P. Janardhana Rao Vs.
Kannan & Others  Insc 632 (12 October 2004)
Ashok Bhan S.H. Kapadia
Being aggrieved by the judgment and order dated 12.11.1997 passed by the
High Court of Madras in C.R.P.
No.2960 of 1995, dismissing Miscellaneous Petition No.600 of 1991 made by
the decree holder under Order 21 Rule 97 of Code of Civil Procedure, this civil
appeal has been preferred by grant of special leave.
For the sake of convenience, the parties herein are referred to as they are
arrayed in the Executing Court.
The facts giving rise to this civil appeal are as follows: P. Janardhana
Rao, the plaintiff filed an Ejectment Suit No.44 of 1989 in the Court of Small
Causes, Madras for getting possession from Chelladurai and Bhagyalakshmi. The
suit was decreed on 31.7.1990. Pursuant to the said decree, the plaintiff filed
Execution Petition no.175 of 1991 for obtaining delivery of possession. Three
obstructionists Kannan, Krishnan and Raji resisted the plaintiffdecree holder
from taking possession. In view of the said obstruction, the decree holder
preferred miscellaneous petition No.600 of 1991 under order 21 rule 97 CPC for
removal of the obstruction put up by the aforestated three obstructionists
In the said miscellaneous petition no.600/1991, the executing Court recorded
the evidence. PW1 deposed that in 1982 he purchased the suit property
admeasuring 2300 sq. ft.
situate in Friends Avenue, Razack Garden, Arumbakkam, Madras-106 vide Ex.P1,
from Srinivasa Iyengar; that in 1982 when he bought the suit property, the
three obstructionists were not there; that he had engaged two labourers,
Chelladurai and Bhagyalakshmi, to construct his house; that on completion,
Chelladurai and Bhagyalakshmi refused to vacate and, therefore, PW1 instituted
the ejectment suit no.44 of 1989 in the Court of Small Causes, Madras. The suit
Appeal therefrom was dismissed. PW1 in his deposition further stated that
the aforestated three obstructionists Kannan, Krishnan and Raji were put up by
the judgment-debtors. In cross-examination, PW1 stated that he knew Kannan,
Krishnan and Raji since 1980. He further stated that there were three houses in
the suit property since 1980.
RW1, Thiru Krishnan, one of the obstructionists; deposed in his evidence
that they were residing in the suit property from 1965; that the three houses
belonged to them; that he resided in Vathalagundu Arumugam Nagar abutting
Friends Avenue; that since 1965, he has been residing in Vathalagundu Arumugam
Nagar; that he did not possess electricity bills of 1965; that he had not
encroached upon the suit property; that he had electricity bills of 1993; that
he had constructed a house on the suit property in 1965; and that he had paid
property taxes only after 1989.
On the above evidence, the executing Court allowed the miscellaneous
petition no.600 of 1991, holding that there was no evidence of possession of
the obstructionists from 1965 as claimed.
Being aggrieved, the obstructionists came before the High Court by way of
revision under section 115 CPC. By the impugned judgment, the High Court
allowed the revision instituted by the obstructionists and dismissed the
application of the decree-holder under order 21 rule 97, holding, that the
three obstructionists were in occupation since 1980 i.e. prior to filing of the
Ejectment Suit No.44/1989. The High Court further held that there was no
evidence to show that the three obstructionists were inducted by the
judgment-debtors. In this connection, the High Court relied upon the statement
of PW1 that he knew the obstructionists since 1980 and that they were residing
in the houses in the suit property from 1980. Consequently, the revision filed
by the three obstructionists was allowed. Hence, this civil appeal.
Order 21 Rule 97 CPC is the provision for removal of the person bound by the
decree who does not vacate. It takes into account a situation where resistance
to possession is offered by the judgment-debtor or any other person bound by
the decree which will include the claim of a person who claims to be in
possession in his own right and independently of the judgment- debtor but whose
claim ex-facie is unsustainable. Where, however, resistance is offered or where
obstruction proceeds from the claimant claiming to be in possession in his own
right and whose claim cannot be rejected on the ground of want of good faith,
without investigation, the decree-holder must proceed under order 21 rule 97.
[See: Ragho Prasad v. Pratap Narain Agarwal reported in 1969 All. L.J. 929].
