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2010 DIGILAW 719 (MP)

Ranchhod v. Hukumji

2010-07-20

PRAKASH SHRIVASTAVA

body2010
JUDGMENT 1. This second appeal under section 100 of Civil Procedure Code has been filed against the judgment dated 14th November, 2007, passed by the Court of First Additional Distt. Judge, West Nimar, Mandleshwar, in Regular First Appeal No. 20-Al05, dismissing the appeal and affrrming the judgments of the trial Court. 2. Brief facts are that the appellants had filed suit for declaration in respect of agricultural land, Survey No. 355 area 5.66 acres. The respondent No. 1-Hukumji had, filed counter claim in the suit, which was decided by the judgment dated 16.3.2002, holding the respondent No.1 entitled for possession of suit land and Mesne profit of Rs. 2000/-. The first appeal by the appellants was rejected on 26.4.2003 and the Second Appeal was dismissed on 14.11.2003. The respondent No.1 applied for execution of the decree in which the appellants filed objection under Order 41, Rule 97 of the Civil Procedure Code. The Executing Court by order dated 1.4.2005 while rejecting the objection held that the judgment -debtor had, no right to file the objection and that during the pendency of suit he had not raised objection relating to identity of the property. The First Appeal preferred by the appellants/judgment -debtor has been dismissed by impugned judgment, holding that the appellants are not a third party, therefore, they have no right to file objection under Order 41 Rule 97 of the Civil Procedure Code. 3. This Court by order dated 5.8.2008 has admitted the appeal on the following substantial question of law :-. "Whether under Order 21, Rule 97 the expression 'any person' would include the judgment-debtor to resist/obstruct the execution of the decree passed in favour of the plaintiff?" 4. The following additional substantial question of law was formulated by this Court by order dated 10.4.2010 : "Whether the first appellate Court has passed the judgment under appeal in accordance with the provisions contained in Order 41, Rule 31 of the Civil Procedure Code?" 5. The aforesaid substantial question of law are decided as under : First Substantial question of law 6. Learned counsel appearing for the appellant submitted that under Order 21. Rule 97 the expression 'any person' include the judgment-debtor also, therefore, the Courts below have committed an error in rejecting the objection submitted by the appellants. 7. The aforesaid substantial question of law are decided as under : First Substantial question of law 6. Learned counsel appearing for the appellant submitted that under Order 21. Rule 97 the expression 'any person' include the judgment-debtor also, therefore, the Courts below have committed an error in rejecting the objection submitted by the appellants. 7. Learned counsel appearing for the respondent No.1 submitted that no error has been committed by the Courts below in rejecting the objection and the appeal. 8. I have heard learned counsel for the parties and perused the record. 9. Order 21, Rule 97 provides that in case, where the decree holder having decree for possession of immovable property is resisted or obstructed by 'any person' obtaining possession of the property. he can make an application to the Court complaining of such resistance or obstruction. Under Order 21 Rule 97 any party in possession of the property resisting execution of the decree can seek adjudication of his objection. The word 'any person' in Rule 97 of Civil Procedure Code has not been assigned narrow meaning only to cover the third parties and stranger but all persons resisting delivery of possession are covered within its meaning and such a person can also be the judgment-debtors in a given case. 10. The Supreme Court in the matter of Bhanwar Lai v. Satyanarain and another, reported in AIR 1995 SC 358 , has held that any person includes the judgment-debtor also. The Supreme Court has in the matter of Bhanwar Lal laid down: "A reading 0f O.21 R. 97, Civil Procedure Code clearly envisages that "any person" even including the judgment-debtor irrespective of whether he claims derivative title from the judgment-debtor or set up his own right, title or interest de hors the judgment -debtor and he resists execution of a decree, then the Court in addition to the power under R. 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." 11. The Supreme Court in the matter of Shreenath and another v. Rajesh and others, reported in 1998 (2) JLJ 187 = AIR 1998 SC 1827 while considering the expression "any person" has held that :- "...................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". The Supreme Court in the matter of Shreenath and another v. Rajesh and others, reported in 1998 (2) JLJ 187 = AIR 1998 SC 1827 while considering the expression "any person" has held that :- "...................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. .............. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the Executive 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. 