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2018 DIGILAW 320 (GAU)

Basanta Das v. Subhan Chandra Sarma

2018-02-20

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : A.K. Goswami, J. Heard Mr. N.N. Karmakar, learned counsel for the petitioner. Also heard Mr. R.K. Bhuyan, learned counsel, appearing for the respondent No. 1/decree-holder. None appears for the respondent No. 2. 2. By this application under Article 227 of the Constitution of India, the petitioner prays for the following relief’s:- "(a) quash and set aside the impugned order dated 05.03.2014 (Annexure-2) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (b) set aside the impugned order dated 12.9.2017 (Annexure-6) passed in Misc. (J) Case No. 81/2017 in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (c) set aside the impugned order dated 12.09.2017 (Annexure-7) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (d) remand the proceedings to re-decide the application dated 23.05.2013 of the respondent No. 1 decree-holder by treating it to be one under Order 21, Rule 97 for removal of obstruction of the petitioner and after hearing the decree-holder as well as the petitioner to adjudicate the claim of the petitioner and to pass appropriate orders under Order 21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98 CPC. (e) pass any such other and further order orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. AND For the interim relief, it is most respectfully prayed that this Hon'ble Court, for the ends of justice, may graciously be pleased to stay the operation of the impugned order dated 12.09.2017 (Annexure-7) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M). Guwahati pending final disposal of the instant petition." 3. Art affidavit is also filed by the respondent No. 1 opposing this application. 4. The proximate cause of action for the approach to this Court is the order dated 12.09.2017 passed by learned Munsiff No. 1, Kamrup (M) at Guwahati in Title Execution Case No. 4/2013 as well as the order dated 12.09.2017 passed in Misc. (J) Case No. 81/2017. By the order passed in Misc. (J) Case No. 81/2017, the application filed by the petitioner on 14.03.2017 under section 151 of the CPC, which was registered as Petition No. 974 was rejected. 5. At the outset, it will be necessary to notice the relevant facts for the purpose of disposal of this petition. 6. (J) Case No. 81/2017. By the order passed in Misc. (J) Case No. 81/2017, the application filed by the petitioner on 14.03.2017 under section 151 of the CPC, which was registered as Petition No. 974 was rejected. 5. At the outset, it will be necessary to notice the relevant facts for the purpose of disposal of this petition. 6. From the copy of the plaint in Title Suit No. 308/2009, the decree passed in which ultimately culminated in launching the Title Execution Case No. 4/2013, produced before the Court by Mr. Bhuyan, it appears that the respondent No. 1 filed a suit praying for a decree declaring that the Schedule-A land and house, as described and appended to the plaint, is the joint property of the plaintiff and the defendant Nos. 1 & 2 and the defendant Nos. 1 & 2 have no right to transfer or alienate the said land and house without the same being partitioned in between the plaintiff and defendant Nos. 1 & 2 to any other person or persons including defendant No. 3, a decree for confirmation of possession of the plaintiff over the Schedule-A land and house as described in the plaint, a decree for recovery of possession of Schedule-B room, which is the part of the Assam Type house, described in Schedule-A by evicting the defendant No. 3 and his men and belongings there from, a decree for permanent injunction restraining the defendant Nos. 1 and 2 from alienating and transferring the said Schedule-A land and house to any other person or persons including the defendant No. 3 and restraining the defendant Nos. 1 to 3 from disturbing the peaceful possession of the plaintiff over the same. 7. The suit was filed on 15.07.2009 and in Misc. (J) Case No. 490/2009, an ad-interim injunction was granted by order dated 16.07.2009 restraining the defendant No. 3 from dispossessing the plaintiff from the house and land in Schedule-A of the plaint. 8. As the petitioner has not produced the judgment passed in the aforesaid title suit and as the respondent No. 1 had also not annexed the said judgment in the affidavit filed, copy of the judgment was handed over during the course of the proceedings for perusal of the Court. 8. As the petitioner has not produced the judgment passed in the aforesaid title suit and as the respondent No. 1 had also not annexed the said judgment in the affidavit filed, copy of the judgment was handed over during the course of the proceedings for perusal of the Court. It appears from the judgment & decree dated 12.12.2012 passed in the aforesaid title suit that a declaration was granted that Schedule-A property as described in the plaint is the joint property of the plaintiff and the defendant Nos. 1 & 2 and the defendant Nos. 1 & 2 have no right to transfer or alienate the said land and house without the same being partitioned. The possession of the plaintiff was confirmed over that portion of Schedule-A land and house, which he is presently occupying until the same is partitioned by due procedure of law. The decree was thereby passed for recovery of possession of Schedule-B room by evicting the defendant No. 3 and his men and belongings therefrom. The defendant Nos. 1 to 3 were further restrained from disturbing the peaceful possession of the plaintiff over the portion of land and part of Assam Type house, which is under his possession till partitioned. 