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2004 DIGILAW 177 (HP)

ANUPAM COFFEE HOUSE KANDAGHAT v. VED PRAKASH

2004-07-29

LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.—This revision petition under Section 115 of the Code of Civil Procedure has been filed by the petitioners-objectors against the order dated April 12, 2004 passed by learned District Judge, Solan in CMA No. 6-S/14 of 2003 affirming the order passed by learned Civil Judge (Junior Division), Kandaghat in case No.3 and 4-K/II of 2003, dated 8.12.2003 dismissing the objections of the petitioners filed under Order 21 Rule 97 of the Code of Civil Procedure in Execution Petition No. 8-K/10 of 2003. 2. Plaintiff Ved Parkash Sharma, respondent No.1 herein had filed a suit against Jugal Kishore, respondent No. 2 herein for the possession of the land and building comprising in Khasra No. 619 situate in Mauja Srinagar, Kandaghat Bazar, District Solan. The said suit was decreed by the learned trial Court on 20.6.1998. The appeal filed by Jugal Kishore Sharma, respondent No. 2 against the judgment and decree of the learned trial Court in Civil Suit No. 53/1 of 1996 was dismissed by the learned first appellate Court. Cross appeal filed by Ved Parkash Sharma was also dismissed as not pressed. Ved Parkash Sharma, respondent No.1-plaintiff (hereinafter referred to as the Decree Holder) filed execution petition against Jugal Kishore Sharma, respondent No.2 (hereinafter referred to as the Judgment Debtor) before the trial Court. Cross appeal filed by Ved Parkash Sharma was also dismissed as not pressed. Ved Parkash Sharma, respondent No.1-plaintiff (hereinafter referred to as the Decree Holder) filed execution petition against Jugal Kishore Sharma, respondent No.2 (hereinafter referred to as the Judgment Debtor) before the trial Court. The present petitioners-objectors have filed objections against the execution petition inter alia on the following grounds: (i) Decree sought to be executed was the result of fraud and misrepresentation of true facts; (ii) The tenant in the premises is M/s. Anupam Coffee and Refreshment House, Kandaghat, a partnership firm of Rajinder Sharma, objector No.2 and Jugal Kishore Sharma, JD and since this firm had not been impleaded as tenant in the suit, the decree was nonest and hence inexecutable; (iii) Objector No.2 had been in possession of the premises as partner of the firm and hence the decree was not executable against him, or the firm being not party to the suit; (iv) The decree was vague and incapable of execution because the description of the property from which the dispossession is sought too vague to pin point/identify the property on the spot; and (v) The property is joint of the decree holder and several other persons and thus the decree holder was not the absolute owner, but only a co-owner and other co-owners having not been joined as party to the suit, decree was not executable. 3. In the reply to the objection petition, the Decree Holder pleaded that the objectors have no locus standi to file the objection petition and they have not approached the Court with clean hands. He stated that the premises in dispute had been taken on rent by Jugal Kishore Sharma, Judgment-Debtor and it was he who had been paying the rent to the Decree-Holder. However, it was denied that M/s. Anupam Coffee House was a partnership firm. In the alternative, it was averred that even if the said concern firm was a partnership firm, the Decree-Holder had no knowledge thereof nor was that concern inducted as tenant by him at any stage and that the tenancy was created and continued to be in favour of Jugal Kishore Sharma, Judgment-Debtor in his personal capacity. 4. In the alternative, it was averred that even if the said concern firm was a partnership firm, the Decree-Holder had no knowledge thereof nor was that concern inducted as tenant by him at any stage and that the tenancy was created and continued to be in favour of Jugal Kishore Sharma, Judgment-Debtor in his personal capacity. 4. The learned Civil Judge (Junior Division), Kandaghat dismissed the objections of the objectors without traming issues and recording the evidence of the parties holding that the objections filed were an attempt to abuse the process of Court. 5. Being aggrieved, objectors filed appeal before the learned District Judge. The learned District Judge agreeing with the reasonings and findings of the learned trial Court, dismissed the appeal. Now the objectors are in revision before this Court challenging the validity and correctness of the order of the learned first appellate Court. 6. I have heard learned Counsel for the parties. Mr. Bhupinder Gupta, learned Senior Counsel appearing on behalf of the objectors contended that both the Courts below have acted with material illegality and irregularity in summarily dismissing the objections of the objectors without framing issues and permitting the objectors to adduce their evidence to prove their claim over the property in dispute as tenants. He further contended that the courts below have placed reliance on the documents of the civil suit for dismissing the objections of the objectors without affording an opportunity to them to rebut the said documents, as the objectors admittedly were not parties to the suit. The learned Senior Counsel then contended that the findings have been recorded by the courts below on no evidence and thereby miscarriage of justice has been caused to the objectors, and therefore, the order of the learned District Judge impugned in this revision petition deserves to be set aside and the objections of the objectors are to be heard and decided in accordance with law on merits. 