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2015 DIGILAW 953 (HP)

Manohar Lal v. Kusum Lata Malhotra

2015-07-27

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. This appeal is directed against the order dated 1.7.2015 rendered by the Additional District Judge (II), Shimla in Execution Petition No.35-S/10 of 14/2009. 2. “Key facts” necessary for the adjudication of this appeal are that the judgment and decree dated 21.1.2009 was passed in Civil Suit No.4-S/1 of 2008 in favour of respondent No.1 and against the defendant. The decree holder filed Execution Petition bearing No. 35-S/10 of 14/2009 before the Additional District Judge, Shimla for the execution of judgment and decree dated 21.1.2009. The appellant also filed an application under order 21 rule 97 read with section 151 of the Code of Civil Procedure. The decree holder also filed an application under sections 94 and 151 of the Code of Civil Procedure to provide police assistance for taking over the possession. The Executing Court has dismissed the application preferred by the appellant under order 21 rule 97 read with section 151 of the Code of Civil Procedure on 1.7.2015 and allowed the application preferred by the decree holder under sections 94 and 151. 3. The appellant has precisely contended in his application preferred under order 21 rule 97 of the Code of Civil Procedure that judgment debtor was missing since first week of November, 2007. Report to this effect was lodged with the Police Station (West), Shimla on 16.12.2007. His whereabouts were not known. Sale deed dated 11.2.2015 was also in nullity. Devi Saran was an agriculturist and had no source of income except the ancestral/coparcenary property. The possession of Devi Saran and other legal heirs could not be disturbed. 4. The application was contested by the decree holder. According to her, objector had also taken similar plea in the previous objections. These were dismissed on 21.5.2014. Defendant preferred CMPMO No. 125 of 2015 before this Court. The Court has upheld the order dated 21.5.2014. Devi Saran and his sons never constituted a Hindu undivided family. Filing of the objections after objections was gross misuse of process of law. Objections raised on the similar grounds were rejected on 21.5.2014. This Court has made the following observations while upholding the order dated 21.5.2014 on 20.4.2015: “11. The Court has upheld the order dated 21.5.2014. Devi Saran and his sons never constituted a Hindu undivided family. Filing of the objections after objections was gross misuse of process of law. Objections raised on the similar grounds were rejected on 21.5.2014. This Court has made the following observations while upholding the order dated 21.5.2014 on 20.4.2015: “11. In the instant case, it was incumbent upon the petitioner to establish by tangible evidence that the whereabouts of judgment debtor were not known and he was not heard for the last seven years, at the time of filing of the suit. Appropriate inquiry is also required to be held to prove that the person is not heard for the last seven years. It has come in the statement of daughter-in-law of the judgment debtor that infact, judgment debtor was living in Delhi for the last 2-3 years. This statement was made by the daughter-in-law of the judgment debtor in the year 2009. Merely filing the complaint before the Police Station, Boileauganj, would not establish that the judgment debtor is not alive.” 5. The judgment and decree is dated 21.1.2009 and till date the same has not been executed. 6. Mr. R.K. Bawa, learned Senior Advocate has also argued that detailed inquiry was to be made after framing issues in an application preferred under order 21 rule 97 of the Code of Civil Procedure. 7. The grounds taken in the application preferred under order 21 rule 97 of the Code of Civil Procedure have already been adjudicated by the Executing Court on 21.5.2014, which is upheld by this Court on 20.4.2015. The appellant cannot be permitted to raise the same issues time and again to defeat the judgment and decree dated 21.1.2009. 7. Their Lordships of the Hon’ble Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 SC 1754 have held that the words “all questions arising between the parties to a proceeding in an application under rule 97” would envelop only such questions as would legally arise for determination between those parties. The Court is not obliged to determine a question merely because the resistor raised it. These questions must be relevant for consideration and determination between the parties and those questions should have legal arisen between the parties. The Court is not obliged to determine a question merely because the resistor raised it. These questions must be relevant for consideration and determination between the parties and those questions should have legal arisen between the parties. Their Lordships have further held that the adjudication need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Their Lordships have held as under: “10. It is true that R. 99 of O. 21 is not available to any person until he is dispossessed of immovable property by the decreeholder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. 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 resistor raised it. 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 resistor raised it. The questions which 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, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decreeholder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the subsection. 12-13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” 8. Learned Single Judge of Punjab and Haryana High Court in Som Parkash vs. Santosh Rani and another, AIR 1997 Punjab and Haryana 130 has held that the term “adjudication” as used in order 21 rules 97 and 98 does not start and end with the framing of the issues but it requires appreciation of the case of the objector and the documents in support of such objections. Adjudication does not mean that framing of issues is always necessary for the executing court. Learned Single Judge has held as under: “[11] Summing up the above discussion, I hold that the term 'adjudication' as used under Order 21, Rules 97 and 98, C.P.C., does not start and end with the framing of the issues but it requires appreciation of the case of the objector and the documents in support of such objections. In the present case the executing Court did apply its mind to the objections as well as the various orders which were passed intra parties and then came to the conclusion that the objections of the objector had no force and he was bound to deliver the possession in pursuance of the ejectment order being a person inducted by the original tenant Sunil Kumar.” 9. Thus, there is no merit in the contention of Mr. R.K. Bawa, learned Senior Advocate that issues were to be framed and detailed inquiry was to be gone into. The executing court has correctly decided the application on the basis of facts placed before it. There is neither any illegality nor any perversity in the order dated 1.7.2015 whereby the application preferred by the appellant under order 21 rule 97 of the Code of Civil Procedure has been dismissed. The order is upheld to the extent whereby the police assistance has been permitted by the Executing Court for the purpose of taking over the possession. 10. Accordingly, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.