In the case of Noorduddin v. Dr. K. L. Anand reported in [(1995) 1 SCC 242],
it has been held as follows: "8. Thus, the scheme of the Code clearly
adumbrates that when an application has been made 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. The determination shall
be conclusive between the parties as if it was a decree subject to right of
appeal and not a matter to be agitated by a separate suit. In other words, no
other proceedings were allowed to be taken. It has to be remembered that
preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order
21, Rule 103 of 1908 Code was available which has been now taken away. By
necessary implication, the legislature relegated the parties to an adjudication
of right, title or interest in the immovable property under execution and
finality has been accorded to it. Thus, the scheme of the Code appears to be to
put an end to the protraction of the execution and to shorten the litigation
between the parties or persons claiming right, title and interest in the
immovable property in execution.
9. Adjudication before execution is an efficacious remedy to prevent fraud,
oppression, abuse of the process of the court or miscarriage of justice. The
object of law is to mete out justice.
Right to the right, title or interest of a party in the immovable property
is a substantive right. But the right to an adjudication of the dispute in that
behalf is a procedural right to which no one has a vested right. The faith of
the people in the efficacy of law is the saviour and succour for the sustenance
of the rule of law. Any weakening like in the judicial process would rip apart
the edifice of justice and create a feeling of disillusionment in the minds of
the people of the very law and courts. The rules of procedure have been devised
as a channel or a means to render substantive or at best substantial justice
which is the highest interest of man and almameter (sic) for the mankind. It is
a foundation for orderly human relations. Equally the judicial process should never
become an instrument of oppression or abuse or a means in the process of the
court to subvert justice. The court has, therefore, to wisely evolve its
process to aid expeditious adjudication and would preserve the possession of
the property in the interregnum based on factual situation. Adjudication under
Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a
finality of the adjudication of the right, title or interest in the immovable
property under execution.
10. The question is whether the executing court was right in dismissing the
application on the ground that the dispute was adjudicated in RFA No.305 of
1986 or as held by the High Court that the dispute was decided in the writ
proceedings referred to earlier. The execution court is enjoined to adjudicate
the claim or the objection or the claim to resistance. As seen, Rule 97 enables
such a person to make an application which must be independent of the
judgment-debtor or a person having derivate right from the judgment-debtor.
The applicant in his own right must be in possession of the property."
Applying the above tests, we may now examine the question whether the
obstructionists were in possession of the property in their own right, as
claimed. In this regard, we may now examine the evidence on record.
PW1, in his examination-in-chief, deposed that the three obstructionists
were set up by the said Chelladurai and Bhagyalakshmi. It was the case of the
obstructionists that they were in possession of the suit property since 1965.
However, no evidence was produced. On the contrary, RW1 stated in his evidence
that he started paying property tax from 1989 and that prior thereto he had not
paid the property tax. As stated above, PW1 instituted the ejectment suit in
the Small Causes Court in 1989. Therefore, the evidence has been created by the
obstructionists only from 1989. No electricity bills from 1965 onwards have
been produced. No ration card has been produced. No proof of residence from
1965 has been produced.
The High Court has relied upon the statement of PW1 stating that he knew
three obstructionists since 1980 and that three houses existed in the suit
property from 1980. In our view, the trial Court was right in examining the
entire evidence on record and coming to the conclusion that there was no
evidence from the side of the obstructionists to show that they were in
possession of the suit premises prior to the filing of ejectment suit no.44 of
1989. As stated above, on the contrary, the property tax receipts show that the
obstructionists have entered into occupation from 1989. The High Court has
failed to appreciate the entire evidence on record. Merely because PW1 knew the
three obstructionists from 1980 would not be sufficient to conclude that three
obstructionists came to reside in the suit property from 1965, as alleged.
There is no evidence of residence from the side of the obstructionists between
1965 and 1989. In the circumstances, the High Court erred in dismissing the
decree holder's application under order 21 rule 97 CPC.
For the reasons stated above, the appeal is allowed. The impugned judgment
and order of the High Court is set aside and that of the execution Court is
restored. The said miscellaneous petition no.600 of 1991 in execution petition
no.175 of 1991 is made absolute. However, in the facts and circumstances of the
case, there shall be no order as to costs.