7. Per contra, Mr. 7. Per contra, Mr. S.V. Sharma, learned Counsel appearing on behalf of the Decree-Holder contended that the order of the learned District Judge reveals that at the time of hearing of the appeal, learned Counsel for the objectors had raised objection only to the extent that the tenant of the property in dispute is a partnership firm in the name and style of M/s. Anupam Coffee House and judgment debtor was not a tenant in the personal capacity and since the firm was not impleaded as a party to the suit, the decree passed against the judgment debtor cannot be executed and as the other objections were not pressed into service by the objectors, this court cannot hear the objectors to raise other objections. He then contended that both the courts below have found that it was Jugal Kishore Sharma who was the tenant of the property in dispute and he has not pleaded that he acted as partner of the objectors and not in his individual capacity. He next contended that both the courts below have concurrently recorded findings based upon the documents placed on the record of the execution petition and this Court in exercise of revisional jurisdiction will not interfere with the well reasoned orders of the Courts below. 8. I have given my anxious and thoughtful consideration to the rival contentions of the learned Counsel for the parties. 9. It is not in dispute that the civil suit was filed by Ved Parkash Sharma against Jugal Kishore Sharma defendant for the possession of the property in dispute. The said civil suit was decreed by the trial Court. The decree of the trial Court was affirmed by the first appellate Court. The objectors have filed objections under Order 21 Rule 97 CPC in the execution petition filed by the Decree-holder. They have claimed that rent from December, 1991 to March, 1994 had been accepted by the Decree-holder from M/s. Anupam Coffee and Refreshment House and rent receipt in token of the receipt of the rent was issued to in the name of the firm accepting it as tenant by the Decree Holder. They have claimed that rent from December, 1991 to March, 1994 had been accepted by the Decree-holder from M/s. Anupam Coffee and Refreshment House and rent receipt in token of the receipt of the rent was issued to in the name of the firm accepting it as tenant by the Decree Holder. Jugal Kishore Sharma the Judgment Debtor is the partner of M/s. Anupam Coffee Refreshment House a registered concern and the rent receipt filed by the Judgment-Debtor on the file of the civil suit showing himself to be a proprietor has to be explained by the objectors if they are permitted to lead their evidence. On perusal of the orders of the courts below I find that both the courts have taken into consideration the receipt of the payment of the rent and certified copy of the written statement filed by Jugal Kishore Sharma, judgment-Debtor in the civil suit and on the basis of the said documents, the objections of the objectors were dismissed. Admittedly, the objectors were not the parties in the suit and they were not in the knowledge of the documents allegedly filed by the plaintiff and/or the defendant Jugal Kishore Sharma in the suit. The objectors have legal right to submit their objections in the execution petition which are to be determined by the executing court in accordance with Rules 98, 100 and 101 of Order 21 CPC whatever documents are to be considered by the executing court in the execution petition, those cannot be taken for examination ex-parte against the interest of the objectors without affording reasonable opportunities to them. They have got right to lead evidence in support of their objections that they are in possession of the property in dispute as tenants. But both the courts below have acted in exercise of their jurisdiction with material irregularity by dismissing the objections in summary fashion. 10. It is well settled that right to adjudication under Rr. 97, 98 and 101 or Order 21 of the Code is a procedural right. The primary object for which the Court exists is to do justice between the parties. The approach of the court would be pragmatic but not pedantic or rigmarole. 10. It is well settled that right to adjudication under Rr. 97, 98 and 101 or Order 21 of the Code is a procedural right. The primary object for which the Court exists is to do justice between the parties. The approach of the court would be pragmatic but not pedantic or rigmarole. Order 21 Rule 97, must be treated to be an intimation to the Court as caveat to the decree holder or purchaser or a person claiming through him that look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and to adjudicate it under Rule 98 or Rule 101. In Smt. Santilata Paul v. Nanda Kishore Mukherjee, AIR 1981 Calcutta 219, the learned Single Judge held that in view of the provisions of amended Rule 101 of Order 21 of the Code, the question of title raised by the objector can be gone into and decided. The learned Single Judge of Sikkim High Court in Ram Chandra Verma v. Manmal Singhi and another, AIR 1983 Sikkim 1, has taken similar view. In Bhanwar Lal v. Satyanarain and another, (1995) 1 Supreme Court Cases 6, their Lordships have held that a reading of Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. Their Lordships of the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad faiswal and another, (1997) 3 Supreme Court Cases 694, has observed that in detail the statutory scheme envisaged by Order 21, Rule 97 CPC clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity or proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete Code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves. In Shreenath and another v. Rajesh and others, (1998) 4 Supreme Court Cases 543, their Lordships have held that both under the pre and post 1976 amendment law of the Code of Civil Procedure, the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself. The provisions of old Rule 100 or new Rule 99 will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. 