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2003 DIGILAW 490 (CAL)

MINATI GHOSH v. LAKSHMI NARAYAN SARKAR

2003-09-17

PRABIR KUMAR SAMANTA

body2003
PRABIR KUMAR SAMANTA, J. ( 1 ) THIS revisional application under Section 115 of the Code of Civil procedure is directed against the order dated 22-7-2002 passed in Misc. Case No. 44 of 2000. The aforesaid Misc. Case arises out of an application filed by the opposite parties herein under Order 21, Rule 99 and 101 of the Code of Civil Procedure. The trial Court by the aforesaid impugned order held that the said Misc. Case is maintainable in law by rejecting the contention of the petitioner. ( 2 ) THE petitioner filed a suit for specific performance of contract being T. S. 185 of 1991 against the opposite parties Nos. 3 to 7. At the appellate stage a compromise decree was passed and it is the case of the petitioner that while she made an application in the suit for police help for taking possession of the suit property, the sons of the opposite party No. 3 who was the original defendant No. 1 and who alone entered into an agreement to sell the suit property to the petitioner, resisted the execution of the decree. The misc. case that arose out of the application filed by the sons of the opposite party No. 3 was dismissed. Such dismissal was further affirmed by this Court. The petitioner thereafter took over possession of the suit properly pursuant to the orders made by the trial Court in the said suit and ultimately by an order dated 15-9-2000 it was recorded in the suit that the same was disposed of upon full satisfaction of the decree. ( 3 ) AFTER the aforesaid order was made the opposite parties Nos. 1 and 2 herein filed an application under Order 21, Rule 99 and 101 read with Section 151 of the Code of civil Procedure in the self same Court in connection with the above suit. On the basis of the said application the instant Misc. Case No. 44 of 2000 has been registered by the trial Court. In substance the case of the said opposite parties is that the original defendant No. 1 had no title to the suit property to convey in favour of the petitioner and the sons of the opposite party No. 3 i. e. the sons of the defendant No. 1 in the suit are the caretakers of the suit property. In substance the case of the said opposite parties is that the original defendant No. 1 had no title to the suit property to convey in favour of the petitioner and the sons of the opposite party No. 3 i. e. the sons of the defendant No. 1 in the suit are the caretakers of the suit property. The aforesaid decree in the said suit and delivery of possession were thus made in collusion between the petitioner and the said opposite parties. ( 4 ) MR. Sudhir Dasgupta, learned senior advocate appearing on behalf of the petitioner raised question as to the maintainability of the said Misc. Case on the Page 2 of 5 grounds that the proceeding for delivery of possession pursuant to the decree passed in a suit for specific performance of contract is a proceeding in the suit Itself and therefore any provisions of Order 21, of the Code which relates to the execution of decrees and orders cannot be made applicable in relation to a dispute arising out of orders made for delivery of possession in the suit itself pursuant to a decree for specific performance of contract passed by it. Secondly, the suit having been finally disposed of, there being no proceeding pending, far less to speak of an execution proceeding, the application under Order 21, Rule 99 and 101 is not maintainable. ( 5 ) I propose to deal with the above second question before dealing with the questions as raised above in this revisional application. Order 21, Rule 99 of the Code reads as under : " (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. " ( 6 ) UPON bare reading of the aforesaid provision it does not appear that for the purpose of making of an application thereunder, the party making such application must be in possession of the suit property. " ( 6 ) UPON bare reading of the aforesaid provision it does not appear that for the purpose of making of an application thereunder, the party making such application must be in possession of the suit property. On the contrary it enables a party other than the judgment debtor to make an application thereunder for possession where he has been disposed by the holder of the decree. Rather Rule 99 of Order 21 of the Code stipulates that such an application by a party other than the judgment debtor could only be made after he has been disposed by the holder of the decree. In this connection it may be noted that the aforesaid provision also does not stipulate that for the purpose of making such application for possession, there must be prior dispossession only by execution of a decree. ( 7 ) NOW on the other questions as above raised in this revisional application Mr. Dasgupta referred to the provisions of subsections (3) and (4) of Section 28, of the specific Relief Act (hereinafter called as the said act) and the notes on the clauses on Bill 92 of 1960 which recorded the reasons and necessity for introduction of the said provisions in the said Act of 1963. True, the said provision has been introduced in the said Act to avoid multiplicity of proceedings, so that the plaintiff may at the same time claim for a decree for possession in his suit for specific performance of contract and the court may on the application made in this behalf grant necessary relief including delivery of possession in the self same suit without requiring the plaintiff who has obtained a decree in the suit for specific performance of contract either to file a fresh suit for the relief of execution of proper