9. To execute the decree, the respondent No. 1 instituted Title Execution Case No. 4/2013. From the order dated 05.03.2014, to which further reference will be made subsequently, passed in the said execution case, it is seen that on the basis of the report submitted by the Nazir about his inability to execute the decree on the ground that the instant petitioner was resisting the execution and was occupying the suit land, a notice was issued to the petitioner. 10. On receipt of the notice, the petitioner filed a petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC. In the said petition, amongst others, it is stated that the defendant No. 3 in the suit had purchased the suit land vide sale deed No. 6718/2009 dated 12.06.2009 and he had entered into an agreement with the petitioner for sale of said plot of land and in connection thereto, the petitioner had paid a "huge amount of money" to the defendant No. 3 and had also entered into an agreement. He had been in possession of the said land and despite all the parties to the suit being aware of the said position, he was not made party to the suit and, therefore, he is not covered by the judgment & decree passed in the suit being a "bonafide purchaser" and the decree cannot be enforced against him. 11. It is noticeable that in the said petition, the petitioner had not mentioned the date of the agreement and the amount of money paid and it is also not indicated how he became a "bonafide purchaser" of the suit land, as in the said petition, there was no reference to execution of the sale deed. In the present petition filed before this Court, a statement is made at Paragraph-3 that the defendant No. 3 in the suit (who is arrayed as respondent No. 2 in the present proceeding) had executed an unregistered written agreement for sale at Rs. 10,00,000/- on 09.09.2009 on receipt of a sum of Rs. 5,00,000/- with the understanding that on receipt of payment of the balance amount of Rs. 5,00,000/-, the sale deed would be registered, which was, however, not registered by the defendant No. 3. 12. The aforesaid petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC was rejected by the order dated 05.03.2014 holding that the petitioner herein had failed to prove that he has right, title and interest over the suit land and, therefore, the decree was enforceable against him. 13. Mr. Karmakar has submitted that in view of the judgment of the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Pasad Jaiswal & Anr., reported in (1997) 3 SCC 694 , it must be held by this Court that the order dated 05.03.2014 passed on an application filed by the petitioner under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC is non-est in law. He has submitted that as the decree could not be executed because of obstruction, it was imperative for the decree holder to have filed an application under Order 21, Rule 97 CPC, which was not so done and, therefore, no direction can be issued by the learned executing Court for execution of the decree. Mr. He has submitted that as the decree could not be executed because of obstruction, it was imperative for the decree holder to have filed an application under Order 21, Rule 97 CPC, which was not so done and, therefore, no direction can be issued by the learned executing Court for execution of the decree. Mr. Karmakar submits that the learned executing Court was wrong in holding that the decision of Brahmdeo Chaudhary (supra) is not applicable to the facts and circumstances of the case. 14. Mr. Bhuyan has submitted that a finding of fact had been recorded that the petitioner has no independent right, title and interest in the suit property and he cannot be termed as stranger as he seeks to climb into the shoes of the judgment-debtor No. 3 and, therefore, he is bound by the decree. It is submitted that even the alleged unregistered agreement for sale with the defendant No. 3 was executed during the pendency of the suit. He has submitted that the finding that the petitioner does not have independent right, title and interest has attained finality as petitions filed by the petitioner challenging the same very order dated 05.03.2014 before this Court had been dismissed earlier. He submits that the learned executing Court rightly held that the ratio of Brahmdeo Chaudhary (supra) cannot be applied in the facts and circumstances of the case. 15. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 16. The question that had fallen for consideration in Brahmdeo Chaudhary (supra) was as to whether the appellant, who claims to be a stranger, occupying decreetal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree-holder against the judgment-debtor qua such property can request the executing Court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order 21, Rule 99 Code of Civil Procedure. In Brahmdeo Chaudhary (supra), the Supreme Court was concerned with the situation in which the appellant resisted the execution proceeding on the ground that he was a stranger to the decree and claimed an independent interest in the immovable property, possession of which was decreed in favour of the decree-holder. In Brahmdeo Chaudhary (supra), the Supreme Court was concerned with the situation in which the appellant resisted the execution proceeding on the ground that he was a stranger to the decree and claimed an independent interest in the immovable property, possession of which was decreed in favour of the decree-holder. Order 21, Rule 35 CPC provides that a warrant for possession can be straightway sought against persons occupying immovable property which is the subject-matter of decree by the decree-holder provided such persons who are occupying the suit property are judgment-debtors or persons claiming through the former. Once, resistance is offered in execution of the decree, recourse has to be taken under Order 21, Rule 97 CPC and in the facts of the case, the Supreme Court in Brahmdeo Chaudhary (supra) held the application filed under Order 21, Rule 35 CPC to be actually falling under the scope and ambit of Order 21, Rule 97 CPC. 17. Order 21, Rule 97 reads as follows:- "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." 18. The words "any person" as contemplated by Order 21, Rule 97 sub-rule (1) are comprehensive enough to include, apart from, the judgment-debtor or any one claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. When an application under Order 21, Rule 97 CPC is moved, a lis arises between the decree-holder, applicant under Order 21, Rule 97 on the one hand and such obstructionist or resisting party on the other. When such a lis arises, the application has to be adjudicated upon in accordance with the provisions contained in Order 21, Rule 97 sub-rule (2) of the CPC. 19. When such a lis arises, the application has to be adjudicated upon in accordance with the provisions contained in Order 21, Rule 97 sub-rule (2) of the CPC. 19. On a conjoint reading of Order 21 Rules 97, 98, 99, 100 and 101 CPC, the Supreme Court held that the following picture emerges: "(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98. sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substance-less, it has to be dismissed. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substance-less, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appeal able before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101." 20. Perusal of the order dated 05.03.2014 goes to show that on receipt of the report of the Nazir, notice was issued to the petitioner, who upon responding to the said notice, filed the application under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC. Basically, it was an objection to the execution of the decree in which a finding was recorded by the Court on 05.03.2014 that the petitioner had no right, title and interest in the suit property. It is also noticed that the unregistered agreement for sale was entered into on 09.09.2009 during the pendency of the suit, which was filed on 15.07.2009. The petitioner had assailed the order dated 5.3.2014 by filing a petition before this Court, which was registered as CRP (I/O) No. 28/2014 and the said revision petition was closed by an order dated 30.04.2014 as not maintainable on the ground that an appeal lies before the Civil Judge under the provisions of the Bengal, Bihar, Agra, Assam Civil Courts Act, 1887. The petitioner, thereafter, preferred an appeal, which was registered as Misc. Appeal No. 14/2014 in the Court of the learned Civil Judge No. 1, Kamrup (M) at Guwahati. 21. The respondent No. 1 in his affidavit has enclosed the judgment dated 13.03.2015 passed in Misc. Appeal No. 14/2014, whereby the appeal was dismissed. Against this judgment, no further appeal or revision had been preferred and, therefore, the order dated 05.03.2014 had attained its finality. 22. It, however, appears that the petitioner, after dismissal of Misc. 21. The respondent No. 1 in his affidavit has enclosed the judgment dated 13.03.2015 passed in Misc. Appeal No. 14/2014, whereby the appeal was dismissed. Against this judgment, no further appeal or revision had been preferred and, therefore, the order dated 05.03.2014 had attained its finality. 22. It, however, appears that the petitioner, after dismissal of Misc. Appeal No. 14/2014, filed an application under section 47 of the CPC in the Court of the learned Munsiff No. 1, Kamrup (M) at Guwahati. Copy of the said application is not annexed with the present petition. On the basis of the said petition, Misc. Case No. 96/2015 in Title Execution Case No. 4/2013 was registered and the said Misc. Case was dismissed by an order dated 15.06.2015. 23. A perusal of the order dated 15.06.2015 goes to show that in the said application, it is stated that the Court had accepted a wrong petition being Petition No. 6730/2013 (the petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC filed by the petitioner) and the said petition ought to have been rejected. Contention was advanced by the petitioner, as noticed from the said order, urging the Court to determine as to whether the order dated 05.03.2014 passed by the Court has the force of a decree and as to whether the said order is a nullity. The said application was dismissed holding that the order dated 05.03.2014 had attained finality and that the petitioner is bound to vacate/hand over the suit land to the decree-holder as he had occupied the suit land by virtue of an agreement executed by the judgment-debtor/defendant No. 3. 