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2010 DIGILAW 937 (KAR)

Eranna v. Sabjamma

2010-08-31

ANAND BYRAREDDY

body2010
ORDER Anand Byrareddy, J : The petition coming on for preliminary hearing, the petition is considered for final disposal, having regard to the fact that the respondents are served and are un-represented and given the facts and circumstances of the case. 2. The facts briefly narrated are as follows: The petitioner claims to be in possession of land in Survey No. 67/B, measuring 4 acres, of Hirekotnekal village, Manvi Taluk, Raichur District and that he has been cultivating the same for over 20 years. He was cultivating the land on share basis under respondent No. 3 and before under her husband, who had died earlier. Respondent No. 3 alongwith respondent Nos. 4 to 6, had sold the land to respondent No. 2, who was a minor at that time, through his mother. They had then migrated to another village and the petitioner was permitted to continue cultivation. On attaining majority, the second respondent entered into an agreement to sell the suit property to the petitioner for a consideration of Rs. 2.40 lakh and had received an advance consideration of Rs. 1.00 lakh. The petitioner was permitted to continue to cultivate the land. The petitioner claims to have paid the entire sale amount to the said respondent and claims that he is in possession as purchaser of the property though the sale deed has been executed. The petitioner therefore claims to be in possession of the suit property under the Agreement to Sell as well as on the earlier arrangement. It is claimed that the first respondent who is daughter of the third respondent and respondent Nos.4 and 5 being the brothers of the third respondent had filed a suit in O.S.27/2002 seeking partition and separate possession claiming a share in the above property. It is alleged that there was active collusion between respondent No.1, respondent Nos.3 to 7- who have accepted that the sale, in favour of the petitioner was illegal and that there was no authority to convey the property under the Agreement to Sell in favour of the petitioner. The suit was decreed ex-parte. Respondent No.1 is said to have filed an Execution petition in the Court of the Civil Judge(Jr.Dn.), Manvi, seeking delivery of possession of the land to her and a delivery warrant was issued. The suit was decreed ex-parte. Respondent No.1 is said to have filed an Execution petition in the Court of the Civil Judge(Jr.Dn.), Manvi, seeking delivery of possession of the land to her and a delivery warrant was issued. When the bailiff visited the spot, the petitioner had resisted the execution of the delivery warrant and a report having been filed in this regard by the bailiff into the Executing Court, the petitioner in-turn had filed an application under Order 21, Rule 97 of the Code of Civil Procedure, 1908 and resisted the Execution petition. However, the respondents having filed objection to the same and the Executing Court without deciding the application filed by the petitioner, and in the face of the report and to the detriment of the petitioner, has reissued a delivery warrant, which is under challenge in the present petition. 3. The question therefore for consideration would be whether the petitioner's application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 ought to have been considered, in the first instance when it was reported to the Executing Court that the petitioner was in possession of the suit property, and when he was not the judgment debtor. The question is squarely covered by the decision of the Supreme Court in the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 . The Supreme Court in the above decision has lucidly laid down the law on the point, in the following manner: "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 visualise 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. 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 dispossessed 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. On the contrary the statutory scheme envisaged by Order XXI Rule 97. CPC as discussed earlier clearly guards 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 is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing the 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 sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. In this connection we may also profitably refer to a judgment of a Bench of three learned judges of this Court in the case of Bhanwar Lal Vs. Satyanarain (1995) 1 SCC 6 : 1994 AIR SCW 4549). In this connection we may also profitably refer to a judgment of a Bench of three learned judges of this Court in the case of Bhanwar Lal Vs. Satyanarain (1995) 1 SCC 6 : 1994 AIR SCW 4549). In that case the Bench consisting of K. Ramaswamy, S.C. Agrawal and N. Venkatachala, JJ., had to consider a parallel fact situation, Once Satyanarain had obstructed to the delivery of possession of the suit immovable property which was sought to be obtained in execution by the appellant decree-holder. After such an obstruction was offered by Satyanarain the decree-holder moved an application under Order XXI, Rule 35 for police assistance to remove obstruction caused by Satyanarain. The Executing Court directed the decree-holder to make an application under Order XXI, Rule 97. This Court took the view that the very application under Order XXI, Rule 35 sub-rule (3) for police assistance for removal of obstruction caused by Satyanarain had to be treated to be an application under Order XXI, Rule 97 and such an application was