conveyance by the vendor or to file an execution case for such purpose and also for the purpose of recovery of possession of the property upon execution of proper conveyance. The said procedures in the suit as prescribed by the aforesaid provisions of the said Act are therefore in lieu of the execution proceeding that would have resulted in the event of a decree passed in the suit for specific performance of contract. The said procedures in the suit as prescribed by the aforesaid provisions of the said Act are therefore in lieu of the execution proceeding that would have resulted in the event of a decree passed in the suit for specific performance of contract. The said provisions have been introduced to save time and to avoid multiplicity of proceedings as it appears from the reasons given as above for the purpose of doing complete and comprehensive justice to the decree holder in a suit for specific performance of contract without requiring him to file one after another proceedings for the purpose of getting executed a proper conveyance by the vendor and then for recovery of possession of the property so conveyed upon such execution. If this be the underlying principle of sub-sections (3) and (4) of section 28 of the said Act, then by necessary implication it should also be held, that all questions, that would have arisen in the event of a separate execution proceedings upon a decree made in a suit for specific performance of contract, could be raised and if raised would be decided in the suit itself at that stage where grant of relief under subsections (3) and (4) of Section 28 of the said act is being considered. Because on the other hand if a question arises in connection with delivery of possession and such question is not decided at that stage and is left open to be decided upon filing of fresh suit, then the very purpose of introduction of the said sub-sections (3) and (4) of Section 28 of the said Act would be meaningess. ( 8 ) AGAIN if it is looked into in other perspective the same conclusion will follow. Order 21, Rule 101 of the Code provides as under:"all questions (including questions relating to right title or interest in the property) arising 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. " ( 9 ) THIS provision stipulates two things. " ( 9 ) THIS provision stipulates two things. First, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 99 shall be determined by the Court and secondly not by way of a separate suit for the purpose of determination of such questions. Again under Order 21, Rule 103 any adjudication made by the Court on such application under Order 21, Rule 99 by deciding such questions is appellable as if such adjudication was a decree. These provisions therefore in no uncertain terms give an impression that the proceeding that would be followed in an application under Order 21, rule 99 of the Code is in the nature of a proceeding of a suit and in practice the proceedings of a suit as far as practicable are adopted in the adjudication of such an application. It is therefore clear that an application under Order 21, Rule 99 of the Code cannot be said have no independent existence without any execution proceeding being in existence. Therefore the contention that such an application cannot be entertained unless there is an execution proceeding pending cannot be sustained in Law. On the other hand the proceeding on the basis of the above application under Order 21, rule 99 of the Code being in the nature of a suit, the plea that in the facts and circumstances of this case, the opposite parties nos. 1 and 2 ought to have filed an independent suit, appears to have been satisfied. ( 10 ) ALTERNATIVELY it would be suffice to say that if the application under Order 21, rule 99 is treated as an application in connection with execution of decrees and orders as being a provision under Order 21, of the Code then also the proceeding as envisaged under sub-sections (3) and (4) of section 28 of the said Act should similarly be treated as a proceeding for execution consequent to the decree passed for specific performance of contract. ( 11 ) THE Special Bench decision of this court reported in AIR 1983 Cal 166 (Smt. Dhiraj Bala Karia v. Jelhia Estate Pvt. Ltd.) as cited by Mr. Dasgupta does not make any difference in this case. ( 11 ) THE Special Bench decision of this court reported in AIR 1983 Cal 166 (Smt. Dhiraj Bala Karia v. Jelhia Estate Pvt. Ltd.) as cited by Mr. Dasgupta does not make any difference in this case. It has been laid down in the decision that the relief for possession in favour of the successful plaintiff in a suit for specific performance of contract cannot be considered as a separate and distinct one. When the Court decrees a suit for specific performance of an agreement for transfer of an immovable property the Court enforces the said agreement by ordering the defendant to execute necessary document and also to deliver possession of the property if the plaintiff prays for the same. Mr. Dasgupta referred to the above decision for the purpose of establishing the view that the proceeding, as was taken for delivery of possession consequent upon the decree passed for specific performance of contract, being in the suit itself, the application under order 21, Rule 99 of Code, which should necessarily be in connection with execution proceeding, is not maintainable. This decision merely lays down that such relief for possession is only an ancillary or consequential relief and Court would grant such relief to the successful plaintiff in the suit itself where the plaintiff prays for the same, without laying down in principle that in the process for delivery of possession, no