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2013 DIGILAW 2204 (ALL)

AVINASH SHARMA v. VIMLA RANI

2013-09-03

TARUN AGARWALA

body2013
JUDGMENT Hon’ble Tarun Agarwala, J.—Original Suit No. 458 of 2003 was filed by the predecessor of respondent Nos. 1 to 9 for eviction and for possession against Sarbati Devi. During the pendency of the suit the defendant died and was substituted by a legal representative Om Prakash. In this suit, one of the issues framed was whether the plaintiff was the owner of the land in question or not The suit was decreed on 27th May, 2008. The trial Court held that the plaintiff was the owner and was entitled to get possession. The decree was put in execution being Execution Case No. 1 of 2008 and, during its pendency, the plaintiff died and the present respondent Nos. 1 to 9 were substituted as the heirs. The judgment debtor Om Prakash filed objections under Section 47 of the Code of Civil Procedure on 15th February, 2010. By an order dated 25th July, 2012 the Executing Court rejected the objections of Om Prakash, against which the judgment debtor has filed an appeal, which is pending consideration. 2. It is relevant to state hear that Sarbati Devi in her written statement has consistently held that the plaintiff was not the owner of land in question and that the Nagar Palika was the owner. This contention was repelled by the trial Court. 3. After the rejection of the objection of the judgment debtor the matter takes a new turn. The present petitioner comes into the picture. 4. It transpires that the present petitioner Avinash Sharma files an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act of 1972) against Om Prakash for eviction on the ground that he requires the premises for his personal need. It was contended that he was the owner and landlord and Om Prakash was his tenant. This application under Section 21 of the Act of 1972 was filed on 21st September, 2012 i.e. almost after two months of the rejection of the objection of the judgment debtor under Section 47 of the Code of Civil Procedure. In these proceedings, the tenant appears and admits the petitioner to be the owner and landlord and takes a contradictory stand, which he took in Original Suit No. 458 of 2003. In these proceedings, the tenant appears and admits the petitioner to be the owner and landlord and takes a contradictory stand, which he took in Original Suit No. 458 of 2003. This application under Section 21 of the Act of 1972 gets decreed within two months from the date of presentation of the application by an order dated 9th November, 2012, wherein the prescribed authority directed the tenant Om Prakash to deliver vacant possession to the petitioner. Upon his failing to do so, an execution application was filed and it is alleged that possession was given in January, 2013. 5. Armed with this order of the prescribed authority, the petitioner filed an application under Order 21, Rule 99 of the Code of Civil Procedure on 9th February 2013, contending that the petitioner is the owner of the property in question and that he is being evicted forcefully under the garb of the decree passed against Om Prakash, who was his tenant. The petitioner contended that respondent Nos. 1 to 9 were neither the owners nor the landlords nor their predecessors were the owners and, subsequently, prayed that the decree be set aside and the execution case be dismissed. 6. While this objection was pending, it transpires that the decree holder, namely, respondent Nos. 1 to 9 filed Writ Petition No. 1009 of 2013 and obtained an ex parte order dated 15th April, 2013 directing the Executing Court to complete the execution proceedings and give possession to the decree holder on or before the next date. Subsequently, a modification application was filed by the petitioner contending that since his objections under Order 21, Rule 99 of the Code of Civil Procedure was pending, the Executing Court was proceeding with the delivery of the possession without disposing of his objection. This Court by an order dated 10th of May, 2013 directed the Executing Court to consider and decide the objection of the petitioner under Order 21, Rule 99 of the Code of Civil Procedure. 7. On the basis of the aforesaid order, the Executing Court heard the petitioner and passed a detailed order dated 3rd of August, 2013, rejecting the petitioner’s application under Order 21, Rule 99 of the Code of Civil Procedure. The Executing Court held that the petitioner was not the owner of the property in question. 8. 7. On the basis of the aforesaid order, the Executing Court heard the petitioner and passed a detailed order dated 3rd of August, 2013, rejecting the petitioner’s application under Order 21, Rule 99 of the Code of Civil Procedure. The Executing Court held that the petitioner was not the owner of the property in question. 8. The petitioner, being aggrieved, filed an appeal under Section 96 of the Code of Civil Procedure read with Order 21, Rule 104. The petitioner preferred an interim application for stay of his eviction. This application was rejected by the appellate Court by an order dated 6th August, 2013, against which the present writ petition has been filed. 