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2019 DIGILAW 2325 (ALL)

Khasgi Devi Ahilyabai Holkar Charities Trust Indore v. Krishna Kumar Dwivedi

2019-10-14

SURYA PRAKASH KESARWANI

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JUDGMENT : Surya Prakash Kesarwani, J. Heard Sri Atul Dayal learned Senior Advocate, assisted by Sri Pratik J. Nagar, learned counsel for the decree-holder/plaintiff-landlord/petitioner and Sri A. N. Bhargava, learned counsel for the respondent no.2/3rd person. 2. Briefly stated facts of the present case are that undisputedly the plaintiff-decree holder "Khasgi Devi Ahilyabai Holkar Charities Trust Indore is the owner and landlord of the disputed house No. D-18/16 Brahampuri, Ward Dashaswamedh, Varanasi. In a portion of the said house the respondent No.1 - Krishna Kumar Dwivedi was a tenant. In another portion of the said house the respondent no.2/3rd person was also a tenant. The plaintiff filed SCC Suit No.39 of 2009 (Khasgi Devi Ahilyabai Holkar Charities Trust Indore through Raja Singh, Manager Vs. Krishna Kumar Dwivedi) for eviction and recovery of arrears of agreed rent of Rs.350/- per month. The plaintiff also filed another SCC Suit No.04 of 2011 (Khasgi Devi Ahilyabai Holkar Charities Trust Indore through Manager Vs. Virendra Mishra) for eviction of the tenant Virendra Misra (the respondent no.2 herein) who was occupying another portion as tenant. The aforesaid S.C.C. Suit No.04 of 2011 filed by the plaintiff against the respondent no.2 is stated to be still pending. The aforesaid SCC Suit No.39 of 2009 filed by the plaintiff-decree holder/petitioner for eviction of the tenant - Krishna Kumar Dewidi, was decreed by judgment dated 24.07.2012, passed by the Additional Judge Small Cause Court, Varanasi. Subsequently, the plaintiff-decree holder/petitioner filed Execution Case No.3 of 2017 for Execution of the decree dated 24.07.2012 passed in the aforesaid SCC Suit No.39 of 2009 (Khasgi Devi Ahilyabai Holkar Charities Trust Indore Vs. Krishna Kumar Dwivedi). 3. In the aforesaid Execution Case No.3 of 2017, the respondent no.2/3rd person filed an application under Section 47 C.P.C. He filed another application under Order XXI Rule 97 C.P.C. being Misc. Case No.104 of 2019 (Virendra Mishra Vs. Khasgi Devi Ahilyabai Holkar Charities Trust) which was rejected by the Judge Small Cause Court, Varanasi, on the ground that it is not maintainable. Aggrieved with this order, the respondent no.2/3rd person filed SCC Revision No.17 of 2019 which has been admitted by the impugned order dated 19.08.2019, passed by the District Judge, Varanasi, and an interim order has also been passed. Aggrieved with this order, the respondent no.2/3rd person filed SCC Revision No.17 of 2019 which has been admitted by the impugned order dated 19.08.2019, passed by the District Judge, Varanasi, and an interim order has also been passed. Aggrieved with the order of the District Judge, Varanasi, dated 19.08.2019 in the aforesaid SCC Revision No.17 of 2019, the plaintiff-decree holder/petitioner has filed the present petition under Article 227 of the Constitution of India. 4. Learned counsel for the plaintiff-decree holder/petitioner submits that application under Order XXI Rule 97 C.P.C. can be filed only by a decree holder. By order dated 20.07.2019, in Misc. Case No.104 of 2019, the Judge Small Cause Court, Varanasi, rejected the application 4 Ga filed by the respondent no.2, as not maintainable. The Judge Small Cause Court has not adjudicated any point and, therefore, the order dated 20.07.2019 is not a decree within the meaning of Order XXI Rule 103 C.P.C. Therefore, Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "the Act 1887") filed by the respondent no.2/3rd person was not maintainable in view of the law laid down by Hon'ble Supreme Court in Sameer Singh and another Vs. Abdul Rab and others, (2015) 1 SCC 379 . He also relied upon a judgment of this Court in Balvir Saran Goyal V. Kishan Kumar and 2 others, (2019) 2 ARC 225. He submits that revision itself was not maintainable. The District Judge, Varanasi had no jurisdiction to entertain the revision. Therefore, the impugned order dated 19.08.2019, passed by the District Judge, Varanasi admitting the revision and granting interim relief, being without jurisdiction, deserves to be set aside. 5. Sri A. N. Bhargava, learned counsel for the respondent no.2/3rd person submits that Ramesh Upadhyay is not the Manager of the trust and, therefore, this petition is not maintainable. 6. No other submissions have been made by learned counsel for the respondent no.2/3rd person. This Court specifically requested the learned counsel for the respondent no.2/3rd person to reply to the submissions of learned counsel for the plaintiff-decree holder/petitioner, but learned counsel for the respondent no.2/3rd person declined to make any submissions. 7. I have carefully considered the submissions of learned counsels for the parties. 