24. Challenging the legality and validity of the said order, the petitioner again filed an application under Article 227 of the Constitution of India, which was registered as CRP No. 299/2015. The said revision petition was dismissed on 03.02.2017. The petitioner has not enclosed the copy of the order but the same is enclosed with the affidavit of the respondent No. 1. The order reads as under:- "None appears on call for the petitioner. Mr. K. Saikia appears for the respondent No. 1, Mr. A.S. Ahmed appears for the respondent No. 2 and Mr. B.K. Das appears for the respondent No. 4. Other respondents are absent on call. The order reads as under:- "None appears on call for the petitioner. Mr. K. Saikia appears for the respondent No. 1, Mr. A.S. Ahmed appears for the respondent No. 2 and Mr. B.K. Das appears for the respondent No. 4. Other respondents are absent on call. By order dated 27.07.2015, this Court had directed the petitioner to take steps for service of notice on the respondent No. 3. It appears that, thereafter, such steps were not taken. Thereafter, by orders dated 19.05.2016 and 19.07.2016 passed in the proceedings before the Lawazima Court, the petitioner was directed to take steps for service of notice on the respondent No. 3, but such steps were not also taken. Non-taking of steps on the respondent No. 3 is further reflected in the office notes dated 15.07.2016, 21.09.2016 and 25.01.2017. None appeared for the petitioner on call on 26.09.2016 when the matter was last listed before this Court. Even today, learned counsel for the petitioner is not present when the matter is called for. Moreover, this case has been listed in the Cause List under heading "III-[Order](No steps)" despite which there is no representation by the petitioner. Therefore, this revision is dismissed for not taking steps. Let the LCR be returned forthwith." 25. The petitioner has not mentioned in the petition that for revival of the civil revision petition by setting aside order dated 3.2.2017, an application was filed. The respondent No. 1 in his affidavit has enclosed the copy of the order dated 25.08.2017 passed in Misc. Case No. 24/2017, from which it is apparent that the said application was also dismissed for non-prosecution on 25.08.2017. The order reads as under:- "None appears on call for the applicant. However, Mr. K. Sarma, the learned counsel appearing for the respondent is present. The applicant remained unrepresented when the matter was last called on 26.04.2017 and 21.07.2017. Accordingly, this application which is for setting aside the order dated 03.02.2017, by which CRP 299/2015 was dismissed for not taking of the steps is also dismissed for non-prosecution." 26. Thereafter, before the executing Court, the petitioner filed an application under section 151 CPC, which was registered as Petition No. 974 (copy of which is not enclosed), which was registered as Misc. (J) Case No. 81/2017. Thereafter, before the executing Court, the petitioner filed an application under section 151 CPC, which was registered as Petition No. 974 (copy of which is not enclosed), which was registered as Misc. (J) Case No. 81/2017. It will be profitable to extract a portion of the order, wherein the points urged in the applicant have been reflected:- "Both the sides are represented. By this order, petition No. 974 tiled by the petitioner under section 151 CPC is taken up for disposal. The petitioner has stated inter alia that the order dated 5.3.2014 in T.Ex. No. 4/13 was passed after receiving report of resistance from Nazir but not after receiving any application from the Respondent No. 1/Decree holder. That said order contains a decision that the petitioner has failed to prove his right, title and interest over the suit land and therefore, the decree is enforceable against him. The said order involves abuse of the following procedure of law: 1. That the said order dated 5.3.2014 was passed without following the law laid down in Order 21, Rule 97, 98 and 101 to 106. 2. That the Court issued notice upon the petitioner suo moto upon the report of Civil Nazir. 3. That petition No. 6730/13 filed by the petitioner ought to have been returned by the Court. But, instead same was tried and determined judicially by the Court without following procedure of law. 4. That the order dated 5.3.14 is against the law declared by the Hon'ble Apex Court in Brahmadeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694 . On the basis of the above averments, the petitioner has prayed for striking out the order dated 5.3.2014 in T. Ex. 4/13." 27. A perusal of the above would go to show that once again it was sought to be urged that the order dated 05.03.2014 is bad in law. The petition having been dismissed, the present application is filed. As noted earlier, order dated 05.03.2014 had attained finality long back and order dated 12.09.2017 in Misc. (J) Case No. 81/2017 is reiteration of the said order dated 05.03.2014. Order dated 12.09.2017 passed in Title Execution Case No. 81/2017 is only a consequential order, whereby fresh writ was issued for execution of the decree. 28. In view of the above discussions, no case is made out for interference and accordingly, the petition is dismissed. (J) Case No. 81/2017 is reiteration of the said order dated 05.03.2014. Order dated 12.09.2017 passed in Title Execution Case No. 81/2017 is only a consequential order, whereby fresh writ was issued for execution of the decree. 