questions as would have been raised under Order 21, rule 99 of the Code, would be allowed to be raised, as such process is adopted in the suit and not in a separate execution proceeding. For the reasons stated above I do not find this decision as the determining factor for the question raised in this revisional petition. ( 12 ) THE decision of the Supreme Court reported in AIR 1961 SC 137 (Shew Bux mohata v. Bengal Breweries Ltd.) as cited by Mr. Dasgupta is also of no consequence in answering the questions raised in this revisional petition. The Supreme Court in this decision has laid down that where the decree holder has accepted delivery of possession in his favour in execution of the decree, though in fact the defendant remains in possession, and upon such acceptance decree has been fully satisfied then there cannot be any further execution of the decree upon a plea that the defendant is remaining in possession. The entire endeavour of Mr. Dasgupta is to impress upon the proposition that the suit for specific performance stood finally disposed of and upon deliver of possession to the petitioner, the decree in law became fully satisfied, even if it is held that such delivery of possession was made in the proceeding which was in the nature of execution proceeding, then also a further application under Order 21, Rule 99 of the Code is not maintainable as the said application is in connection with execution of decrees and orders as provided under order 21 of the Code. For the reasons stated above it has already been held that an application under Order 21, Rule 99 is an independent application and filing of such application is not dependent upon pendency of any execution proceeding. ( 13 ) THE Division Bench decision of this court reported in AIR 1945 Cal 355, (Prem sukh Gulgulia v. Habib Ullah) as cited by mr. Dasgupta has laid down that a person who claims adversely to the vendor is however, not a necessary party in a suit for specific performance of contract. The scope of a suit for specific performance of a contract for sale ought not to be enlarged and the suit turned also into a title suit between one of either of the parties to the contract and a stranger to the contract. The Supreme Court in the decision reported in (1995) 3 SCC 147 (1995 AIR SCW 1782), (Anil Kumar Singh v. Shlvnath Misra) as cited by Mr. Dasgupta has laid down that in a suit for specific performance of contract a party cannot be impleaded in the suit simply because he has acquired the status as a co-owner of the suit property by a decree during the pendency of the suit for specific performance of contract. The proposition as laid down by the aforesaid two decisions is sound and proceeds on the footing that a person who may claim or have an interest in the suit property cannot be impleaded as a party to a suit for specific performancy of contract if he is not a party to the agreement for sale. First, because his presence would not help the Court in any way to decide the case effectually and completely as he is not a party to the agreement. He is therefore, not a necessary party. First, because his presence would not help the Court in any way to decide the case effectually and completely as he is not a party to the agreement. He is therefore, not a necessary party. He is also not a proper party as it cannot be said that without his presence the dispute as to the specific performance cannot be determined. Lastly the suit for specific performance of contract should not be turned into a title suit between one of either parties to the contract and a stranger to the contract by bringing in such stranger. ( 14 ) MR. Dasgupta referred to these two decisions for the purpose of referring to the last proposition as above and to convince the Court with the proposition that the opposite parties Nos. 1 and 2 being not parties to the agreement for sale, the said application under Order 21, Rule 99 by them would turn the suit for specific performance of contract into a title suit between the petitioner and the said opposite parties Nos. 1 and 2. On the own showing of Mr. Dasgupta this argument cannot be entertained. The suit for specific performance of contract has been finally disposed of and the decree so passed therein has also been fully satisfied upon delivery of possession. There is therefore no scope for converting the suit for specific performance of contract into a title suit between the petitioner and the opposite parties Nos. 1 and 2. As observed hereinabove the application under Order 21, Rule 99 is an independent application and filing of such an application is not dependent upon pendency of any execution proceeding. Again in terms of the language of the said provisions of Order 21, Rule 99 of the Code, there is no bar to make an application after delivery of possession is made in execution of a decree. Furthermore the. said application being required to be adjudicated upon by determining all questions relating to right, title and interest between the parties in the suit property, as involved therein the same shall be decided as that of a fresh suit on the issues involved therein. ( 15 ) THEREFORE by no means it can be said that the trial Court acted illegally and with material irregularity in its exercise of jurisdiction by holding the above application as maintainable in law. This revisional application is accordingly dismissed. ( 15 ) THEREFORE by no means it can be said that the trial Court acted illegally and with material irregularity in its exercise of jurisdiction by holding the above application as maintainable in law. This revisional application is accordingly dismissed. There will be ho order as to costs. Application dismissed. .