Lal Vs. Satyanarain & Anr  INSC 506 (4 October 1994)
K. Ramaswamy, K. Agrawal, S.C. (J) Venkatachala N. (J)
1995 AIR 358 1995 SCC (1) 6 JT 1994 (6) 626 1994 SCALE (4)597
appellant had obtained a decree in Second Appeal No. 175/71 from the High Court
of Rajasthan on 21-3-1979 of ejectment of Ram Kishan, mesne
profits till date of possession and also arrears of rent. That decree had
become final. Thereafter, the appellant filed an execution application under
Order 21, Rule 35(3) of the Code of Civil Procedure, for short the CPC, on 24-5-1979. Thereafter, when one Satyanarain, the first
respondent in this appeal had obstructed delivery of the possession, on the
next day, namely, 25-5-1979, he made an application under Order
21, Rule 35(3) for police assistance to remove the obstruction caused by Satyanarain.
The Court directed the appellant to make an application under Order 21, Rule 97
8 pursuant to which the appellant made second application on 18-7-1979 under Order 21, Rule 97 CPC for removal of
obstruction caused by Satyanarain. The District Munsif, Executing Court, on
12-1-t981, dismissed that application as being barred by limitation under
Article 129 of the Schedule to the Indian Limitation Act, 1963. On the even
day, he filed a third application under Order 21, Rule 97 CPC which was
dismissed on 20-2-1982 as being barred by res judicata.
appeal filed by the appellant, the Civil Judge, Bikaner, by his order dated 19-5-1983, directed removal of the
obstruction holding that the third application was not precluded to be filed by
the appellant. The High Court in Civil Revision No. 352 of 1983 filed by Satyanarain
in the impugned order dated 3-2-1987 set
aside the order of the appellate court and confirmed that of the executing
further review, the High Court confirmed its earlier order. Thus, this appeal
by special leave against both the orders.
crux of the question is whether the application filed on 25-5-1979 by the appellant, though purported to be under Order
2 1, Rule 35(3) against Satyanarain, is convertible to one under Order 2 1,
Rule 97. Order 2 1, Rule 35(3) provides that:
(3) Where possession of any building on enclosure is to be delivered and the
person in possession, being bound by the decree, does not afford free access,
the Court, through its officers, may, after giving reasonable warning and
facility to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break open any door or
do any other act necessary for putting the decree-holder in possession."
reading of Order 21, Rule 35(3) postulates that the person in possession of the
immovable property to be delivered under the decree must be per force bound by
the decree. Admittedly, Satyanarain was not a judgment-debtor and that
therefore, he is not bound by the decree unless he claims right, title or
interest through the judgment-debtor, Ram Kishan. The person resisting delivery
of possession must be bound by the decree for possession. In other words the
resistor must claim derivate title from the judgment- debtor. The court gets
power under Order 21, Rule 97 to remove such obstruction or resistance and
direct its officer to put the decree-holder in possession of the immovable
property after conducting enquiry under Rule 97.
Order 2 1, Rule 97 provides thus:
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.
Where any application is made under sub-rule (1), the Court shall proceed to
adjudicate upon the application in accordance with the provisions herein
procedure has been provided in Rules 98 to 103. We are not, at present, concerned
with the question relating to the procedure to be followed and question to be
determined under Order 21, Rules 98 to 102. A reading of order 21, Rule 97 CPC
clearly envisages that "any person" even including the
judgment-debtor irrespective whether he claims derivative title from the
judgment-debtor or set up his own right, title or interest dehors the
judgment-debtor and he resists execution of a decree, then the court in
addition to the power under Rule 35(3) has been empowered to conduct an enquiry
whether the obstruction by that person in obtaining possession of immovable
property was legal or not. The decree-holder gets a right under Rule 97 to make
an application against third parties to have his obstruction removed and an
enquiry thereon could be done. Each occasion of obstruction or resistance
furnishes a cause of action to the decree-holder to make an application for
removal of the obstruction or resistance by such person.
When the appellant had made the application on 25-5- 1979 against Satyanarain,
in law it must be only the application made under Order 21, Rule 97(1) of CPC.
The executing court, obviously, was in error in directing to make a fresh
application. It is the duty of the executing court to consider the averments in
the petition and consider the scope of the applicability of the relevant rule.
On technical ground the executing court dismissed the second application on
limitation and also the third application, on the ground of res judicata which
the High Court has in the revisions now upheld. The procedure is the handmaid
of substantive justice but in this case it has ruled the roost.
the above view we have taken, the High Court has committed grievous error of
jurisdiction and also patent illegality in treating the application filed by
the appellant as barred by limitation and the third one on res judicata. Once
the application, dated 25-5-1979 was made, the Court should have
treated it to be one filed under Order 21, Rule 97(1) CPC. The question of res judicata
for filing the second and third applications does not arise. Under these
circumstances the appellate court, though for different reasons was justified
in directing an enquiry to be conducted for removal of the obstruction or
resistance caused by Satyanarain under Order 21 Rules 35(3) and 97(2) and Order
21, Rules 101 and 102 of CPC.
appeal is accordingly allowed. The order of the High Court and that of the
executing court are set aside.
executing court is directed to conduct an enquiry for removal of the obstruction
for delivery of possession of the property covered by the decree and pass
appropriate orders according to law. The application filed by Lakshminarain is
rejected. If he has got any other right independent of the rights in the
proceedings under execution, it may be open to him to agitate the same
according to law. No costs.