28. In view of the above discussions, no case is made out for interference and accordingly, the petition is dismissed. No cost. IN THE HIGH COURT OF GAUHATI A.K. Goswami, J. Basanta Das - Appellant Vs. Subhan Chandra Sarma - Respondent Crp (I/O) No. 312 of 2017 Decided On : 20-02-2018 Advocates Appeared : For the Petitioner : Mr. N.N. Karmakar, Advocate For the Respondents : Mr. R.K. Bhuyan, Advocate Cases Referred : Brahmadeo Chaudhary Vs. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 JUDGMENT & ORDER : A.K. Goswami, J. Heard Mr. N.N. Karmakar, learned counsel for the petitioner. Also heard Mr. R.K. Bhuyan, learned counsel, appearing for the respondent No. 1/decree-holder. None appears for the respondent No. 2. 2. By this application under Article 227 of the Constitution of India, the petitioner prays for the following relief’s:- "(a) quash and set aside the impugned order dated 05.03.2014 (Annexure-2) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (b) set aside the impugned order dated 12.9.2017 (Annexure-6) passed in Misc. (J) Case No. 81/2017 in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (c) set aside the impugned order dated 12.09.2017 (Annexure-7) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M), Guwahati; (d) remand the proceedings to re-decide the application dated 23.05.2013 of the respondent No. 1 decree-holder by treating it to be one under Order 21, Rule 97 for removal of obstruction of the petitioner and after hearing the decree-holder as well as the petitioner to adjudicate the claim of the petitioner and to pass appropriate orders under Order 21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98 CPC. (e) pass any such other and further order orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. AND For the interim relief, it is most respectfully prayed that this Hon'ble Court, for the ends of justice, may graciously be pleased to stay the operation of the impugned order dated 12.09.2017 (Annexure-7) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M). Guwahati pending final disposal of the instant petition." 3. AND For the interim relief, it is most respectfully prayed that this Hon'ble Court, for the ends of justice, may graciously be pleased to stay the operation of the impugned order dated 12.09.2017 (Annexure-7) passed in T.Ex.4/2013 by the Court of Munsiff No. 1, Kamrup (M). Guwahati pending final disposal of the instant petition." 3. Art affidavit is also filed by the respondent No. 1 opposing this application. 4. The proximate cause of action for the approach to this Court is the order dated 12.09.2017 passed by learned Munsiff No. 1, Kamrup (M) at Guwahati in Title Execution Case No. 4/2013 as well as the order dated 12.09.2017 passed in Misc. (J) Case No. 81/2017. By the order passed in Misc. (J) Case No. 81/2017, the application filed by the petitioner on 14.03.2017 under section 151 of the CPC, which was registered as Petition No. 974 was rejected. 5. At the outset, it will be necessary to notice the relevant facts for the purpose of disposal of this petition. 6. From the copy of the plaint in Title Suit No. 308/2009, the decree passed in which ultimately culminated in launching the Title Execution Case No. 4/2013, produced before the Court by Mr. Bhuyan, it appears that the respondent No. 1 filed a suit praying for a decree declaring that the Schedule-A land and house, as described and appended to the plaint, is the joint property of the plaintiff and the defendant Nos. 1 & 2 and the defendant Nos. 1 & 2 have no right to transfer or alienate the said land and house without the same being partitioned in between the plaintiff and defendant Nos. 1 & 2 to any other person or persons including defendant No. 3, a decree for confirmation of possession of the plaintiff over the Schedule-A land and house as described in the plaint, a decree for recovery of possession of Schedule-B room, which is the part of the Assam Type house, described in Schedule-A by evicting the defendant No. 3 and his men and belongings there from, a decree for permanent injunction restraining the defendant Nos. 1 and 2 from alienating and transferring the said Schedule-A land and house to any other person or persons including the defendant No. 3 and restraining the defendant Nos. 1 to 3 from disturbing the peaceful possession of the plaintiff over the same. 7. 1 and 2 from alienating and transferring the said Schedule-A land and house to any other person or persons including the defendant No. 3 and restraining the defendant Nos. 1 to 3 from disturbing the peaceful possession of the plaintiff over the same. 7. The suit was filed on 15.07.2009 and in Misc. (J) Case No. 490/2009, an ad-interim injunction was granted by order dated 16.07.2009 restraining the defendant No. 3 from dispossessing the plaintiff from the house and land in Schedule-A of the plaint. 8. As the petitioner has not produced the judgment passed in the aforesaid title suit and as the respondent No. 1 had also not annexed the said judgment in the affidavit filed, copy of the judgment was handed over during the course of the proceedings for perusal of the Court. It appears from the judgment & decree dated 12.12.2012 passed in the aforesaid title suit that a declaration was granted that Schedule-A property as described in the plaint is the joint property of the plaintiff and the defendant Nos. 1 & 2 and the defendant Nos. 1 & 2 have no right to transfer or alienate the said land and house without the same being partitioned. The possession of the plaintiff was confirmed over that portion of Schedule-A land and house, which he is presently occupying until the same is partitioned by due procedure of law. The decree was thereby passed for recovery of possession of Schedule-B room by evicting the defendant No. 3 and his men and belongings therefrom. The defendant Nos. 1 to 3 were further restrained from disturbing the peaceful possession of the plaintiff over the portion of land and part of Assam Type house, which is under his possession till partitioned. 