners primarily on the ground that such an application filed by the petitioners as judgment debtors did not lie under Rule 97and/or99ofOrder21 of the CPC. While passing the impugned order the learned Trial Court further observed that the petitioners though aware of the ex-parte judgment and decree dated 17.6.94 had not assailed the same either by filing an appeal or by availing any other remedy available to them under the law. While passing the impugned order the learned Trial Court further observed that the petitioners though aware of the ex-parte judgment and decree dated 17.6.94 had not assailed the same either by filing an appeal or by availing any other remedy available to them under the law. It also noticed that the revision petitioners had neither challenged the legality and/or validity of the sale deed in the application nor had they approached any other forum for setting aside the same. The learned trial Court further observed that they had also not assailed the propriety and legality of the process of execution of the decree and concluded that by their conduct they had also accepted the execution of the decree. The learned Court below also took note of the fact that the opposite-party-plaintiffs had claimed to be in possession of the suit land from the very date of the agreement and that the factum of their possession had been specifically referred to in the sale deed. It was observed by the learned trial Court that the execution case was finally disposed of by order dated 27.9.96 following execution of the sale deed and that the said order had also not been challenged by the petitioners-judgment debtors. The learned Court below in coming to its finding that the application under Order 21 Rule 101 of the CPC filed by the petitioners-judgment debtors was not maintainable, took into consideration several decisions of various High Courts including those of this Court. 7. The learned counsel for the revision petitioners argued that the learned Court below erred in law and in facts in dismissing the application under Order 21 Rule 101 of the CPC filed by them as not maintainable. He further argued that an application under the said provisions of law can be filed by a judgment debtor if there is a bonafide dispute with regard to possession of the suit land in execution of the decree. He submitted that keeping in view the provisions of Order 21 Rule 97, 99 and 101 of the CPC it is clearly permissible for a judgment debtor to raise such a dispute with regard to possession of the suit land and if such a dispute is raised, it is incumbent on the learned executing Court to adjudicate the same. He submitted that keeping in view the provisions of Order 21 Rule 97, 99 and 101 of the CPC it is clearly permissible for a judgment debtor to raise such a dispute with regard to possession of the suit land and if such a dispute is raised, it is incumbent on the learned executing Court to adjudicate the same. He contended that such a dispute can be decided only in a proceeding under Order 21 Rule 101 and a fresh suit on the issue is barred. He further argued that the learned Court below went wrong in rejecting the application under Order 21 Rule 101 of the CPC without first considering his application for examination of witnesses in support of his plea of possession of the suit land. 8. Refuting the above submissions, the learned counsel for the opposite part-decree holder contended that the learned Court below was fully justified in passing the impugned order and the same does not suffer from any error of jurisdiction. The learned counsel for the opposite party contended that his clients had been in possession of the suit land from the date of execution of the agreement for sale i.e. 20.3.91 and that the said fact is amply established by the recital in the sale deed dated 3.9.96 to the said effect. He contended that as the sale deed has been executed as a consequence of a decree of the Court below and as the sale deed is between the Assistant District Judge, Guwahati and the opposite party No. 1-decree holder in terms of the decree, the incorporation of the statement in the sale deed mentioning about the possession of the opposite party of the suit land constitutes an official act, the validity whereof has to be presumed unless something contrary to the same is shown. He contended that in the present case the petitioners have neither challenged the decree nor the sale deed and, therefore, it was not permissible for them to plead that they are in possession of the suit land. He further submitted that it is, therefore, not open for them to raise any dispute with regard to the possession thereof. 9. The learned counsel for the petitioners, in support of his submissions has relied on the following decisions:- 1. Smti Moti Kurmi- Vs-State of Assam, (1990) 2 GLR (NOC) 30. 2. 1997(3) SCC 694 ; 3. Nooruddin-Vs-Dr. He further submitted that it is, therefore, not open for them to raise any dispute with regard to the possession thereof. 9. The learned counsel for the petitioners, in support of his submissions has relied on the following decisions:- 1. Smti Moti Kurmi- Vs-State of Assam, (1990) 2 GLR (NOC) 30. 2. 1997(3) SCC 694 ; 3. Nooruddin-Vs-Dr. K.L. Anand, (1995) 1 SCC 242 ; 4. R.S. Ajara- Vs-State ofGujarat, (1997) 3 SCC 641 ; 5. Satyendra Ghosh-Vs-Bani Bhatta-charjee, 1998(4) GLT367; and 6. N.S.S. Narayana Sarma & others- Vs-Goldstone Exports (P) Ltd. & Others, (2002) 1 SCC 662 . 