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2015 DIGILAW 372 (ALL)

Gopal Ji v. Bipin Kumar Agarwal

2015-02-24

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya, J. 1. By means of this revision, the revisionist has challenged the order dated 5.2.2015 by which his application under Order 21, Rule 98, C.P.C. has been rejected. Brief facts of the present case are that one Bipin Kumar Agarwal admitted to tenancy Sri. Awadhesh Kumar Kesharwani, at 88 Zero Road, Allahabad. Bipin Kumar Agarwal instituted a suit for eviction of Awadhesh Kumar Kesharwani being SCC Suit No. 8 of 2001. In the said suit Awadhesh Kumar Kesharwani filed his written statement and in the written statement, it has been stated that one Gopal Ji i.e. the revisionist, was also tenant in the said premises. The premises is said to be a four doors shop. Three doors were admitted by Awadhesh Kumar Kesharwani is in his possession and one door was stated to be in Gopal Ji's possession. The suit was contested by Awadhesh Kumar Kesharwani and ultimately a decree of eviction was passed on 12.1.2012 directing Awadhesh Kumar Kesharwani, defendant to vacate the premises. For execution of the aforesaid decree, the plaintiff Bipin Kumar Agarwal instituted an execution case bearing Case No. 5 of 2012. After the decree dated 12.1.2012, it appears that Gopal Ji, the revisionist filed an application under order 21 Rule 97C.P.C. stating therein that he is third party in interest in possession of the portion of the shop in question and has an independent right with that of the defendant. The court below while considering the claim of the revisionist rejected the application holding that no material has been brought forward to indicate that he was a person in interest in the property in his own right to resist the delivery of possession to Bipin Kumar Agarwal. The sole material that was filed by Gopal Ji in his application under Order 21 Rule 98 C.P.C. was the averments made in the written statement filed by Awadhesh Kumar Kesharwani in the SCC Suit, by which it was stated that in one portion of the shop Gopal Ji is also a tenant. Secondly, it was stated that Gopal Ji was paying rent to Surendra Gupta. It is not disputed between the parties that Bipin Kumar Agarwal and Surendra Gupta are not in any manner related to each other. Secondly, it was stated that Gopal Ji was paying rent to Surendra Gupta. It is not disputed between the parties that Bipin Kumar Agarwal and Surendra Gupta are not in any manner related to each other. The second contention was with regard to the photocopy of electricity bill and sales tax registration certificate to press the claim that Gopal Ji is in possession of the property in question. Apart from these three material there was nothing to prove to the court below that at any point of time, Gopal Ji had any independent right of any manner over the property in question. 2. It is to be noted that the suit was filed in the year 2001 and from the averments made in the revision, Gopal Ji is claiming tenancy in the said property since 1998, but the electricity bill or connection is of 2003, which is after filing of the suit. The court below upon consideration of the aforesaid material has come to the conclusion that by the aforesaid documents, it is not proved conclusively that the revisionist has any independent right of its own over the property in question and rejected the application. 3. Sri. J. Nagar, learned senior Advocate and Sri. Ram Pal Singh, learned counsel for the revisionist have relied upon various decisions of Hon'ble Supreme Court. In the case of Shreenath and another v. Rajesh and others reported in (1998) 4 SCC 543 : ( AIR 1998 SC 1827 ), wherein it has been held that in the execution proceeding if a person other than judgment debtor is dispossessed from the immovable property by the decree holder. Such a person has the remedy to file objection under Order 21 Rule 97 and the same has to be decided prior to his dispossession. The Supreme Court in the aforesaid case has relied upon the decision of Noorduddin v. Dr. K.L. Anand (1994 AIR SCW 5093) and held that application under Order 21, 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 person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 4. Sri. 4. Sri. J. Nagar then relied upon the decision of H. Seshadri v. K.R. Natarajan & another reported in (2003) 10 SCC 449 : ( AIR 2003 SC 3524 ), wherein it has been held that an application under Order 21 Rule 99, and 100 what was required to be considered as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise. 5. Similarly, in another decision of Hon'ble Supreme Court in the case of N.S.S. Narayana Sharma and others v. Goldstone Exports (P) Ltd. and others reported in (2002) 1 SCC 662 : ( AIR 2002 SC 251 ), it has been held that it is enjoined upon the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from "any person" and if the person establishes his independent right then such right has to be adjudicated upon before order of dispossession. 6. In another decision of Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another reported in (1998) 3 SCC 723 : ( AIR 1998 SC 1754 ), the supreme Court held that the words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the re-sister raised it. The questions which the executing court is obliged to determine under Rule 101 must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties. 7. I have heard Sri. J. Nagar, learned Senior Advocate and Sri. Anil Kumar Bajpai appearing for the respondent No. 1. The respondent No. 2 is the judgment-debtor and hence, no notice is required to be given. 8. I have considered the decision relied upon by Sri. 7. I have heard Sri. J. Nagar, learned Senior Advocate and Sri. Anil Kumar Bajpai appearing for the respondent No. 1. The respondent No. 2 is the judgment-debtor and hence, no notice is required to be given. 8. I have considered the decision relied upon by Sri. J. Nagar, which clearly demonstrates that when a third party in interest establishes his independent right from that of the judgment-debtor, the question of his right title has to be considered under Order 21 Rule 98 C.P.C. and not relegate him to file a fresh suit for establishing his right. But it is also to be considered that resistance to a decree cannot be allowed merely for the sake of resistance. The questions must be relevant for consideration and determination between the parties. In the present case, the case set up is that the revisionist is in possession as a tenant on the property in question, for which he has relied upon certain documents. The said documents are electricity bills and the sales tax registration certificate, which the court below has categorically held that such documents are not conclusive evidence for deciding the question as to whether the revisionist has any independent right over the property in question to resist the decree holder from possession. The electricity bills are admittedly of the year after filing of the suit in 2001 whereas the right over the property has been claimed since 1998. Similarly mere filing of sales tax registration ipso facto would not mean that the revisionist was in possession over the property in question to resist the decree holder. From other material it has to be shown that he has independent right other than that of the judgment-debtor to file objection under Order 21 Rule 98 C.P.C. No such material having been shown, the court below has not committed any error in rejecting the application. There is no merit in the revision. It is accordingly dismissed.