9. The Court has heard Sri Kesari Nath Tripathi, the learned Senior Counsel assisted by Sri Swapnil Kumar, the learned counsel for the petitioner and Sri Anadi Krishna Narayana, the learned counsel for respondent Nos. 1 to 9. Even though, Sri Anadi Krishna Narayana has filed Vakalatanama on behalf of respondent No. 2, he has submitted that he has instructions to appear on behalf of remaining respondents-decree holders. Respondent No. 10 is the original judgment debtor. Since the controversy relates between the petitioner and the decree holders and no factual controversy is involved, the writ petition is being decided at the admission stage itself without calling for a counter-affidavit. This Court is of the opinion that it is not necessary to issue notices to respondent No. 10 as the matter can be decided without his presence since the order will not affect respondent No. 10 in any manner. 10. Sri Kesari Nath Tripathi, the learned Senior Counsel submitted that an application under Order 21, Rule 99 of the Code of Civil Procedure was filed for setting aside the decree and for quashing the execution proceedings. The petitioner’s application was rejected against, which he preferred a regular appeal under Section 96 of the Code of Civil Procedure. The learned Senior Counsel placed reliance upon Order 21, Rule 101 of the Code of Civil Procedure to show that all questions including questions relating to right, title or interest in the property arising between the parties are required to be adjudicated by the Executing Court and that it is not necessary for the petitioner to file a separate suit. The learned Senior Counsel placed reliance upon Order 21, Rule 101 of the Code of Civil Procedure to show that all questions including questions relating to right, title or interest in the property arising between the parties are required to be adjudicated by the Executing Court and that it is not necessary for the petitioner to file a separate suit. The learned Senior Counsel further placed reliance upon Order 21, Rule 103 of the Code of Civil Procedure to contend that an order passed on the application under Order 21, Rule 99 of the Code of Civil Procedure is to be treated as a decree. Consequently, when a first appeal is filed against the rejection of an application under Order 21, Rule 99 of the Code of Civil Procedure which is a statutory appeal, it become necessary and essential for the Appellate Court to stay the decree during the pendency of his appeal. It was urged that since the order of eviction passed in the decree have serious civil consequences, it was imperative for the appellate Court to stay the eviction, failing which his appeal would be rendered infructuous. 11. In support of his submission the learned Senior Counsel placed reliance upon the decision of this Court in Bhagwan Shankar Bajpayee v. District Judge, Kanpur Nagar and others, 2009 (1) AWC 899 as well as the decision of the Supreme Court in Mool Chand Yadav and another v. Raza Buland Sugar Co. Ltd., Rampur, 1983 (1) LCD 109, in which the Supreme Court held that when the orders are challenged in an appeal, which orders have serious civil consequences, the judicial approach should be that during the pendency of the appeal the operation of the order should remain suspended, more so when the appeal had been admitted. In the light of these decisions, the learned Senior Counsel submitted that when the appeal against the rejection of his objection under Order 21, Rule 99 of the Code of Civil Procedure was admitted by the appellate Court and the decree passed in Original Suit No. 458 of 2003 has serious civil consequences, the appellate Court ought to have suspended the operation of the decree till the decision of his appeal. The learned Senior Counsel contended that the rejection of the stay application entails serious consequences of his facing a possible eviction and, consequently, the present writ petition was filed for stay of his eviction from the premises in question. 12. On the other hand, Sri Anadi Krishna Narayana, the learned counsel for the respondents has submitted that a fraud has been committed by the petitioner to defeat the decree passed in Original Suit No. 458 of 2003 and that after the objection of the judgment debtor was rejected by the Executing Court, a collusive application under Section 21 of the Act of 1972 was filed by the petitioner in connivance with the judgment debtor. The learned counsel for the respondents submitted that fraud is apparent in the manner in which the application under Section 21 of the Act of 1972 has been decreed within a period of two months especially when the judgment debtor had taken a stand that the owner of the property is Nagar Palika and now takes a somersault and admits that the petitioner Avinash Sharma is now his owner and landlord. The learned counsel further submitted that armed with this order of the prescribed authority the present petitioner filed the objections on 19th February, 2013 claiming himself to be owner for the first time with a view to defeat the decree of the trial Court. 