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2012 DIGILAW 121 (AP)

E. S. Sulochana v. P. Yogamba Lakshmi

2012-02-03

C.V.NAGARJUNA REDDY

body2012
Judgment : Feeling aggrieved by order dated 28-6-2011 in E.A.No.183/2006 in O.E.P.No.26/2004 in O.S.No.1/1998 on the file of the learned Senior Civil Judge, Puttur, the third party to the suit and the E.P. filed this Civil Revision Petition. 2. The facts, which are relevant for disposal of this case, are summarized as under: Respondent No.1 filed the above mentioned suit against respondent No.2 for recovery of possession of the suit schedule property. Respondent No.1 claimed that she is the owner of the suit schedule property and that respondent No.2 is the tenant. Respondent No.2 remained exparte and exparte decree was passed on 24-2-1998. Respondent No.1 filed O.E.P.No.26/2004 for delivery of possession of the suit schedule property under Order XXI Rule 35 of the Code of Civil Procedure, 1908 (for short "the Code"). The lower Court issued warrant to the Bailiff, who, after visiting the suit schedule property, submitted his report stating that third parties are in possession of the property; that they have resisted the delivery of possession and that the description of the property mentioned in the warrant varies from what it appears on ground. The warrant was accordingly returned unexecuted. The third party objectors, including the petitioner, submitted their written objections to the Court on 30-12-2004. 3. Respondent No.1 filed E.A.No.7/2005 under Order XXI Rule 97 of the Code for removal of obstruction caused by the third parties. Respondent No.1 however filed a Memo to permit her to withdraw the said E.A. with liberty to file “petitions as per law”. E.A.No.7/2005 was called on Bench on 29-6-2006. As respondent No.1 remained absent and unrepresented, the said application was dismissed. On the same day on which the E.A. was dismissed, respondent No.1 filed another application, registered as E.A.No.183/2006, purportedly under Section 151 of the Code, for a direction to the Bailiff to remove the obstruction, if necessary with Police aid and to execute the delivery warrant. The petitioner and respondent No.3 were shown as objector Nos.1 and 2 to the said application. The petitioner filed a counter-affidavit in the said application wherein she has stated that neither respondent No.2/judgment-debtor nor his men have any semblance of right, title or possession over the E.P. schedule property; that respondent No.2 never contested the suit and the E.P. and that there is active collusion between respondent No.1/decree-holder and respondent No.2/judgment-debtor and that therefore the decree is wholly unenforceable. The petitioner has taken strong objection to the maintainability of the subsequent application i.e., E.A.No.183/2006, as the earlier application filed by respondent No.1 under Order XXI Rule 97 of the Code was dismissed for default. By the order which is questioned in this Civil Revision Petition, the lower Court has allowed the application of respondent No.1, with costs and granted the Police aid. 4. At the hearing, Sri S. Subba Reddy, learned counsel for the petitioner, submitted that the lower Court has committed a serious illegality in entertaining the second application under Section 151 of the Code having dismissed the earlier application filed under Order XXI Rule 97 of the Code without reserving any liberty to respondent No.1 for filing a subsequent application. He further contended that the lower Court has failed to consider the conduct of respondent No.1 in filing the Memo seeking withdrawal of her earlier application and filing a fresh application on the same day on which she allowed the earlier application to be dismissed in default. The learned counsel has taken exception to the subsequent action of the lower Court in closing the very E.P. after suo motu advancing the same by order dated 23-9-2011. In support of his submissions, the learned counsel placed reliance on the Judgment of the Supreme Court in Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal ( (1997) 3 SCC 694 ). 5. The submissions of the learned counsel for the petitioner were opposed by Sri V. Jagapathi, learned counsel for respondent No.1. He has stated that the petitioner failed to make out any semblance of her right to remain in possession of the suit schedule property; that having failed to file an application under Order XXI Rule 97 of the Code, the petitioner cannot resist delivery of possession and that the lower Court has not committed any illegality in allowing the application filed by respondent No.1 for delivery of possession and granting the Police aid. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the record. 7. The undisputed facts of the case, as noted above, would undoubtedly reveal a strange conduct on the part of respondent No.1. The manner in which the Court below has dealt with such conduct of respondent No.1 is wholly unsatisfactory, to say the least. 7. The undisputed facts of the case, as noted above, would undoubtedly reveal a strange conduct on the part of respondent No.1. The manner in which the Court below has dealt with such conduct of respondent No.1 is wholly unsatisfactory, to say the least. Respondent No.1, having filed the application under Order XXI Rule 97 of the Code for removal of obstruction, kept it pending for about one year and suddenly she filed a Memo, which reads as under : “It is submitted that the Decree Holder has filed the above petition instead of removing the obstruction for delivery of possession in the above said execution petition. Under the above circumstances it is, therefore, prayed that the Hon’ble Court may be pleased to permit the Decree Holder to withdraw the petition in E.A.No.7 of 2005 in the above E.P. and permit the Decree Holder to file petitions as per law in the above case and pass such other orders.” A close reading of the said Memo would show that the reason for seeking withdrawal of E.A.No.7/2005 was that the said application was filed obviously for a relief other than the relief of removing the obstruction for delivery of possession, but the prayer in the said E.A. was precisely for removing the resistance/obstruction to possession of the immovable property created by the petitioner and respondent No.3. Be that as it may, having filed the said Memo for withdrawal, the petitioner was unrepresented when E.A.No.7/2005 was taken up for hearing. The lower Court has dismissed the said application after calling respondent No.1 absent. No liberty was reserved to respondent No.1 for filing a fresh application nor was any reference made to the Memo filed by respondent No.1 seeking withdrawal of E.A.No.7/2005. 