Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 2305 (ALL)

HARILAL YADAV v. GHANSHYAM SHUKLA

2005-11-24

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. ( 1 ) HEARD Sri. N. D. Kesari, learned counsel for the petitioner and Sri K. N. Mishra for the respondents. ( 2 ) THIS petition under Article 226 of the constitution of India has been preferred challenging the orders dated 5. 8. 2005 passed by the revisional court and 23/4/2005 passed by the executing court. ( 3 ) THE background facts giving rise to the dispute between the parties are that in the execution of an ex parte decree being execution case No. 19 of 1992 the petitioner as a third party resisted the possession over the property in dispute for which the writ of possession was issued by the executing court. The petitioner filed his objections under Order XXI Rule 99 C. P. C. stating that the property was continuing in his possession since 2/9/1972 when he obtained it from Deo Narain, the owner of the property, after getting an agreement of sale executed by him after receiving a sum of rs. 2,450. 00. The remainder sale-consideration of Rs. 50. 00 was to be paid later on. During the continuance of possession over the property he constructed a house thereon and is enjoying the property in the capacity of its owner. He was not party to Suit No. 498 of 1986 for specific Performance of Contract in which exparte decree was passed. In execution of the aforesaid ex parte decree dated 7/3/1992 in favour of the predecessor of respondent No. 1, the executing court had issued writ of possession over the said property. The delivery of possession was resisted and objections were filed. The learned counsel contends that since those objections were pending before the executing court and they had not been disposed of on merits, the stay order granted in the execution should not have been vacated in his absence by passing the impugned order dated 23/4/2005. In the revision filed against this order, the District Judge has also summarily rejected it on 5/8/2004 holding that since the execution case has already been decided in full satisfaction of decree, the objections have no meaning. In the revision filed against this order, the District Judge has also summarily rejected it on 5/8/2004 holding that since the execution case has already been decided in full satisfaction of decree, the objections have no meaning. It is further submitted on behalf of the petitioner that the very delivery of possession through the court in execution of the aforesaid exparte decree will not bring an end to the filing of the objections under Order XXI rule 99 C. P. C. The court is legally obliged to pass an order disposing of such objections on merits which the courts below have failed to discharge. ( 4 ) IN the light of the aforesaid arguments placed by the learned counsel for the petitioner, the provisions of Order XXI, Rules 97, 98, 99 and that of Rule 101 of the Code of Civil Procedure appear to be quite relevant. In the present context and are quoted below: 97. 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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obtruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. Orders after adjudication.- (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 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. 101. Question to be determined,-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. ( 5 ) TOGETHER reading of the aforesaid rules goes to make it more than evident that such resistance in an execution proceeding in a decree for delivery of possession when comes on the floor of the Court by way of objections raised by a third party, the Court acquires jurisdiction to decide it as a question of title between the parties and adjudication given thereon becomes final even with regard to the question of title over the property in dispute. In this context, the case law of Anwarbi v. Pramod D. A, Joshi and Brahmadeo chaudhary v. Rishikesh Prasad Jaiswal are quite relevant. In this context, the case law of Anwarbi v. Pramod D. A, Joshi and Brahmadeo chaudhary v. Rishikesh Prasad Jaiswal are quite relevant. While dealing with such matter of objections made by third party and objections filed in Brahmadeo Chaudhary (supra)the Honble Apex Court has observed that a third party making resistance in the execution of decree of delivery of possession is squarely covered under Order XXI Rule 97 (1) of the code and, therefore, a total stranger to a decree can move the Court for registering his resistance of delivery of possession and it becomes a lis between decree holder and the said objection under Order XXI Rules 97 and 99 C. P. C. After such a lis between the parties has arisen, it has to be adjudicated upon as enjoined by Order XXI Rule 97 (2) of the Code. The procedure for adjudicating such a lis has to be culled out from the remaining succeeding rule of Order XXI C. P. C. The adjudication has to be made following the gamut of rules of procedure laid down by Order XXI, Rule 97 and Rule 103 of C. P. C. On adjudication if the court finds the resistance or obstruction being without a just cause, then obstruction has to be removed by it under Order XXI Rule 98 (2)C. P. C. It is furtehr observed in the aforesaid case that if the stranger to the decree is already dispossessed of the suit property relating to which he claims his right and title in that case his remedy lies in filing of the application under Order XXI, Rule 99 C. P. C. If such application is made after adjudication, then as enjoined by Order XXI Rule 98 (1) C. P. C. the executing court can direct the stranger to be put in possession of the property and such an order would be deemed to be a decree as laid down under Order XXI Rule 103 C. P. C. and would be an appealable order before the appropriate forum. ( 6 ) IN the case of Anwarbi (supra) the honble Apex Court has further held that such person obstructing or resisting the execution of decree for possession if has filed objections he should not be dispossessed till his rights as demonstrated in his objections are adjudicated upon and proceedings terminated in favour of the decree-holder. ( 6 ) IN the case of Anwarbi (supra) the honble Apex Court has further held that such person obstructing or resisting the execution of decree for possession if has filed objections he should not be dispossessed till his rights as demonstrated in his objections are adjudicated upon and proceedings terminated in favour of the decree-holder. Therefore, in the aforesaid view of the matter and the propositions of law as laid down it becomes evident that a third party to a decree of delivery of possession if resists against the execution of a decree and puts obstructions, his objections have to be heard and adjudicated upon before the actual delivery of possession takes place in pursuance to the said execution of decree. Such person making obstructions and raising resistance as a right to place his objections before the executing court under Order 21 Rule 97 as well as Order 21 rule 99 C. P. C. His objections are to be specially heard and adjudicated upon the delivery of possession over the property cannot validly be handed-over to the decree-holder in pursuance to the said decree before such objections are disposed in accordance with the procedure laid down under Order XXI Rule 98 (2) and Rule 101 of the Code of Civil Procedure. ( 7 ) A perusal of the impugned orders goes to indicate that the merits of the objections filed before the executing court have not been gone into by the courts below. The order passed by the executing court is extremely laconic and slip shod, whereas the summary disposal of the revision done by the District Judge is also extremely erroneous. The stay order which has been vacated by the executing court through the impugned order is uncalled for. If the petitioner had his dilapidated house on the spot, his objection of the resistance of delivery of possession should have been taken up and decided on merits as such. The District Judge while dismissing the revision could have taken notice of all these factors involved in the matter and as such I find it wholly justifiable to interfere with the orders passed by the courts below in so far as they amount to the disposal of the entire matter including the objections filed under Order XXI Rule 97/99/sec. The District Judge while dismissing the revision could have taken notice of all these factors involved in the matter and as such I find it wholly justifiable to interfere with the orders passed by the courts below in so far as they amount to the disposal of the entire matter including the objections filed under Order XXI Rule 97/99/sec. 47 c. P. C. ( 8 ) THE petition is hereby disposed of finally with this direction that the executing court shall take up the objections of the petitioner and decide it after giving full opportunity of hearing to the parties and pass the order in accordance with law. Till the objections are not disposed of, the status quo over the property in question as on today, shall be maintained. The possession over the property in question of either of two parties, as is continuing today, shall continue till then. Petition allowed accordingly.