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Madhya Pradesh High Court · body

2009 DIGILAW 1027 (MP)

SOBHA MISRA v. VINOD KUMAR

2009-08-26

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellants / objectors have directed this appeal under Section 100 of CPC being aggrieved by the judgment and decree dated 14. 08. 2007 passed by District Judge, Betul in Civil Regular Appeal No. 9-A/2007 affirming the order dated 6. 3. 2007 and 20. 2. 2007 passed by Additional Civil Judge class-I, Betul in Execution Case No. l75-A/00 (T. D No. 23/06) dismissing their separate applications filed under Order 21 Rule 97 of CPC. ( 2. ) THE facts giving rise to this appeal in short are that the respondents No. 1 and 2 herein filed a Civil Original Suit No. 20-A/99 against the respondents No. 3 to 5 for eviction with respect of some premises the same was decreed by the trial court vide judgment and decree dated 29. 6. 2002, on challenging the same by the respondents No. 3 to 6 in their two separate Civil Regular Appeals No. 3-A/03 and 15-A/03 the the same were dismissed, thereafter respondents No. 3 to 6 filed S. A. No. 456/03, on consideration the same was also dismissed by this Court vide order dated 11. 1. 2005. Accordingly, aforesaid decree passed by the trial Court had affirmed against the respondents No. 3 to 6. Subsequently on filing the execution proceedings by the respondents No. 1 and 2 against respondents No. 3 to 6 for taking possession of the premises and recovery of the sum, the appellants herein respectively filed their separate applications under Order 21 Rule 97 of CPC stating that initially their father and the predecessor of respondents No. 3 to 6 namely Nandlal Tiwari was tenant in the disputed premises and after his death they along with respondents No. 3 to 6 inherited such rights in the disputed accommodation and in such capacity they are also in possession of such accommodation as a tenant. The aforesaid decree was obtained by the respondents no. 1 and 2 without impleading them to be the party as defendants, as such without giving any opportunity of hearing to them, hence such decree is neither binding nor executable against them and resisted the execution proceeding on such ground. ( 3. The aforesaid decree was obtained by the respondents no. 1 and 2 without impleading them to be the party as defendants, as such without giving any opportunity of hearing to them, hence such decree is neither binding nor executable against them and resisted the execution proceeding on such ground. ( 3. ) THE averments of such applications were opposed by the respondents No. l and 2 in their reply stating that the appellants are neither the tenant nor in possession of the disputed accommodation, hence, they did not have any locus- standi to resist the execution of the decree. It is also stated by the respondents that the present appellants never inducted in the tenant premises. The married daughter of the tenant could not be treated as a member of the family. The rent of the disputed accommodation was not paid for a longer period i. e. years together by any of the appellants. ( 4. ) AFTER hearing the parties on consideration the executing Court vide Order dated 6. 3. 2007 dismissed the applications of the appellants holding that they did not have any right to resist the execution of the aforesaid decree of eviction. On challenging both the orders jointly by the appellants before sub- ordinate appellate , court, after extending the opportunity of hearing the same was also dismissed. Thereafter the appellants have come forward to this Court with this appeal. ( 5. ) SHRI Neeraj Ashar. learned appearing counsel of the appellants after taking me through the judgments and decree passed in the aforesaid Civil Original Suit, which have been later upheld up to the second appeal, as stated above, said that it is undisputed fact on record that the appellants were not impleaded as defendants in the original suit at any stage of suit or in the appeal. While after the demise of nandlal Tiwari, the appellants being his daughters have also inherited the tenancy right in the disputed premises, in such premises such decree could not be executed against them but without considering such aspect both the Courts below have committed error in dismissing their objections filed under Order 21 Rule 97 of cpc. While after the demise of nandlal Tiwari, the appellants being his daughters have also inherited the tenancy right in the disputed premises, in such premises such decree could not be executed against them but without considering such aspect both the Courts below have committed error in dismissing their objections filed under Order 21 Rule 97 of cpc. He further said that the procedure prescribed under the provisions of Order 21 Rule 97 to Rule 99 of CPC have not been followed by the executing Court to consider their applications; as the opportunity to adduce the evidence was not extended to them and their objections have been dismissed without making any elaborate inquiry and such illegal order has been upheld by the first appellate court under the wrong premises and prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal Memo. He also placed his reliance,on reported decisions in the matter of "brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal" reported in AIR 1997 SC 856 and in the matter of municipal Council, Mau Vs. Mata Prasad Yadav reported in 1997 MPWN vol-1 Note 55. ( 6. ) HAVING heard the counsel at length, I have gone through the record, all the judgments and decree passed in Civil Original Suits and their respective appeals along with the impugned orders passed in execution case and also the judgment of first appellate Court. It is apparent that the aforesaid suit for eviction was filed on some available grounds including the ground of arrears of rent by the respondents No. l and 2 against the respondents No. 3 to 6 stating them to be in possession of the tenanted accommodation after the death of Nandlal Tiwari, their predecessor and the same was decreed up to the second appeal by this court. Thereafter on filing the execution proceedings by respondents No. 1 and 2 against the respondents No. 3 to 6 for taking possession of the disputed property and recovery of the arrears of rent, the impugned applications under Order 21 rule 97 of CPC were filed by the appellants to resist the execution of decree stating themselves to be the legal representatives of the deceased Nandlal Tiwari and without impleading them the decree has been obtained, hence the same is not binding against them. ( 7. ( 7. ) ARPET findings of both the Courts below appellant No. l being married daughter did, not have any right to inherit the tenancy right as member of the family of Nandlal Tiwari. Besides this at any point of time any of the appellants have not paid the rent to respondent No. 1 and 2. It is also held that in the eviction suit the persons who are in possession of the disputed accommodation and paying the rent as tenant to the landlord are only necessary parties. In such premises by holding that they were neither in possession of the premises nor paid the rent their applications were dismissed by the executing Court, on filing the appeal by them, the same were also dismissed by the appellate Court. ( 8. ) IN view of law laid down by the Apex Court in the matter of Kanji Manji Vs. The trustees of the Port of Bombay reported in (AIR 1963 S. C. 468), holding that quite notice to one of the joint tenant to determine the case and also the Suit for ejectment against one of the joint tenant is good, the approach of the Courts below does not appear to be perverse. As per concurrent findings of both the courts below the appellants could not prove their independent tenancy right by filing any documents showing they are in possession of the disputed accommodation as tenant. It is apparent fact on record that at any point of time either of the appellants has not paid the rent of the disputed accommodation to respondent no. l and 2. In such premises also the approach of the Courts below do not appear to be perverse. ( 9. ) SO for objection of the appellants counsel that without extending the opportunity to adduce the evidence their applications have been dismissed contrary to the settled proposition of law laid down by the Apex Court in Brahmdeo chaudharys case (Supra) is concerned, in view of aforesaid discussion, the principle laid down in cited case is not applicable here; the execution of the decree was resisted by the objectors in such case on the basis of some independent rights, title and interest in the decreetal property, which is not the situation here. Besides this in my opinion to decide such objections filed under Order 21 Rule 97 of CPC, the executing Court is not bound to extend the opportunity to the parties for adducing the evidence but if deems necessary then the Court can direct the party to adduce the evidence in support of such objections. Under the aforesaid provisions holding the inquiry does not mean to adduce the evidence but the inquiry means the satisfaction of the Court in the available circumstances with respect of objections raised by the objectors. In each case the Court is not bound to record the evidence or direct the parties to adduce the evidence in support of the objections. My aforesaid view is based on the principle laid by the Apex Court in the matter of Silverline Forum Pvt. L,td. Vs. Rajiv Trust and another reported in AIR 1998 S. C. 1754 in which it is 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. " ( 10. ) ON arising the occasion the aforesaid view has been further followed by this Court in the matter of Hamid Khan Ansari Vs. Lilabai reported in 2004 (2) MPLJ 310 . ( 11. ) IN the aforesaid premises, I have not found any perversity in the impugned , order of the executing Court as well as the judgments of the appellate Courts giving rise to any question of law much less the substantial question of law requiring any interference under Section 100 of CPC at this stage. Consequently, the appeal being devoid of any merits, the same deserves to be and is hereby dismissed at the stage of motion hearing. ( 12. ) THE appeal is dismissed as indicated above. Appeal dismissed.