8. Interestingly, on the same day on which E.A.No.7/2005 was dismissed, respondent No.1 filed E.A.No.183/2006 for the same relief as was claimed in E.A.No.7/2005 with the addition of relief of grant of Police aid. The lower Court has not viewed as strange this conduct of respondent No.1 in filing a Memo in the first place for withdrawal of the application filed under Order XXI Rule 97 of the Code, allowing E.A.No.7/2005 unrepresented and consequently dismissed, and then filing a fresh application for the same relief under a generic provision, such as Section 151 of the Code. On the contrary, the lower Court overruled the objections raised by the petitioner on the maintainability of the subsequent application on the reasoning that as the earlier application was dismissed for default and not on merits, the same will not operate as res judicata. 9. This case indeed rakes up an interesting question viz., whether a person who filed an application in an execution proceeding is entitled to file another application on the same cause of action after his previous application is dismissed for default? 10. The general bar of instituting a subsequent proceeding is contained in Section 11 of the Code which gave a statutory recognition to the doctrine of res judicata which is rested on the principle nemo debet bis vexari pro unna et eadem causa which means, no man shall be vexed twice (See: Dr. Rao V.B.J. Chelikani Vs. Government of Andhra Pradesh ( 2010(2) ALT 94 (DB)). While the application of this doctrine to proceedings other than suits is a subject matter of conflicting views among various High Courts, in view of amendment to Section 11 of the Code, whereby, Explanation VII is inserted by Act 104 of 1976, this doctrine applies to proceedings pertaining to execution of decrees. As such the applications in the instant case are governed by the provisions of Section 11 of the Code. Section 11 of the Code bars a subsequent suit where the issue in the present suit was directly and substantially in issue in the former suit which has been heard and finally decided by the Court between the same parties or those litigating under the same title. 11. In State of Maharashtra Vs. M/s. National Construction Co. ( AIR 1996 S.C. 2367 ), the Supreme Court held : “…. The important words are “has been heard and finally decided”. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata”. 12. In Sheodan Singh Vs. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata”. 12. In Sheodan Singh Vs. Daryao Kunwar ( AIR 1966 S.C. 1332 ), the Supreme Court held that where the earlier suit was dismissed by the Court for want of jurisdiction or for default of plaintiff’s appearance etc., the decision not being on merits, would not be res judicata in a subsequent suit. This view was reiterated in Ram Gobinda Dawan Vs. Smt. Bhaktabala ( (1971) 1 SCC 387 ). 13. But despite the position that a subsequent suit is not barred by the principle of res judicata where the previous suit was not decided on merits, Order IX Rule 9 of the Code mandates that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Once an application under Order XXI Rule 97 or Rule 99 of the Code is filed, such an application is required to be treated as a suit, since a separate suit is barred for deciding such questions by Rule 101 of Order XXI of the Code and any order passed on such application shall be treated as a decree which can be questioned only by way of a regular appeal under Rule 103 of Order XXI of the Code. Rule 105 of Order XXI of the Code prescribed the procedure for hearing of the applications. Under sub-rule (2), where on the day fixed or on any other day to which the hearing of the application is adjourned, the applicant does not appear when the case is called, the Court may make an order dismissing the application. Under sub-rule (3), where the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application exparte and pass appropriate order. Under sub-rule (3), where the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application exparte and pass appropriate order. Under sub-rule (1) of Rule 106 thereof, any party against whom an exparte order is passed under sub rules (2) or (3) of Rule 105, may apply to the Court to set-aside the order and if such a party satisfies the Court that there is sufficient cause for non-appearance when the application was called for hearing, the Court may set-aside the order on such terms as to costs and shall appoint a day for further hearing of the application. The application under sub-rule (1) of Rule 106 shall be made within 30 days from the date of the order or where in the case of an exparte order, the notice was not duly served, within 30 days from the date when the applicant had knowledge of the order. 