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2013 DIGILAW 1584 (ALL)

Noorjahan and Another v. Zaibun Nisa and Others

2013-05-28

KRISHNA MURARI

body2013
Krishna Murari, J.— Heard learned counsel for the petitioners. By means of this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 14.05.2012 passed by Judge, Small Causes Court rejecting their application under Order 21 Rule 97 and 101 read with Section 151 C.P.C. as well as revisional order dated 14.05.2013. The facts leading to the present dispute may be briefly stated as under. Smt. Zaibun Nisa and Smt. Shamun Nisa along with their mother late Smt. Ashgari Begum filed a suit before Judge, Small Causes Court on 20.04.1992 against Nazim Ali (respondent no. 3 herein) for ejectment and arrears of rent on the allegations that he was a tenant in the disputed property and was in arrears of rent and the tenancy was terminated. In the said suit, Smt. Noorjahan and Shahnoor, the petitioners herein moved an application under Order 1 Rule 10 read with Section 151 C.P.C. for being impleaded in the proceedings on the allegation that Smt. Zaibun Nisa and Smt. Shamun Nisa had wrongly filed the suit alleging themselves to be the landlady and the property in dispute was purchased by one Smt. Shakina Begum from Bhurey Khan by means of registered sale deed dated 28.12.1961. She made an oral hiba dated 27.02.1988 in favour of Allah Bux. The tenant Nazim Ali, who was in occupation of the ground floor in the premises in dispute, vacated the same on 30.07.1991 and handed over the possession to Allah Bux. It was further alleged that the house in dispute was purchased by them from Allah Bux by means of registered sale deed dated 02.03.1993 and were in occupation and possession thereof. Judge, Small Causes Court vide order dated 04.09.2000 allowed the impleadment application. Smt. Zaibun Nisa and Smt. Shamun Nisa along with their mother Ashgari Begum challenged the order of the Small Causes Court by filing a revision, which was allowed by District Judge, Aligarh vide order dated 03.04.2006. Against the said order, the petitioners herein approached this Court by filing Writ Petition No. 24355 of 2006, which was dismissed vide judgment and order dated 09.10.2006. It was observed by this Court that "after vacation of the house by Shri Nazim Ali and subsequent sale by Allah Bux, the petitioners cannot claim to have any right, title or interest in the said house. It was observed by this Court that "after vacation of the house by Shri Nazim Ali and subsequent sale by Allah Bux, the petitioners cannot claim to have any right, title or interest in the said house. If the petitioners desire to claim right, title or interest, they have to file their own independent suit regarding title and ownership and prove the same before the competent court." This order attained finality, as it was not challenged. SCC Suit was decreed and the respondent nos. 1 and 2 herein put the decree in execution. In the execution proceedings, the petitioners moved an application under Order 21 Rule 97 and 101 read with Section 151 C.P.C. to resist their dispossession from the property in dispute. Executing court rejected the application against which a revision was preferred, which was also dismissed. It has been urged by the learned counsel for the petitioners that objection under Order 21 Rule 97 and 101 read with Section 151 C.P.C. has wrongly been dismissed solely on the ground that the application of the petitioners for being impleaded in the suit, was dismissed, as such, they have no right to resist the execution proceedings. It has further been submitted that the courts below failed to look into the provisions of Order 21 Rule 97 as well as 101 C.P.C. and the petitioners being in possession of the property, had full right to protect the same and it was obligatory upon the courts to have decided all the questions relating to the right, title and interest in the property. In order to appreciate the controversy, it may be relevant to quote the provisions of Order 21 Rule 97, which is as under. "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." A bare reading of the aforesaid provision indicates that the right to make an application, in case, the possession is resisted or obstructed, has been conferred only upon the decree holder or the auction purchaser of the property. In the case in hand, the petitioners, on the basis of alleged sale deed in their favour, made an application for being impleaded in the proceedings, but were unsuccessful. In this view of the matter, the petitioners were neither a decree holder nor auction purchaser, thus, had no right to make any objection or application under Order 21 Rule 97 C.P.C. Further they themselves were responsible for creating obstruction and, as such, the application or objection made on their behalf under Order 21 Rule 97 C.P.C. was not maintainable and it was rightly rejected. The view taken by me finds support from two judgments of this Court in the case of Mahfooz Ali Khan & Ors. Vs. Additional District Judge, Rampur & Ors., 1985 ALL. L.J. 281 and Rajendra Kumar Vs. 3rd Additional District Judge, Moradabad & Ors., AIR 1989 ALL. 162 . In both the aforesaid cases, this Court has taken the view that only decree holder or auction purchaser of the property, can file application under Order 21 Rule 97 C.P.C., in case, his possession is resisted or obstructed. The same view has been taken by other High Courts. Reference may be made to decision of Karnataka High Court in the case of Jesaraj Ghasimal Betal Vs. Ahammad Hussein, AIR 1987 Karnataka 75, wherein it has been held as under. "Order 21 Rule 97 shows that the only person, who can file an application under Order 21 Rule 97 are (1) the holder of a decree for possession and (2) the purchaser of any such property sold in execution of a decree. No other person has got a right to file such an application. "Order 21 Rule 97 shows that the only person, who can file an application under Order 21 Rule 97 are (1) the holder of a decree for possession and (2) the purchaser of any such property sold in execution of a decree. No other person has got a right to file such an application. Therefore, where the decree-holder sought possession of the property in execution of his decree and the purchasers of a share of the property from the judgment-debtor claiming to be in possession of their share resisted delivery of possession of the property, the application filed by them under Order 21 Rule 97 contending that they had a right to resist or obstruct delivery of possession by the executing court is not competent." In the case of Smt. Usha Jain Vs. Manmohan Bajaj & Ors., a Full Bench of M.P. High Court has observed as under. "The executing court has no jurisdiction to start an enquiry suo moto or at the instance of a third party other than the decree holder/auction purchaser under Order 21 Rule 97. ----------------- An enquiry at the instance of a third party in possession is contemplated under Order 21 Rule 100 C.P.C. after he is dispossessed and not before it." A conjoint reading of the provisions of Rules 97, 98 and 99 goes to show that an enquiry as envisaged into the nature and character of the possession of a person, who has obstructed or resisted the delivery of possession, can be made only on the complaint of a decree holder or auction purchaser and not at the instance of the party in possession. Any enquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution proceedings and applies under Rule 99 complaining of such dispossession. The third party objector does not at all come into the picture till the dispossession in execution takes place and can have no right prior to that point of time to compel the decree holder or the auction purchaser to submit to an investigation into the title or possession. From the facts narrated above, it is clear that petitioners are neither decree holder nor judgment debtors nor they are claiming any right through the judgment debtors. From the facts narrated above, it is clear that petitioners are neither decree holder nor judgment debtors nor they are claiming any right through the judgment debtors. Petitioners cannot be considered to be purchaser of the property sold in execution of decree because, admittedly, they claim to have purchased the property by private arrangement, pendente lite, therefore, they do not fall within any of the categories enumerated in Order 21 Rule 97 C.P.C. The matter can be viewed from another angle. Section 47 of the Code of Civil Procedure provides that all the questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. It has further been provided that where a question arises as to whether any person is or is not the representative of a party, such question also be determined by the executing court. Section 47 of the Code of Civil Procedure enables parties to the suit in which the decree was passed to approach the executing Court for deciding a question relating to execution, discharge or satisfaction of the decree. It is well settled that the executing Court cannot go behind the decree. A person, who is not a party to a decree or who does not claim through any such party, has not been given any right in execution proceedings under the Code of Civil Procedure to challenge a decree passed which is sought to be executed. The impleadment sought by the petitioners in suit proceedings having failed, they cannot be said to be a party to the suit. In this view of the matter, an application under Section 151 C.P.C. at their behest will also not be maintainable for challenging a decree. Moreover, the petitioners being a purchaser pendente lite as alleged by them, will again have no right to resist the execution proceedings. In view of the aforesaid facts and discussions, I am of the view that there is no error in the orders impugned in this petition and it is not a fit case for interference under Article 226 of the Constitution of India. The writ petition, accordingly, fails and stands dismissed in limine. _____________