maintainable and could not be said to be beyond limitation. In this connection the following pertinent observations were made by this Court (at 4550-51 of AIR): "The crux of the question is whether the application filed on 25.5.1979 by the appellant, though purported to be under Order 21, Rule 35(3) against Satyanarain, is convertible to one under Order 21, Rule 97, Order 21, Rule 35(3) provides that:-- 35(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any women not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession." A reading of Order 21, Rule 35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. Admittedly, Satyanarain was not a judgment-debtor and that therefore, he is not bound by the decree unless he claims, right, title or interest through the judgment-debtor, Ram Kishan, the person resisting delivery of possession must be bound by the decree for possession. Admittedly, Satyanarain was not a judgment-debtor and that therefore, he is not bound by the decree unless he claims, right, title or interest through the judgment-debtor, Ram Kishan, the person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivate title from the judgment-debtor. The Court gets power under Order 21, Rule 97 to remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable property after conducting enquiry under Rule 97. Order 21, Rule 97 provides thus: '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 obstruction. (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." The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the, question, relating to the, procedure to be followed and question to be determined under Order 21, Rules 98 to 102. A reading of, Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the Court in addition to the power under Rule 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. The decree-holder gets a tight under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done, Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person. When the appellant had made the application on 25.5.1979 against Satyanarain, in law it must be only the application made under Order 21, Rule 97(1) of CPC. The executing Court, obviously, was in error in directing to make a fresh application. When the appellant had made the application on 25.5.1979 against Satyanarain, in law it must be only the application made under Order 21, Rule 97(1) of CPC. The executing Court, obviously, was in error in directing to make a fresh application. It is the duty of the executing Court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the executing Court dismissed the second application on limitation and also the third application, on the ground of resjudicata which the High Court has in the revisions now upheld. The procedure is the handmaid of substantive justice but in this case it has ruled the roost." In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that respondent No.1 decree-holder's application dated 6th May 1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and other under Order XXI, Rule 97, CPC and had to be adjudicated upon as enjoined by Order XXI, Rule 97 sub-rule (2) r/s Order XXI, Rule 101 and Order XXI, Rule 98. In this connection the Court had also to follow the procedure laid down by Order XXI Rule 105 which enjoins the Executing Court to which an application is made under any of the foregoing rules of the order to fix a date of hearing of the application. As the Executing Court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High Court in revision also committed the same error by taking the view that such an application was not maintainable. It is of course true as submitted by learned Counsel for the decree-holder that in paragraph 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the Khasra Number. But these are passing observations. It is of course true as submitted by learned Counsel for the decree-holder that in paragraph 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the Khasra Number. But these are passing observations. On the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by the objector was not maintainable and his only remedy was to move an application under Order XXI, Rule 99 after handing over possession and consideration of objection to delivery of possession by a stranger to the decree at any earlier stage was premature. It must, therefore, be held that neither the Executing Court nor the High Court in revision had considered the objection of the appellant against execution on merits. Consequently, the impugned judgment of the High Court as well as the order of the Executing Court in Civil Execution Case No. 25 of 1990 dated 15th February 1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Munger to re-decide the application of respondent No.1 decree-holder dated 6th May 1991 by treating it to be one under Order XXI, Rule 97 for removal of obstruction of the appellant and after hearing the decree-holder as well as the appellant to adjudicate the claim of the appellant and to pass appropriate orders under Order XXI, Rule 97 sub-rule (2), CPC read with Order XXI, Rule 98, CPC, as indicated in earlier part of this judgment." 4. In view of the law as laid down above, the present petition is allowed. The Executing Court is directed to decide the application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 before proceeding further. With that direction, the further proceedings before the Executing Court are stayed, till such time, the application under Order XXI Rule 97 of Code of Civil Procedure, 1908 is heard and disposed of. Petition allowed.