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2013 DIGILAW 2514 (ALL)

GAURAV ARYA v. CIVIL JUDGE (SENIOR DIVISION)

2013-10-04

SANJAY MISRA

body2013
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Keshari Nath Tripathi, learned senior counsel assisted by Sri C.P. Gupta, learned counsel for the petitioners and Sri Rahul Sahai alongwith Sri S.K. Dubey, learned counsel for the Respondent Nos. 2 and 3. 2. It is informed by learned counsel for the parties that the Respondent Nos. 4 to 8 were the judgment debtor and are as such not affected by any order passed in this writ petition hence with consent of learned counsels this writ petition is being decided today itself. 3. This writ petition is directed against the order dated 24.8.2013 passed in Execution Case No. 15 of 1998 arising out of the Original Suit No. 349 of 1983 whereby the Executing Court has issued dakhal parwana with police force as also the order dated 18.9.2013 whereby the application paper No. 6-C filed by the petitioners in proceedings under Order XXI Rule 97 CPC for grant of interim protection has been refused as also the order dated 24.9.2013 passed by the Executing Court in Misc. Case No. RM-100 of 2013 also arising out of the Execution Case No. 15 of 1998 whereby the application 21-C-2 made by the petitioners for permission to lead oral evidence in their support has been rejected. 4. According to Sri Tripathi, learned senior counsel, the petitioners were not party in Original Suit No. 349 of 1983 which was decreed in 1986. The appeal was dismissed in 1994 and the S.L.P. there against was also dismissed on 12.8.1996. He submits that the decree holder filed Execution Case No. 15 of 1998 which was subsequently dismissed for default on 13.1.2000 but restored in the year 2012. The petitioners claimed to be in possession over the property in question by virtue of it being let out to them on 15.9.1998 by the then decree holder. When the decree was being executed after the execution case had been restored in the year 2012 the petitioners who claimed to be tenants of the premises in question obstructed the decree under Order XXI Rule 97 CPC and the Amin report obtained by the Executing Court indicated that the petitioners are in possession over the property in question. 5. When the decree was being executed after the execution case had been restored in the year 2012 the petitioners who claimed to be tenants of the premises in question obstructed the decree under Order XXI Rule 97 CPC and the Amin report obtained by the Executing Court indicated that the petitioners are in possession over the property in question. 5. Learned counsel states that alongwith the application under Order XXI Rule 97 CPC the petitioners had made the application for grant of interim injunction against their dispossession which application 6-C was rejected by the impugned order on 18.9.2013 and their application paper No. 21-C-2 to lead oral and documentary evidence has also been rejected by the impugned order dated 24.9.2013. 6. The sum and substance of the submission of learned counsel for the petitioners is that when an application under Order XXI Rule 97 CPC has been entertained by the Executing Court and the Amin Commission has reported that the petitioners are in possession thereof they cannot be summarily ejected in pursuance of the decree and an adjudication as contemplated under Order XXI Rule 98 CPC is to be done. The petitioners who are not the judgment-debtors cannot be first dispossessed in proceedings under Order XXI Rule 97 CPC and thereafter adjudication be done. He states that if that be a circumstance and the petitioners are dispossessed under Order XXI Rule 99 CPC without adjudication of their rights under Rule 98 of Order XXI CPC it shall be an illegal act because in case under adjudication it is found that the petitioners have a vested right as tenant of the property in question let out to them by the erstwhile decree holder they would be entitled to be put in possession again. He states that such a procedure does not have the sanction of law that the obstructor be dispossessed under Rule 99 and be repossessed after adjudication under Rule 98 of Order XXI CPC. 7. Sri Rahul Sahai, learned counsel for the respondent has contested the submissions and has submitted that the Executing Court is enjoined to adjudicate the rights of obstructor under Order XXI Rule 97 and 98 CPC. 7. Sri Rahul Sahai, learned counsel for the respondent has contested the submissions and has submitted that the Executing Court is enjoined to adjudicate the rights of obstructor under Order XXI Rule 97 and 98 CPC. He states that the interim protection which was claimed by the petitioners by the application 6-C could not have been granted by the Executing Court and, therefore, the impugned order dated 18.9.2013 is an order passed in accordance with law. He further states that in execution proceedings the obstructor cannot be allowed to lead oral or documentary evidence and, therefore, the Executing Court has rightly rejected his application 21-C-2 by the impugned order dated 24.9.2013. 