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2008 DIGILAW 220 (KAR)

Venkatarayappa v. G Muniyappa

2008-04-04

A.N.VENUGOPALA GOWDA

body2008
ORDER Venugopala Gowda, J. In this writ petition, legality of the order dated 01.02.2005 passed in Execution Petition No. 18/2002 by the learned Civil Judge (Jr. Division), Chintamani has been questioned by the decree holder/ petitioner. Respondents 2 to 9 are the judgment debtors. Respondent No.1 had filed IA No.6 under Order 21, Rule 97 of CPC in the execution case to adjudicate his right to the suit property by holding an enquiry. 2. Brief facts necessary for consideration and disposal of this writ petition, as could be gathered from the record are: Petitioner had instituted O.S.No.113/1987 in the Court of the then Munsiff, at Chintamani, for decree of permanent injunction against respondent Nos.2 to 9, which was decreed on 25.03.1995. The said decree was questioned in RA No.13/1995 ,which after hearing was dismissed on 07.12.2001. Petitioner has filed Execution No.18/2002 to take action against respondents 2 to 9, alleging willful disobedience even after the decree for permanent injunction was passed against them. In the execution case, 1st respondent herein has filed IA No.6 under Order 21, Rule 97 to hold an enquiry and adjudicate his right. Since the Executing Court had posted IA No.6 for hearing, 1st respondent has filed IA No.7 under Section 151 CPC to hold an enquiry of himself and his witnesses to prove the allegations made in IA No.6 and to decide the matter on merit. I.A. No.7 was contested by the petitioner/decree holder. Considering IANo. 7 and objections thereto, Executing Court has allowed I.A. No.7 directing the applicant and decree holder to proceed with the enquiry on I.A. No.6. Contentions: 3. Sri G. Papi Reddy, learned Counsel appearing for the petitioner contended that, the decree passed in the original side having been affirmed by the Appellate Court, the same having attained finality, since meddling with the property by respondents 2 to 9 continued, execution proceedings were initiated against the judgment debtors, that the 1st respondent who has no right, cannot obstruct the execution proceedings. He contended that respondent No. 1 without showing prima facie legal right and possession over the property by producing material Proof, can not seek enquiry into the non existing right and adjudication of the claim is wholly unnecessary. He contended that respondent No. 1 without showing prima facie legal right and possession over the property by producing material Proof, can not seek enquiry into the non existing right and adjudication of the claim is wholly unnecessary. He contended that, provision under Rule 97 of Order 21 is not available for a person who is not a party to the proceedings and hence IA No.6 filed by 1st respondent is patently bad in law and the same is liable to be dismissed without holding any enquiry. He relied on the decision of this Court in the case of JESARAJ GHASIJMAL BETAL Vs. AHAMMAD HUSSEIN, ILR 1986 Kar 2647. He contended that the lower Court acting illegally and in excess of the jurisdiction, has allowed IA No.7 without considering the rights of the petitioner. 4. Per contra, Smt. S. Susheela, learned Counsel appearing for the respondents contended that, the petitioner has no right over the property, that subsequent events have taken place in which it has been clearly held that, the petitioner as having no right, title and interest over the property claimed in O.S. No.113/1987, that there is suppression of material facts and record by the petitioner and initiation of execution proceedings before the Executing Court is bad and illegal. She further contended that, since there was abuse of due process of law by the petitioner to suit his convenience, IA No.6 was filed in the execution case seeking adjudication of right of 1st respondent, by holding an enquiry. The Executing Court instead of ordering enquiry, posted IA No.6 for hearing itself, after noticing which, IA No.7 was filed to hold an enquiry into the matter, to establish the case pleaded in IA No.6. She contended that, after noticing the fact that, an enquiry in respect of the matters stated in IA No.6 is called for and without holding enquiry, IA No.6 cannot be decided, the Executing Court has passed the impugned order, which cannot be termed as illegal nor passed in excess of jurisdiction. Learned Counsel relied on the decisions of the Apex Court and this Court in support of her contentions. 5. Considering the rival contentions and record of the case, the point that arises for my consideration is: Whether the Executing Court has committed any illegality in ordering to hold enquiry into the claim/objections raised by a third party to the execution? Reasons: 6. 5. Considering the rival contentions and record of the case, the point that arises for my consideration is: Whether the Executing Court has committed any illegality in ordering to hold enquiry into the claim/objections raised by a third party to the execution? Reasons: 6. 1st respondent has filed IA No.6 under Order 21, Rule 97 CPC in the Executing Court, objecting the execution of the decree by the petitioner. In the affidavit accompanying IA No.6, it is stated that he was not a party to the proceedings, he has got an independent right over the petition schedule property along with the public, that the suit property is a tank bed area over which, no person has got absolute right, that the decree holder and the judgment debtors by collusive acts, have obtained a fraudulent decree. It was claimed that his right has to be adjudicated by holding an enquiry, as he was not a party to the original/appellate proceedings. The said application was opposed by the petitioner. 