8. This Court specifically requested the learned counsel for the respondent no.2/3rd person to reply to the submissions of learned counsel for the plaintiff-decree holder/petitioner, but learned counsel for the respondent no.2/3rd person declined to make any submissions. 7. I have carefully considered the submissions of learned counsels for the parties. 8. The story set up by the respondent no.2/3rd person for filing application under Section 47 and another application under Order XXI Rule 97 C.P.C. is that the decree of eviction dated 24.07.2012 was passed by the Additional Judge Small Cause Court, Varanasi, in SCC Suit No.39 of 2009 for eviction of the tenant Krishna Kumar Dewidi and for recovery of arrears of rent @ Rs.350/- per month. Thereafter, the aforesaid tenant Krishna Kumar Dewidi, delivered possession and he (respondent no.2 herein) was inducted as tenant at a monthly rent of Rs.100/- and, therefore, the decree passed in the aforesaid SCC Suit No.39 of 2009 can not be executed against him i.e. the respondent no.2 herein being a lawful tenant. 9. It is highly improbable that the tenant-respondent no.2 against whom a separate suit for eviction being SCC Suit No.4 of 2011 is pending, would have been inducted by the landlord as tenant of another portion to be vacated by the tenant - Krishna Kumar Dewidi, pursuant to the judgment and decree dated 24.07.2012 in SCC Suit No.39 of 2009, at a lesser rate of rent of Rs.100/- per month. The petitioner decree-holder was perusing the Execution Case No.3 of 2017 for execution of the judgment and decree dated 24.07.2012 filed by it which is still pending and in which the Respondent No.2/third person has filed applications under Order 21 Rule 97 CPC which was rejected by order dated 20.07.2019 passed by the Judge Small Cause Court. 10. Order XXI Rule 97 C.P.C. provides that where the decree holder 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. Thus, application under Order XXI Rule 97 may be filed by a decree holder in the event the execution of decree is resisted or obstructed by any person in obtaining possession of the property. Thus, application under Order XXI Rule 97 may be filed by a decree holder in the event the execution of decree is resisted or obstructed by any person in obtaining possession of the property. The 3rd person is not entitled to file an application under Order XXI Rule 97 C.P.C. In the present case the application under Order XXI Rule 97 C.P.C. was filed by the respondent no.2/3rd person and not by the decree-holder. Therefore, the District Judge, Varanasi, has committed a gross error of law to pass the impugned order observing that a 3rd party may file an application under Order XXI Rule 97 C.P.C. 11. Order XXI Rule 98 C.P.C. provides for determination of the questions application referred in Rule 101. Order XXI Rule 103 provides that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made therein shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree. Thus, adjudication of lis arising pursuant to filing of application by person being dispossess of immovable property, is essential for treating order of the executing court as a decree. Where the Executing Court, without going into merits, declines to adjudicate upon lis between parties under Order XXI Rule 101 read with Rule 97 and Rule 98 C.P.C on the ground of non maintainability of the application, such order passed by the executing court can not be deemed to be a decree under Order XXI Rule 103 C.P.C. 12. In Sameer Singh (supra) Hon'ble Supreme Court while considering the provisions of Order XXI Rule 97, 98, 100, 101 and 103 C.P.C. clearly stipulates that "when an application is adjudicated upon under Rule 98 or Rule 100, the said order shall have the same force as if it were the decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order can not earn the status of a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order can not earn the status of a decree. If an executing Court only exercise its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different." Hon'ble Supreme Court further held that "the High Court has fallen into error by opining that the decision rendered by the executing court is a decree and, therefore, an appeal should have been filed, and resultantly allowed the appeal and set aside the impugned order". 13. Since the order dated 20.07.2019 is not a decree within the meaning of Order XXI Rule 103 of C.P.C. and also since the application was filed by the respondent no.2/3rd party under Order XXI Rule 97, therefore, the order dated 20.07.2019, passed in Misc. Case No.104 of 2019, passed by the Executing court i.e. the Judge Small Cause Court, Varanasi had neither suffered from any error of law nor a revision would lie against it. Therefore, the Revision under Section 25 of the Act, 1887 was not maintainable. 14. The impugned order dated 09.09.2019 admitting the SCC Revision No.17 of 2019 is patently illegal. Therefore, it is set aside. 15. The petition is allowed.