8. Sri Rahul Sahai also defends the impugned order dated 24.8.2013 to state that the decree holder is entitled to dakhal parwana and police force for the purpose of possession as such he states that no error has been committed by the Executing Court in passing the impugned order dated 24.8.2013. 9. In support of his submission Sri Rahul Sahai has placed reliance on a decision of this Court in the case of Janardan Singh Jaiswal v. IVth Additional District Judge, Mirzapur, 2005(23) LCD 406. 10. Having considered the submission of learned counsel for the parties and perused the record, insofar as the order dated 24.8.2013 is concerned, the decree holder is no doubt entitled to an order of dakhal parwana and police force to execute the decree, however, such dakhal parwana has to be executed in accordance with law. Therefore, while not interfering in the order dated 24.8.2013 passed by the Executing Court it is apt to state that such a dakhal parwana can only be executed in accordance with law and since there is an application under Order XXI Rule 97 CPC filed by the obstructor to the decree the dakhal parwana has to wait such adjudication of such an application in accordance with law under Order XXI Rule 98 CPC and till then the dakhal parwana cannot be executed. 11. Insofar as the order dated 18.9.2013 is concerned, the application of the petitioners for interim protection appears to have been refused. Be that at it may, even if the interim protection is not granted to the obstrutor petitioners they cannot be dispossessed unless in accordance with law, therefore no interference is required in the impugned order dated 18.9.2013. 12. 11. Insofar as the order dated 18.9.2013 is concerned, the application of the petitioners for interim protection appears to have been refused. Be that at it may, even if the interim protection is not granted to the obstrutor petitioners they cannot be dispossessed unless in accordance with law, therefore no interference is required in the impugned order dated 18.9.2013. 12. Under Order XXI Rule 98 CPC, it has been specifically provided that there is to be a determination of all the questions raised regarding right title or interest in the property arising between the parties to a proceeding under Order XXI Rule 97 or 99 CPC. Therefore, to say that the obstructor should be dispossessed first under Rule 99 of Order XXI CPC and then adjudication be made under Rule 101 and Rule 98 of Order XXI CPC would be an incorrect proposition. When the application under Order XXI Rule 97 is pending adjudication before the Executing Court the obstructor petitioners can only be dispossessed in accordance with law. Para 14 of the judgment in Janardan Singh Jaiswal (Supra) reads as under : “In order to resist possession under Order XXI Rule 95, C.P.C. the occupier must establish his right to occupy the property as a tenant. In the present case, and that the facts and circumstances of the case clearly establish that the objector’s father Sri Tej Narain Singh was not the tenant of the property. The petitioner did not become tenant on the death of his father and there is no evidence with regard to his tenancy. In Deo Raj Dagra v. Gyan Chandra Jain, 1981 (2) ACC 615, the Supreme Court held that where the objector claims to be tenant, the question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceedings. Order XXI Rule 97, C.P.C. was amended and that Sub-rule (2) provides that where any application is made under Sub-rule (1) by a person resisting and obstructing the possession of immovable property made by the holder of the decree for possession, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. The object of the amendment made by C.P.C. (Amendment) Act, 1976 was to decide all questions including the right of the tenancy, in the execution proceedings itself. The object of the amendment made by C.P.C. (Amendment) Act, 1976 was to decide all questions including the right of the tenancy, in the execution proceedings itself. The obstructor must prove not only his possession but has also to establish that he has a right to protect his possession from the auction purchaser. Where he claims tenancy, he must establish the same. In Nooruddin v. K.L. Anand (Dr.), (1995) 1 SCC 242 , the Supreme Court held that the scheme of the Code clearly adumbrates that when an application has been made under Order XXI Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties, to a proceeding or between the decree holder and the persons claiming independent right, title or interest in the immovable property and an order in that behalf shall be made. The determination shall be conclusive between the parties as if it was a decree subject to right of an appeal and not a matter to be agitated by a separate suit. The object is to render substantial justice and to prevent resistance to a decree by a person who has no right to occupy the property. Adjudication before execution is a sufficient remedy to prevent the fraud, abuse of the process of the Court or miscarriage of justice.” 13. In this decision the Court has clearly held that the obstructor must not only prove his possession but he has also to establish that he has a right to protect his possession. 