12. The Supreme Court in the matter of NSS Narayana Sanna and others v. Goldstone Exports (P) Ltd. and others, reported in (2002) 1 SCC 662 while considering the scheme of Order 21, Rule 97 and 99 of the Civil Procedure Code has held that :- "15................0n a fair reading of the Rule it is manifest that the legislature has enacted the provision with a 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 an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. " 13. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. " 13. As against this, learned counsel appearing for the respondent has placed reliance upon the judgment of the Supreme Court in the matter of Brahmdeo Chaudhary v. Rishikesh Prasad laiswal and others, reported in 1997 AIR SCW 685, in the matter of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, reported in (1998) 3 SCC 723 , and in the matter of Ranjeet Singh v. Banwarilal Samdasani, reported in 1999 (1) MPWN 36 . In these matters, it has been held that third party has right to file objection under Order 21, Rule 97, but it has not been laid down that the judgment-debtor has no right to raise objection under Order 21 , Rule 97. 14. It is worth noting that in the present matter, the appellants judgment debtor has raised a dispute about the identity of the suit property. He has not disputing the binding nature of the decree. Thus, in view of the aforesaid position in law it is held that the appellant judgment-debtor was covered within the meaning of 'any person' as contained in Order 21, Rule 97 and his objection under the said provision was maintainable. The Courts below have committed an error in rejecting the objection filed by the appellants on the wrong premises that the' objection by the judgment-debtor under Order 21, Rule 97 is not maintainable. The Second substantial question of law :- 15. Learned counsel appearing for the appellants submitted that the first appellate Court while passing the impugned judgment has completely ignored the provisions of Order 41, Rule 31 of the Civil Procedure Code and has dismissed the appeal without considering the material on record. 16. As against this, learned counsel appearing for the respondent submitted that no error has been committed by the first Appellate Court in dismissing the appeal. 17. Order 41 ,Rule 31 requires the Appellate Court to state in judgment the points for determination, the decision thereon, the reasons for decision and in case of the reversal decree, the relief to which the appellant is entitled. 17. Order 41 ,Rule 31 requires the Appellate Court to state in judgment the points for determination, the decision thereon, the reasons for decision and in case of the reversal decree, the relief to which the appellant is entitled. Even when the first Appellate Court affirms the judgment of the trial Court, it is required to comply with the requirement of Order 41, Rule 31 and non-observance of the requirement of Order 41, Rule 31 leads to infirmity in the judgment of the first Appellate Court. The aforesaid position in law is supported by the judgment 0 the Supreme Court in the matter of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others, reported in AIR 2003 SC 351 , in the matter of Gannmani Anasuya and others v. Parvatini Amarendra Chaudhary and others, reported in (2007) 10 SCC 296 , in the matter of Sailajananda Pandey and another v. Lakhichand Sao and others, reported in AIR (38) 1951 Patna 502, in the matter of Vishwas Balu and others v. Ghasiram Ramratan Jajum and others, reported in AIR 1975 Bombay 278 and in the matter of Dwarika Prasad Marwari v. Slldarshml Pd. Chaudhary and others, reported in AIR 1984 Patna 274. 18. In the present case, the impugned judgment indicates that the first appellate Court has not complied with the provisions contained in Order 41. Rule 31 of the Civil Procedure Code. The First Appellate Court not only dismissed the appeal by holding that the objections filed by the appellants were not maintainable under Order 21 , Rule 97, but without considering the issue in detail has by short order affirmed the judgment of the trial Court on merits also. Thus, the judgment of the first appellate Court cannot be sustained on this ground also. 19. The record indicates that the respondent himself at the initial stage had filed the application I.A.No. 8992/2008, before this Court, stating that the judgment -debtor is covered by the expression 'any person' under Order 21 , Rule 97 of the Civil Procedure Code and a prayer was made to set aside, therefore, the impugned judgments and to remanded back the matter to the Executive Court for deciding the application dated 23.2.2005 afresh after recording the evidence. Since the appeal was admitted, therefore, no effective order on the said application could be passed. 20. In view of the aforesaid analysis, the appeal is allowed. Since the appeal was admitted, therefore, no effective order on the said application could be passed. 20. In view of the aforesaid analysis, the appeal is allowed. The order passed by the Executive Court as well as Lower Appellate Court are set aside and the Executive Court is directed to decide the application filed by the appellants under Order 21, Rule 97 of the Civil Procedure Code afresh, in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. The original record be sent back to the trial Court immediately. Parties are directed to appear before the trial Court on 16.8.2010. No Costs.