9. To execute the decree, the respondent No. 1 instituted Title Execution Case No. 4/2013. From the order dated 05.03.2014, to which further reference will be made subsequently, passed in the said execution case, it is seen that on the basis of the report submitted by the Nazir about his inability to execute the decree on the ground that the instant petitioner was resisting the execution and was occupying the suit land, a notice was issued to the petitioner. 10. On receipt of the notice, the petitioner filed a petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC. 10. On receipt of the notice, the petitioner filed a petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC. In the said petition, amongst others, it is stated that the defendant No. 3 in the suit had purchased the suit land vide sale deed No. 6718/2009 dated 12.06.2009 and he had entered into an agreement with the petitioner for sale of said plot of land and in connection thereto, the petitioner had paid a "huge amount of money" to the defendant No. 3 and had also entered into an agreement. He had been in possession of the said land and despite all the parties to the suit being aware of the said position, he was not made party to the suit and, therefore, he is not covered by the judgment & decree passed in the suit being a "bonafide purchaser" and the decree cannot be enforced against him. 11. It is noticeable that in the said petition, the petitioner had not mentioned the date of the agreement and the amount of money paid and it is also not indicated how he became a "bonafide purchaser" of the suit land, as in the said petition, there was no reference to execution of the sale deed. In the present petition filed before this Court, a statement is made at Paragraph-3 that the defendant No. 3 in the suit (who is arrayed as respondent No. 2 in the present proceeding) had executed an unregistered written agreement for sale at Rs. 10,00,000/- on 09.09.2009 on receipt of a sum of Rs. 5,00,000/- with the understanding that on receipt of payment of the balance amount of Rs. 5,00,000/-, the sale deed would be registered, which was, however, not registered by the defendant No. 3. 12. The aforesaid petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC was rejected by the order dated 05.03.2014 holding that the petitioner herein had failed to prove that he has right, title and interest over the suit land and, therefore, the decree was enforceable against him. 13. Mr. 12. The aforesaid petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC was rejected by the order dated 05.03.2014 holding that the petitioner herein had failed to prove that he has right, title and interest over the suit land and, therefore, the decree was enforceable against him. 13. Mr. Karmakar has submitted that in view of the judgment of the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Pasad Jaiswal & Anr., reported in (1997) 3 SCC 694 , it must be held by this Court that the order dated 05.03.2014 passed on an application filed by the petitioner under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC is non-est in law. He has submitted that as the decree could not be executed because of obstruction, it was imperative for the decree holder to have filed an application under Order 21, Rule 97 CPC, which was not so done and, therefore, no direction can be issued by the learned executing Court for execution of the decree. Mr. Karmakar submits that the learned executing Court was wrong in holding that the decision of Brahmdeo Chaudhary (supra) is not applicable to the facts and circumstances of the case. 14. Mr. Bhuyan has submitted that a finding of fact had been recorded that the petitioner has no independent right, title and interest in the suit property and he cannot be termed as stranger as he seeks to climb into the shoes of the judgment-debtor No. 3 and, therefore, he is bound by the decree. It is submitted that even the alleged unregistered agreement for sale with the defendant No. 3 was executed during the pendency of the suit. He has submitted that the finding that the petitioner does not have independent right, title and interest has attained finality as petitions filed by the petitioner challenging the same very order dated 05.03.2014 before this Court had been dismissed earlier. He submits that the learned executing Court rightly held that the ratio of Brahmdeo Chaudhary (supra) cannot be applied in the facts and circumstances of the case. 15. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 16. He submits that the learned executing Court rightly held that the ratio of Brahmdeo Chaudhary (supra) cannot be applied in the facts and circumstances of the case. 15. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 16. The question that had fallen for consideration in Brahmdeo Chaudhary (supra) was as to whether the appellant, who claims to be a stranger, occupying decreetal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree-holder against the judgment-debtor qua such property can request the executing Court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order 21, Rule 99 Code of Civil Procedure. In Brahmdeo Chaudhary (supra), the Supreme Court was concerned with the situation in which the appellant resisted the execution proceeding on the ground that he was a stranger to the decree and claimed an independent interest in the immovable property, possession of which was decreed in favour of the decree-holder. Order 21, Rule 35 CPC provides that a warrant for possession can be straightway sought against persons occupying immovable property which is the subject-matter of decree by the decree-holder provided such persons who are occupying the suit property are judgment-debtors or persons claiming through the former. Once, resistance is offered in execution of the decree, recourse has to be taken under Order 21, Rule 97 CPC and in the facts of the case, the Supreme Court in Brahmdeo Chaudhary (supra) held the application filed under Order 21, Rule 35 CPC to be actually falling under the scope and ambit of Order 21, Rule 97 CPC. 17. Order 21, Rule 97 reads as follows:- "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." 18. (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." 18. The words "any person" as contemplated by Order 21, Rule 97 sub-rule (1) are comprehensive enough to include, apart from, the judgment-debtor or any one claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. When an application under Order 21, Rule 97 CPC is moved, a lis arises between the decree-holder, applicant under Order 21, Rule 97 on the one hand and such obstructionist or resisting party on the other. When such a lis arises, the application has to be adjudicated upon in accordance with the provisions contained in Order 21, Rule 97 sub-rule (2) of the CPC. 19. On a conjoint reading of Order 21 Rules 97, 98, 99, 100 and 101 CPC, the Supreme Court held that the following picture emerges: "(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98. sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substance-less, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appeal able before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101." 20. Perusal of the order dated 05.03.2014 goes to show that on receipt of the report of the Nazir, notice was issued to the petitioner, who upon responding to the said notice, filed the application under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC. Basically, it was an objection to the execution of the decree in which a finding was recorded by the Court on 05.03.2014 that the petitioner had no right, title and interest in the suit property. It is also noticed that the unregistered agreement for sale was entered into on 09.09.2009 during the pendency of the suit, which was filed on 15.07.2009. It is also noticed that the unregistered agreement for sale was entered into on 09.09.2009 during the pendency of the suit, which was filed on 15.07.2009. The petitioner had assailed the order dated 5.3.2014 by filing a petition before this Court, which was registered as CRP (I/O) No. 28/2014 and the said revision petition was closed by an order dated 30.04.2014 as not maintainable on the ground that an appeal lies before the Civil Judge under the provisions of the Bengal, Bihar, Agra, Assam Civil Courts Act, 1887. The petitioner, thereafter, preferred an appeal, which was registered as Misc. Appeal No. 14/2014 in the Court of the learned Civil Judge No. 1, Kamrup (M) at Guwahati. 21. The respondent No. 1 in his affidavit has enclosed the judgment dated 13.03.2015 passed in Misc. Appeal No. 14/2014, whereby the appeal was dismissed. Against this judgment, no further appeal or revision had been preferred and, therefore, the order dated 05.03.2014 had attained its finality. 22. It, however, appears that the petitioner, after dismissal of Misc. Appeal No. 14/2014, filed an application under section 47 of the CPC in the Court of the learned Munsiff No. 1, Kamrup (M) at Guwahati. Copy of the said application is not annexed with the present petition. On the basis of the said petition, Misc. Case No. 96/2015 in Title Execution Case No. 4/2013 was registered and the said Misc. Case was dismissed by an order dated 15.06.2015. 23. A perusal of the order dated 15.06.2015 goes to show that in the said application, it is stated that the Court had accepted a wrong petition being Petition No. 6730/2013 (the petition under Order 21 Rules 98, 99, 100 and 101 read with section 151 CPC filed by the petitioner) and the said petition ought to have been rejected. Contention was advanced by the petitioner, as noticed from the said order, urging the Court to determine as to whether the order dated 05.03.2014 passed by the Court has the force of a decree and as to whether the said order is a nullity. The said application was dismissed holding that the order dated 05.03.2014 had attained finality and that the petitioner is bound to vacate/hand over the suit land to the decree-holder as he had occupied the suit land by virtue of an agreement executed by the judgment-debtor/defendant No. 3. 24. The said application was dismissed holding that the order dated 05.03.2014 had attained finality and that the petitioner is bound to vacate/hand over the suit land to the decree-holder as he had occupied the suit land by virtue of an agreement executed by the judgment-debtor/defendant No. 3. 