10. In reply, the learned counsel for the opposite parties has relied on the following decisions:- 1. Ramesh Chandra Malakar-Vs-Bani Bala Das, 1974 ALR 215; 2. Ganga Prasad and others-Vs-Ram Saran and others, AIR 1978 Allahabad 43; 3. (1997) 1 GLT 67: Miss Lumbini Baura-Vs-Cotton College, Guwahati; and 4. Shreenath and another-vs-Rajesh & others, (1998) 4 SCC 543 . 11. I have carefully gone through the decisions cited at the Bar. All the decisions relied upon by the learned counsel for the parties substantially deal with the scope of Order 21 Rule 97, 99 and 101 of the CPC. However, the facts of the cases in the aforesaid decisions are distinguishable from those in the present case. In none of the cases covered by the decisions referred to above, the applicant under Order 21 Rule 97 was either the judgment debtor in a suit or any person claiming under him. It was a stranger or some other person claiming an independent right who had filed such an application praying for adjudication of the bonafide dispute with regard to the possession of the land involved in the proceedings. The decisions relied upon by the learned counsel for the petitioners therefore, in my opinion, are of no assistance to him so far as the issue involved in the instant proceedings is concerned. The decisions cited by the learned counsel for the opposite parties-respondents barring one reported in 1997(1) GLT 67 (supra) are also in the same lines as the decisions relied upon by the learned counsel for the petitioners. 12. Rules 97 to 101 of Order 21 contain provisions to enable the executing Court to deal with a situation when a decree holder, entitled to possession of property encounters obstructions from any person. 12. Rules 97 to 101 of Order 21 contain provisions to enable the executing Court to deal with a situation when a decree holder, entitled to possession of property encounters obstructions from any person. The said provisions have been enacted in order to ensure that a decree holder is able to enjoy the fruits of the decree by getting adjudicated any bonafide dispute with regard to delivery of possession of the suit property by the executing Court itself. The purpose therefore, as it appears, is to avoid delay in the matter of execution of a decree of flimsy and untenable objections with regard to delivery of possession of the suit land consequent upon passing of decree in a suit. In view of the avowed object of the law makers to cut down delay in execution of a decree of a Court of law, I am of the opinion that a dispute with regard to delivery of possession of the suit property has to be a bonafide one so as to be entertained in a proceeding initiated by an applicant under Order 21 Rule 97 or 99. If it is not so, and the Court starts entertaining any and every application raising dispute with regard to delivery of possession of the suit property pursuant to a decree, it will not only frustrate the purpose of the aforesaid provisions of the Code but also could prove to be counter productive. 13. In the present case, admittedly the revision petitioners-judgment debtors had not challenged the ex-parte decree in any forum. They have also not assailed the process of execution proceedings. The records also do not reveal that the petitioners have taken any step to get the sale deed executed in favour of the opposite party-decree holder cancelled. As a matter of fact, there is nothing on records to suggest that they had challenged the legality and validity of the said sale deed. It was only after about 314 years of the execution of the sale deed that they filed the application under Order 21 Rule 101 of the CPC contending that they are in possession of the suit land and that the opposite party-decree holder, on the strength of the sale deed dated 3.9.96 is trying to take forcible possession of the same. It may be relevant to mention here that the opposite party-decree holder in his written objection to the said application had categorically stated that he had been in possession of the suit land continuously without any break since 20.3.91. The sale deed dated 3.9.96 also confirms that he was in possession of the suit land on the date of execution thereof. 14. The learned counsel for the opposite party-decree holder relying on the decision in 1997(1) GLT 67 (supra) has argued that as the factum of his client's possession has been mentioned in the sale deed and as the said deed has been executed between the Assistant District Judge No. 1, Guwahati and his client, such a statement as to be accepted to be correct having been incorporated in course of an official act, validity whereof has to be presumed unless otherwise shown. 15. The learned trial Court in passing the impugned order has taken note of all these aspects of the matter. In the facts and circumstances of the case, I am also inclined to hold that there is nothing on record to conclude that the application filed by the revision petitioners under Order 21 Rule 101 of the CPC has raised a bonafide dispute with regard to delivery of possession of the suit land. 16. Considering the materials on record therefore I have not been able to persuade myself to hold that the impugned order of the learned trial Court suffers from any error of jurisdiction or any illegality occasioning a failure of justice warranting interference by this Court in exercise of its powers u/s 115 of the Code of Civil Procedure. The revision petition therefore is without any merit and the same is hereby dismissed. 17. However, there shall be no order as to costs.