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Madhya Pradesh High Court · body

2008 DIGILAW 961 (MP)

Sanjiv Paliwal v. Sumitra

2008-08-01

U.C.MAHESHWARI

body2008
ORDER 1. Heard on IA No. 11713/07. This is an application on behalf of the appellant-objector under section 5 read with section 14 of the Limitation Act for condoning the delay in filing the appeal under Order 21 rule 103 of the CPC being aggrieved by the Order dated 2.4.2007 passed by XIth Additional District Judge Bhopal in Execution ease No. 32/07 whereby his objections filed under Order 21 rule 97 read with rule 98 of the CPC has been dismissed. Such appeal is filed barred by 86 days. 2. It is undisputed fact on record that appellant being objector has filed this appeal against his mother respondent No.1, who being decree holder of the impugned decree under execution of the same has taken over the possession of the decreetal accommodation from the judgment debtors the respondents No.2 and 3. 3. As per averments of this IA, earlier to filing the objections under Order 21 rule 97 of the CPC in the executing Court, while pendency of the suit in which the impugned decree has been passed, the present appellant filed an application in such suit under Order 1 rule 10 of the CPC to implead him as party stating that he is in possession of the accommodation. Such application was dismissed by the Xth Additional District Judge, Bhopal in RCS No. IS-A/OS vide order dated 2.5.2005. The same was challenged by the appellant before this Court through W.P. No.11844/05. On consideration the same was dismissed vide order dated 22.3.2006 holding that the appellant is not in possession of such property in the following words: "On considering the submissions of the counsel for parties, it is found that unfortunately the petitioner is trying to contest the suit against his mother and on perusal of the documents and the impugned order, I do not find any infirmity with the same. The Trial Judge has observed that the petitioner has been unable to establish his possession or any title to the disputed shop whereof and has correctly rejected the application. The order passed by the trial Court is based on sound and cogent reasons. With the aforesaid observations, the petition is dismissed as sans merit. No order as to cost." 4. The Trial Judge has observed that the petitioner has been unable to establish his possession or any title to the disputed shop whereof and has correctly rejected the application. The order passed by the trial Court is based on sound and cogent reasons. With the aforesaid observations, the petition is dismissed as sans merit. No order as to cost." 4. Subsequent to it, the impugned judgment and decree was passed in such suit in favour of respondent No. I the mother of the appellant, and against the respondent No.2 and 3, on which the appellant filed the Civil Original Suit No. 70-A/07 in' the Court of Xth Additional District Judge, Bhopal challenging the aforesaid decree by filing the suit for declaration and perpetual injunction, declaring him to be in possession of the disputed accommodation and such decree is not binding on him and in pursuance of it the prayer for issuing perpetual injunction restraining the respondent No.1 from taking the possession of accommodation under execution of such decree was also prayed. In pendency of suit he also filed an application for interim injunction but could not get success and the same was dismissed by order dated 7.9.2007, and ultimately such suit has also been dismissed by Xth Additional District Judge. Bhopal vide judgment dated 18.3.2008 in Civil Original Suit No. 44-A/07 (No.70-A/07 in the Court of Vth Additional District Judge, Bhopal). 5. The appellant in pendency of his aforesaid suit filed the impugned application under Order 21 rule 97 read with rule 98 of the CPC in the aforesaid execution proceedings of the respondent No.1 stating that he being in possession of the decreetal shop had right to object the execution of the decree. 6. It does not appear from the above-mentioned facts that his aforesaid earlier application filed under Order 1 rule 10 of the CPC in the decreetal suit of the respondent No.1 and on dismissing the same by trial Court, against such order the aforesaid WP 1844/05 and on dismissal of the WP the aforesaid Civil Original Suit No. 70-A/07 (New No. 44-A/07) were filed by the appellant before the wrong forum. Besides this, in view of the earlier findings of this Court given in the aforesaid writ petition holding that the possession of the decreetal accommodation was not with the appellant and that is why the suit for declaration and perpetual injunction was filed by the appellant. I have not been apprised by any provision by the appellant counsel showing that the aforesaid earlier application under Order 1 rule 10 of CPC or the suit filed by him were not entertainable by the civil Court or out of them any of the proceedings was prosecuted before any wrong forum. If any judgment and decree regarding dismissal of such suit has been passed then the affected party like appellant has a right to challenge the same before the appropriate forum. But because of such dismissal of the suit by trial Court, in the present matter it could not be held that the appellant was prosecuting such suit or any earlier proceedings bonafidely before the wrong forum. In such premises section 14 of the Limitation act is not helping to the appellant and same cannot be invoked for condoning the alleged delay in filing the appeal. 7. So far condoning the delay under section 5 of the Limitation Act is concerned, it is suffice to say that the ground for condonation of alleged delay was taken in the application only in the light of the provision of section 14 of the Limitation Act. the application has been filed on such ground in forgoing para. Besides this, I have not found any other sufficient ground on which by invoking section 5 of the Limitation Act, the alleged delay may be condoned. Although, I am of the view that the litigation should not be struck down merely on the question of limitation but in the available circumstances, in the lack of any sufficient cause, the aforesaid IA could not be allowed and the same deserves to be dismissed. 8. However, on examining the case on merits, till some extent I have gone through the appeal memo, impugned order and the papers placed by the parties on record. 8. However, on examining the case on merits, till some extent I have gone through the appeal memo, impugned order and the papers placed by the parties on record. I have not found any circumstance, showing that the appellant remained in possession of the disputed property at any point of time in his independent right, on which he could have claimed his possession over the property for resisting the decree passed by the competent Court in favour of respondent No.1 and against respondent No.2 and 3. In such premises and in the absence of any independent or individual right of the appellant to challenge the impugend decree, the appellant's application could not be entertained by the executing Court under Order 21 rule 97 of the CPC and the same was rightly dismissed by the executing Court. In such premises appellant did not have any case to object or resist the impugned decree. It is settled proposition of law that person resisting the decree must come with his independent right and if he did not have such right, his application under Order 21 rule 97 read with rule 98 of the CPC could not be entertained. Even elaborate inquiry is not necessary in such case and executing Court under its discretion may dismiss such application at the initial stage without making any elaborate inquiry. Such principle is laid down by the apex Court in the matter of Silverline Forum Pvt. Ltd. v. Rajiv Trust, AIR 1998 SC 1754 in which it was held as under: " 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." 9. In view of the aforesaid discussion in the lack of any sufficient cause for condoning the delay, the aforesaid IA No. 11713/07 deserves to be and is hereby dismissed. of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary." 9. In view of the aforesaid discussion in the lack of any sufficient cause for condoning the delay, the aforesaid IA No. 11713/07 deserves to be and is hereby dismissed. However, in view of the aforesaid discussion, it is mentioned that even otherwise the appellant did not have any case, requiring any consideration at this stage. In such premises, by dismissing the aforesaid IA in pursuance of that the appeal is also dismissed. In view of dismissal of the appeal other pending I.As do not require any further consideration, hence the same are hereby disposed off.