14. In the present case the possession of the petitioner cannot be disputed in view of the report of Amin where he has been found in possession. Insofar as establishing any right to protect his possession is concerned, the same is yet under adjudication and such adjudication under the provisions of Order XXI Rule 101 CPC has not yet been done as such in view of the decision in the case of Janardan Singh Jaiswal (Supra) the petitioners obstructor are entitled to an adjudication to establish a right in the property in question and protect their possession thereby. 15. 15. Insofar as the decision of the Trial Court in the order dated 24.9.2013 that no oral evidence can be permitted to the petitioner obstructor is concerned, Sri Rahul Sahai, learned counsel for the respondent has placed reliance on a decision of the Bombay High Court in the case of Tarabai Vishwanath Sabins v. National and Grindlays Bank Ltd., MHLJ 1969-0-512 and placed reliance on paragraph 3 therein. According to him, it was clearly held by a Division Bench of the Bombay High Court that the proceedings under Order XXI Rule 97 CPC to Rule 102 CPC are summary proceedings and not intended for decisions to be made by leading oral and documentary evidence tendered on behalf of the parties. He therefore states that the impugned order dated 24.9.2013 is in accordance with law and hence requires no interference. 16. Insofar the above submission is concerned, the said decision of the Bombay High Court was a decision delivered in the year 1968. The Rule 101 of Order XXI CPC has undergone change by an amendment in the year 1976. Rule 101 as it reads prior to 1976 amendment is quoted hereunder : 101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property. Rule 101 as amended after 1976 is quoted hereunder : “All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.” 17. The aforesaid amendment indicates that all disputes are to be settled by the Executing Court under Order XXI Rule 101 CPC. In the present case the petitioners are not the judgment debtor. The petitioners are non-party to the Original Suit and the petitioners claim to be in possession of the property in question by virtue of it being let out to them by the erstwhile decree holder. In the present case the petitioners are not the judgment debtor. The petitioners are non-party to the Original Suit and the petitioners claim to be in possession of the property in question by virtue of it being let out to them by the erstwhile decree holder. Therefore this is not a case of an obstruction by a judgment debtor or a person claiming through the judgment debtor. Under such circumstances, the questions which have to be determined under Rule 101 of Order XXI CPC are with relation to the petitioner who is in possession of the property at the instance of the erstwhile decree holder and are to be determined by the Executing Court which shall have jurisdiction to decide such questions. Therefore in view of the amended provision of Rule 101 of Order XXI CPC the Court below could not deny an opportunity to the petitioners obstructor to lead oral or documentary evidence for the purpose of proving his right, title and interest which according to the petitioners has been disputed and denied by the respondents. 18. In view of the aforesaid, the impugned order dated 24.9.2013 passed by the Executing Court in RM-100 of 2013 arising out of Execution Case No. 15 of 1998 cannot be sustained. The petitioners obstructor who is in possession through erstwhile decree holder is therefore entitled to lead oral and documentary evidence for the purpose of prove of his right and interest before the Executing Court. In view of the aforesaid circumstances, the writ petition is disposed of as under : 19. The impugned order dated 24.9.2013 passed by the Civil Judge (Sr. Division) Hathras in RM-100 of 2013 arising out of Execution Case No. 15 of 1998 is set aside and as already observed above he is entitled to lead his oral and documentary evidence. The Executing Court is required to consider the application paper No. 21-C-2 of the petitioner in accordance with law keeping in mind the amended provision of Rule 101 of Order XXI CPC. 20. The petitioner cannot be dispossessed unless the questions that have arisen in his application under Order XXI Rule 97 CPC are decided under Rule 101 of Order XXI CPC and otherwise in accordance with law. 21. 20. The petitioner cannot be dispossessed unless the questions that have arisen in his application under Order XXI Rule 97 CPC are decided under Rule 101 of Order XXI CPC and otherwise in accordance with law. 21. It is made clear that this Court has not adjudicated on the claim made by the petitioner of having status of a tenant in the property and that has to be done by the appropriate Court. 22. As prayed by learned counsel for the parties, since the matter is quite old it is expected that the Executing Court shall decide it as expeditiously as possible without granting any unnecessary adjournments to any of the parties and in accordance with law. 23. No order is passed as to costs.