11. The provisions of old Rule 100 or new Rule 99 will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. 11. In N.S.S. Narayana Sarma and others v. Goldstone Exports (P) Ltd. and others, (2002) 1 Supreme Court Cases 662, their Lordships while considering the provisions of Order 21 Rules 97 to 101 of the Code have held that in Rule 101 it is categorically declared that 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. Further, it was observed that the legislature has enacted the provision within view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of a execution proceeding. They cannot shirk its responsibility by skirting the relevant issues arising in the case. In H. Seshadri v. K.R. Natarajan and another, (2003) 10 Supreme Court Cases 449, their Lordships while considering the scope and ambit of Order 21 Rules 99 and 100 of the Code have observed that for the purpose of considering an application under Order 21 Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise. 12. In the light of the above noted settled proposition of law in the aforesaid judgments, in the present case both the courts below have failed to exercise the jurisdiction vested in them without determining the right of the objectors in the property in dispute as tenants as they have not claimed their tenancy right through Jugal Kishore judgment-debtor. 13. Mr. S.V. Sharma, learned Counsel for the decree holder has placed reliance in a judgment of the Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 Supreme Court 1754, to contend that the adjudication mentioned in Order 21, Rule 97(2) of the Code need not necessarily involve a detailed enquiry or collection of evidence and the Court can make the adjudication on admitted facts or even on the averments made by the objector. One can have possibly no quarrel with this established proposition of law, but herein this case, both the courts below have placed reliance on the documents which were foreign to the execution proceedings without adducing evidence by the decree-holder and the objectors. Thus, the ratio of the said judgment shall not sustain the orders of the courts below. 14. As noticed in the earlier part of this order, the objectors have not admitted that Jugal Kishore Judgment-debtor was occupying the premises in dispute as an independent tenant. It was their specific claim in the objection petition that the judgment-debtor was one of the partner of the concern and the partnership firm was the tenant of the premises in dispute. In that view of the matter, it was the duty of the executing Court to direct the parties to adduce the evidence for such determination and not to rely upon the documents placed by the decree holder and judgment debtor on the file of the Civil Suit in which the objectors were not the parties without giving them opportunity to lead evidence in support of their objections. 15. 15. The ratio of the decision in Paqidi Padmavathi and another v. Kanala Nagaraju and others, 2004 (1) Civil Court Cases 559 (Andhra Pradesh), relied upon by the learned Counsel for the decree holder is based upon the observation of their Lordships in Silverline Forum Private Ltd. case (supra) and the said decision is rendered on the facts and circumstances of the matter involved therein. 16. The next contention of the learned Counsel for the decree holder was that their counsel had only raised one objection before the First Appellate Court as recorded in paragraph-8 of the order, this Court will not permit the objector to raise other objections does not merit acceptance. I am afraid to accept this contention. The objections raised by the objectors in their objection petition are to be determined by the executing Court on its own merit. I have examined the observation made by the learned District Judge in paragraph-8 of the order. It has no where been indicated that the learned Counsel appearing for the objectors had made any statement that he had not pressed the other objections raised by the objectors in the objection petition nor it is indicated that how the concession was made by the learned Counsel not to assail the impugned order of the executing Court on other grounds. In support of my observation support can be derived from the decision of the Supreme Court in United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others, 2002 ACJ 1441. 17. No other point was urged by the learned Counsel for the parties. 18. For the above said reasons and observations, order dated 8.12.2003 passed by Civil Judge (Jr. Division), Kandaghat in Case No. 3-K/11 of 2003 and 4-K/11 of 2003 dismissing the objection petition of the objector under Order 21 Rule 97 CPC and appellate Order dated 12.4.2004 passed by learned District Judge in Case No. 6-S/14 of 2003 affirming the order of the executing Court are both unsustainable and accordingly set aside. The objection petition filed by the objectors is ordered to be restored to its original number. The executing Court shall decide the objections in accordance with law on their merits after giving opportunity to the parties to lead their evidence. It is made clear that any observation made in this order shall not be construed an expression of opinion on the merits of the objection petition. The executing Court shall decide the objections in accordance with law on their merits after giving opportunity to the parties to lead their evidence. It is made clear that any observation made in this order shall not be construed an expression of opinion on the merits of the objection petition. CMP No. 91 of 2004. 19. Interim order dated 11.6.2004 stands vacated. 20. The record of the Courts below be sent back by the Registry immediately. 21. The parties are directed through their learned Counsel to appear before the executing court on 13th August, 2004. Revision allowed.