13. The learned counsel contended that the finality of the litigation cannot be pressed to the extent of such an absurdity that it become an engine of fraud in the hands of dishonest litigants. The learned counsel submitted that this fraud, which is an act of deliberate deception with a design of securing unfair advantage should be scuttled at the very inception and should not be allowed to continue in the garb of an interim order permitting the objector to remain in possession under this devious method. 14. The learned counsel submitted that this fraud, which is an act of deliberate deception with a design of securing unfair advantage should be scuttled at the very inception and should not be allowed to continue in the garb of an interim order permitting the objector to remain in possession under this devious method. 14. Upon hearing the learned counsel for the parties, the Court finds that there is no quarrel with the proposition advanced by the learned counsel for the petitioner, namely, that when a regular appeal is filed and the orders which are challenged have serious civil consequences then in such matters the judicial approach should be such that if the appeal is admitted then the operation of the impugned order should be stayed so that parties are not affected during the pendency of the appeal, but in the instant case, the Court finds that this principle will not be applicable. 15. Order 21, Rule 99 of the Code of Civil Procedure operates in a different context and permits a third party to question the veracity and the legality of a decree passed in an original suit after his dispossession. For facility, the provision of Order 21, Rule 99 of the Code of Civil Procedure is extracted hereunder : “Order 21, Rule 99.Dispossession by decree holder or purchaser.—(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” 16. From a perusal of this provision it is apparently clear that where any person other than the judgment debtor is dispossessed by an immovable property by the decree holder, he can file an objection questioning his dispossession by moving an application under Order 21, Rule 99 instead of filing a separate suit. Order 21, Rule 101 of the Code of Civil Procedure gives such person complete protection, namely, that all questions relating to right, title or interest in the property would be adjudicated. Order 21, Rule 101 of the Code of Civil Procedure gives such person complete protection, namely, that all questions relating to right, title or interest in the property would be adjudicated. Consequently, if a person other than a judgment debtor is dispossessed from the property in question, the said person is not remedyless and has a right to move an application under Order 21, Rule 99 of the Code of Civil Procedure and get his objections adjudicated. Such adjudication would amount to a decree under Order 21, Rule 103 of the Code of Civil Procedure but it does not mean that if an appeal is filed by a third person, the effect of the original decree would remain stayed in a suspended animation. The judgments of the Supreme Court cited by the petitioner is in relation to the original decree, which is challenged in an appellate Court. 17. In the instant case, the original decree was challenged by the judgment debtor by filing an objection under Section 47 of the Act of 1972, which has also been rejected. The writ Court directed the Executing Court to execute the decree and give possession to the decree holder. The writ Court modified its order and permitted the objection of the petitioner also to be decided under Order 21, Rule 99 of the Code of Civil Procedure, which has now been rejected through such objections could only be considered after his dispossession. The decree passed in Original Suit No. 458 of 2003 has to be executed and possession has to be delivered to the decree holder. The contention that the petitioner is now in possession pursuant to the decree of his application under Section 21 of the Act of 1972, prima facie, seems to be a device for scuttling the decree. 18. Without commenting any further on this aspect as it would have a bearing on the merits of the appeal of the petitioner, the Court is of the opinion that such dispossession of the petitioner pursuant to the decree being executed in Original Suit No. 458 of 2003 would not involve such serious civil consequences entitling the petitioner for protection of his dispossession during the pendency of his appeal. The petitioner’s interest is safeguarded and, in the event, his appeal is allowed and the decree is set aside, the petitioner would be put back in possession. 19. The petitioner’s interest is safeguarded and, in the event, his appeal is allowed and the decree is set aside, the petitioner would be put back in possession. 19. In the light of the aforesaid, the Court is of the opinion that the order of the appellate Court rejecting the stay application does not suffer from any manifest error of law. The writ petition fails and is dismissed. 20. It is made clear that any observation made above will not affect the merit of the appeal filed by the petitioner before the appellate Court. The Court further directs the appellate Court to decide the appeal of the petitioner within three months from the date of production of a certified copy of this order.