7. In R.S.A. 394/2002 filed against the decree passed in O.S. No.113/1987 and confirmed in RA 13/1995, in favour of the petitioner, this Court in the judgment dated 6.4.2004 has held as follows: “However, it is observed that any decree that has been granted by the Trial Court or which has been confirmed by the lower appellate Court will not enure to the benefit of the respondent-plaintiff, if ultimately the grant made in favour of the plaintiff is set aside by the competent Court or authority.” 8. Petitioner and another person had initiated proceedings concerning the suit property before Tahsildar, Chintamani, against some of the respondents herein. The Tahsildar, Chintamani by an order dated 31.01.2001 passed in case No. LND.CR.36:97-98, has cancelled the grant dated 24.5.1985 relating to 2 acres 18 guntas of land, in Sy. No.25 of Channakeshavapura, made in favour of the petitioner. Petitioner and another person had preferred an appeal against the said order in RA(Chin):85:2000-01 before the Assistant Commissioner, Chikkaballapur Sub-Division. The said authority by an order dated 2.7.2001 has dismissed the appeal. Subsequently petitioner had filed RA 152/2001-02 before the Deputy Commissioner, Kolar District, under Section 50 of the Karnataka Land Revenue Act, 1964 questioning the cancellation of the grant by Tahsildar and its said affirmation by the Assistant Commissioner. The said authority by an order dated 2.7.2001 has dismissed the appeal. Subsequently petitioner had filed RA 152/2001-02 before the Deputy Commissioner, Kolar District, under Section 50 of the Karnataka Land Revenue Act, 1964 questioning the cancellation of the grant by Tahsildar and its said affirmation by the Assistant Commissioner. The Deputy Commissioner by an order dated 3.2.2006 has dismissed the appeal and has ordered to take over the property to the custody of the Government and to maintain the same as “tank bed”. The said order appears to have attained finality as no material is produced before me, showing the challenge thereto, before any higher Forum. 9. From the said proceedings it is clear that, there is prima facie dispute with regard to the right of the petitioner to execute the decree passed in O.S. No.113/1987 dated 23.05.1995. Petitioner has not brought to the notice of the Executing Court the said proceedings, which have taken place in respect of the suit property before the Revenue Authorities. From the perusal of the said orders passed by the Revenue Authorities, it is prima facie clear that, the claim made by the petitioner to the suit property has become questionable since the grant of the property made in his favour has been cancelled, which has been affirmed by the higher authorities. In the said background also keeping in view the observations made on 6.4.2004 in RSA 394/ 2002, IA No.6 filed in the Executing Court by the 1st respondent requires consideration. Since the lower Court had posted IA No.6 for hearing of arguments, IA No.7 was filed with a prayer to hold an enquiry, to prove the allegations made in IA No.6 and to decide the matter thereafter. The Executing Court, has rightly arrived at the conclusion that for proving the allegations made by the applicant in IA No.6, an enquiry is required to be held, to find out as to whether the decree holder is cultivating in “Kera Angala” or whether the applicant has got right which could be ascertained only by conducting an enquiry and without such enquiry the right, of the applicant cannot be decided. 10. 10. In the case of Jesraj Ghasimal (supra) decided by learned single Judge of this Court, the facts were that the petitioner therein, had obtained an order of eviction against respondent No.3 and after expiry of the time granted to the tenant to vacate, had sued out execution for delivery of possession, the Executing Court had issued warrant for delivery of possession, at which stage application under Order 21, Rule 97 and 98 of CPC was filed by respondents 1 and 2 therein, which was objected to by the decree holder, which upon consideration was dismissed holding that it was incompetent. The order was questioned in appeal, which was allowed setting aside the order passed on IA I by the Executing Court. The said order of the Appellate Court, was challenged in the revision petition, considering which, the learned Single Judge has held as follows: “Therefore, the only persons, who can file an application under Order 21, Rule 97 of the Code of Civil Procedure, are (1) the holder of a decree for possession and (2) the purchaser of any such property sold in execution of a decree. No other person has got a right to file such an application. In this case IA is filed by respondents 1 and 2, who claim to have purchased 1/4th share in the property and claim to have been put in possession of the property by judgment-debtor respondent No.3 on 1.4.1986. Therefore, respondents 1 and 2 cannot be said to be the holders of the decree for possession, because they have not obtained the decree. Further respondents 1 and 2 cannot be considered to be the purchasers of the property sold in execution of the decree, because admittedly they claim to have purchased the property by private arrangement. Therefore, respondents 1 and 2 do not fall within any one of the categories mentioned in Rule 97 of Order 21 of the Code of Civil Procedure.” 11. In the case of BRAHMDEO CHA UDHARY Vs. RISHlKESH PRASAD JAISWAL AND ANOTHER, AIR 1997 SC 856 , the Apex Court has held as follows: “5. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. RISHlKESH PRASAD JAISWAL AND ANOTHER, AIR 1997 SC 856 , the Apex Court has held as follows: “5. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualize that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the, decretal property might have got actually disposed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before’ the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in, the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guard 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 proceeding and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rules 97 to 103 would remain a complete code and the some remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves.” (Italic’s is by me for emphasis) 12. In the case of SILVERLINE FORUM PVT. LTD., Vs. RAJIV TRUST AND ANOTHER, AIR 1998 SC 1754 , the Apex Court has held as follows: “12-13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” (Italic’s is by me for emphasis) 13. In the case of SREENATH AND ANOTHER Vs. RAJESH AND OTHERS, AIR 1998 SC 1827 considering the question, whether the 3rd party in possession of the property claiming independent right as a tenant, not a party to the decree under execution could resist such decree by seeking adjudication of his objection under Order 21, Rule 97 CPC, it has been held as follows: “10. RAJESH AND OTHERS, AIR 1998 SC 1827 considering the question, whether the 3rd party in possession of the property claiming independent right as a tenant, not a party to the decree under execution could resist such decree by seeking adjudication of his objection under Order 21, Rule 97 CPC, it has been held as follows: “10. Under sub-clause Order 21, Rule 35, the Executing Court delivers actual physical possession of the disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, Rule 99 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person”. This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicant’s claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 shall be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the executing proceedings. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the executing proceedings. We find the expression “any person” under sub-clause (1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21, Rule 97. Thus by the use of the words’ any person’ it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger.” (Italic’s is by me for emphasis) 14. In the case of C. SOME GOWDA Vs. C. RANGA RAO AND OTHERS, ILR 2004 Kar 705, considering whether the Executing Court was justified in dismissing the application of the obstructionist, while determining the question of title of the immovable property as envisaged under Order 21, Rule 101 CPC it has been held as follows: “7. In the event of resistance or obstruction offered by any person the remedy available to the Decree Holder is under Order 21, Rule 97 for possession. Order 21, Rule 97 is a statutory remedy both to the Decree Holder as well as to the objector to have their respective say in the matter and get the proper adjudication before the executing Court. This provision is enacted with a view to see that multiplicity of proceedings and parallel proceedings are avoided. It is also possible that a stranger to the decree could claim an independent right, title and interest in the decretal property and can offer his resistance before getting actually dispossessed. He could also equally agitate his grievance and claim for adjudication of his right, title and interest in the decretal property. This is precisely what happened in the present case. He could also equally agitate his grievance and claim for adjudication of his right, title and interest in the decretal property. This is precisely what happened in the present case. The obstructionists filed their applications believing that they had a right, title and interest over the property.” From the principles laid down in the decisions noted above, it is clear that when a person claiming title to the property in his possession obstructing the attempt by the decree holder to dispossess him from the suit property, the Executing Court is competent to consider all questions raised by the person offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 of CPC is to be treated as a decree. From the perusal of the averments made in IA No.6 filed by the 1st respondent, in the Executing Court, he is claiming right to the property in dispute. From the material placed on record by the 1st respondent, the right of the decree holder to the property in question prima facie appears to be clouded. The proceedings before the Revenue Authorities were at the instance of the decree holder, wherein findings recorded are adverse to him. Hence, the order of the Executing Court posting the case for adjudication of the claim made in IA No.6 cannot be held to be illegal. In my view, the Executing Court has not committed any excess jurisdiction vested in it, in passing the impugned order. In view of the declaration of law by the Hon’ble Supreme Court the decisions referred to supra, which are binding precedents under Article 141 of the Constitution of India, with due respect, I am unable to follow the decision rendered in the case of Jesraj Ghasimal (supra). In the result, writ petition is devoid of merit and is dismissed with costs. Advocate fee is fixed at Rs.l,000/-. It is made clear that the Executing Court shall decide IA No.6 on its merit, without being influenced in any manner by the findings and observations made herein, which are limited for consideration of the contentions raised before me and the same shall not be treated as expression of any opinion on the merit of the matter, pending before the Executing Court.