24. Challenging the legality and validity of the said order, the petitioner again filed an application under Article 227 of the Constitution of India, which was registered as CRP No. 299/2015. The said revision petition was dismissed on 03.02.2017. The petitioner has not enclosed the copy of the order but the same is enclosed with the affidavit of the respondent No. 1. The order reads as under:- "None appears on call for the petitioner. Mr. K. Saikia appears for the respondent No. 1, Mr. A.S. Ahmed appears for the respondent No. 2 and Mr. B.K. Das appears for the respondent No. 4. Other respondents are absent on call. By order dated 27.07.2015, this Court had directed the petitioner to take steps for service of notice on the respondent No. 3. It appears that, thereafter, such steps were not taken. Thereafter, by orders dated 19.05.2016 and 19.07.2016 passed in the proceedings before the Lawazima Court, the petitioner was directed to take steps for service of notice on the respondent No. 3, but such steps were not also taken. Non-taking of steps on the respondent No. 3 is further reflected in the office notes dated 15.07.2016, 21.09.2016 and 25.01.2017. None appeared for the petitioner on call on 26.09.2016 when the matter was last listed before this Court. Even today, learned counsel for the petitioner is not present when the matter is called for. Moreover, this case has been listed in the Cause List under heading "III-[Order](No steps)" despite which there is no representation by the petitioner. Therefore, this revision is dismissed for not taking steps. Let the LCR be returned forthwith." 25. The petitioner has not mentioned in the petition that for revival of the civil revision petition by setting aside order dated 3.2.2017, an application was filed. The respondent No. 1 in his affidavit has enclosed the copy of the order dated 25.08.2017 passed in Misc. Case No. 24/2017, from which it is apparent that the said application was also dismissed for non-prosecution on 25.08.2017. The order reads as under:- "None appears on call for the applicant. However, Mr. The respondent No. 1 in his affidavit has enclosed the copy of the order dated 25.08.2017 passed in Misc. Case No. 24/2017, from which it is apparent that the said application was also dismissed for non-prosecution on 25.08.2017. The order reads as under:- "None appears on call for the applicant. However, Mr. K. Sarma, the learned counsel appearing for the respondent is present. The applicant remained unrepresented when the matter was last called on 26.04.2017 and 21.07.2017. Accordingly, this application which is for setting aside the order dated 03.02.2017, by which CRP 299/2015 was dismissed for not taking of the steps is also dismissed for non-prosecution." 26. Thereafter, before the executing Court, the petitioner filed an application under section 151 CPC, which was registered as Petition No. 974 (copy of which is not enclosed), which was registered as Misc. (J) Case No. 81/2017. It will be profitable to extract a portion of the order, wherein the points urged in the applicant have been reflected:- "Both the sides are represented. By this order, petition No. 974 tiled by the petitioner under section 151 CPC is taken up for disposal. The petitioner has stated inter alia that the order dated 5.3.2014 in T.Ex. No. 4/13 was passed after receiving report of resistance from Nazir but not after receiving any application from the Respondent No. 1/Decree holder. That said order contains a decision that the petitioner has failed to prove his right, title and interest over the suit land and therefore, the decree is enforceable against him. The said order involves abuse of the following procedure of law: 1. That the said order dated 5.3.2014 was passed without following the law laid down in Order 21, Rule 97, 98 and 101 to 106. 2. That the Court issued notice upon the petitioner suo moto upon the report of Civil Nazir. 3. That petition No. 6730/13 filed by the petitioner ought to have been returned by the Court. But, instead same was tried and determined judicially by the Court without following procedure of law. 4. That the order dated 5.3.14 is against the law declared by the Hon'ble Apex Court in Brahmadeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694 . On the basis of the above averments, the petitioner has prayed for striking out the order dated 5.3.2014 in T. Ex. 4/13." 27. 4. That the order dated 5.3.14 is against the law declared by the Hon'ble Apex Court in Brahmadeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694 . On the basis of the above averments, the petitioner has prayed for striking out the order dated 5.3.2014 in T. Ex. 4/13." 27. A perusal of the above would go to show that once again it was sought to be urged that the order dated 05.03.2014 is bad in law. The petition having been dismissed, the present application is filed. As noted earlier, order dated 05.03.2014 had attained finality long back and order dated 12.09.2017 in Misc. (J) Case No. 81/2017 is reiteration of the said order dated 05.03.2014. Order dated 12.09.2017 passed in Title Execution Case No. 81/2017 is only a consequential order, whereby fresh writ was issued for execution of the decree. 28. In view of the above discussions, no case is made out for interference and accordingly, the petition is dismissed. No cost.