14. The above noted provisions thus clearly envisage that a party to an application under Order XXI Rule 97 of the Code, has to necessarily file an application for setting aside the exparte order within 30 days from the date of passing such an order or from the date of knowledge of the order in case of non-service of notice, as the case may be. Even though respondent No.1 has filed a Memo seeking withdrawal of her application, for the reasons which are hard to understand, she has allowed the application filed under Order XXI Rule 97 of the Code to be dismissed for non-representation and failed to follow the mandatory procedure under Rule 106. Even in the absence of a specific bar as contained in Order IX Rule 9 of the Code for filing a fresh application, the same principles which apply to suits should equally be applied to the applications filed under Order XXI Rule 97 of the Code as such an application has the same status as a separate suit. The Court below, being oblivious of this legal position, has brushed aside the objection raised by the petitioner by assigning a lopsided reasoning that the previous order does not operate as res judicata. The Court below, being oblivious of this legal position, has brushed aside the objection raised by the petitioner by assigning a lopsided reasoning that the previous order does not operate as res judicata. Being the executing Court, the least that is expected of it is to ascertain from respondent No.1 as to the reason for her not prosecuting the petition filed under substantive provision of Order XXI Rule 97 and filing a separate application invoking the Court’s inherent powers under Section 151 of the Code for the same relief as claimed in the previous application with the addition of the relief of police aid, on the same day on which the earlier application was dismissed for non-prosecution. 15. The further reasoning of the Court below in allowing the application of respondent No.1 is equally unsatisfactory and the same betrays its total lack of comprehension of the provisions of Order XXI Rule 97 of the Code. The Court below appears to think that unless the objector files an application under Order XXI Rule 97 of the Code, the decree-holder is entitled for an order for removal of obstruction and that the third parties in possession have no right to contest the application filed by the decree-holder. This approach of the lower Court is contrary to the well settled principles laid down by the Apex Court. In Brahmdeo Chaudhary (1-supra), the Apex Court held that in an application filed by the decree-holder under Order XXI Rule 97 of the Code complaining of resistance or obstruction by a third party, a lis arises between the decree-holder and the applicant on the one side and the obstructionist or the resisting party on the other and that when such a lis arises, it has to be adjudicated upon as enjoined by Order XXI Rule 97(2) of the Code. The Supreme Court further held that the procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order XXI. Their Lordships have closely analysed the provisions of Order XXI Rules 97 to 103 and held as under : “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. Their Lordships have closely analysed the provisions of Order XXI Rules 97 to 103 and held as under : “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 bypassing 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. 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. 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 it 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 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 sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves.” The Supreme Court also made a reference to the Judgment of a three Judge Bench in Bhanwarlal Vs. Satyanarain ( (1995) 1 SCC 6 ) wherein the decree-holder has filed an application under Order XXI Rule 35 of the Code for Police assistance for removal of obstruction and it was held that every application filed under Order XXI Rule 35(3) for Police assistance for removal of obstruction has to be treated as an application under Order XXI Rule 97 of the Code and such an application shall be disposed of by following the same procedure as was envisaged under Rules 98 to 105 of Order XXI of the Code. 16. Having regard to the settled legal position as discussed above, I am of the opinion that the Court below has committed not only a serious legal but also a jurisdictional error in entertaining and allowing E.A.No.183/2006 having dismissed E.A.No.7/2005 for non-representation and also in holding that the petitioner is not entitled to contest the petition filed by the decree-holder as she failed to file an application under Order XXI Rule 97 of the Code, independently. This reasoning is in the teeth of the above discussed Judgments of the Supreme Court. This reasoning is in the teeth of the above discussed Judgments of the Supreme Court. Once respondent No.1 has allowed her application filed under Order XXI Rule 97 of the Code to be dismissed for non-representation, the question of entertaining a subsequent application on the same cause of action would not arise as such a course encourages the parties to indulge in sheer abuse of process of law and the Courts. For the above reasons, the order under revision cannot be sustained and the same is accordingly set-aside. 17. Another aspect which needs serious view of this Court is the conduct of the lower Court in closing the E.P. itself. Respondent No.1, in whose favour the lower Court has passed the order directing delivery of possession and granting Police aid, herself filed order dated 23-9-2011 passed by the Court below, a perusal of which shows that the Court below suo motu advanced the E.P. and closed the same by passing the following order: “E.P. is suo moto advanced today and since the stay is pending the E.P. is closed for the present.” This course adopted by the Court below is indeed difficult to comprehend. When the order passed by it pending the E.P. is the subject matter of the revision petition before this Court, the need for advancing the E.P. suo motu, needs to be explained by the Court itself. This Court feels that the learned Senior Civil Judge has compounded the patently illegal order passed by her by closing the E.P. after suo motu advancing the same. In the opinion of this Court, the learned Senior Civil Judge owes an explanation to this Court. The Registry is directed to place the file on the administrative side for appropriate action. 18. In the result, the Civil Revision Petition is allowed, with costs of Rs.10,000/-(Rupees Ten thousand only) against respondent No.1. 19. As a sequel, interim order dated 5-8-2011 is vacated and C.R.P.M.P.Nos.3989/2011 and 281/2012 are disposed of as infructuous.