Vs. Raj Kumar & Ors  INSC 279 (16 February 1996)
O R D
the respondents have been served, the second respondent has filed a photocopy
of the Power of Attorney on behalf of respondent Nos.1 and 3 to 6 but when the
Registry directed him to produce the original he failed to do the same. He is
also not present in the Court. One Shyam Lal, son of Prabhu Lal Kayasth had
laid the suit for specific performance; the Civil Judge dismissed the suit but
on appeal No.16/1973 by judgment and decree dated October 18, 1973, the suit was decreed as under:
is accepted with cost.
and decree under appeal is set aside and suit for specific performance of
contract is decreed with costs that defendants as per contract Ex.1 at 1.9.66
shall execute sale deed within 3 months and plaintiff shall pay the balance sum
to the defendant in the said period, otherwise plaintiff shall be entitled to
get the sale deed executed of the dispute property as per the law depositing
the balance amount in the court within two months." In the suit there was
prayer for specific performance with possession of the property in prayer 1
be decreed that defendants should performs their part of the contract regarding
the land and for this purpose get the sale deed registered after receiving a
sum of Rs.1100/- and handover the possession of the disputed house to the
plaintiff." Under Section 22(1) of the Specific Relief Act, 1963,
notwithstanding anything contained in Civil Procedure Code, the plaintiff suing
for the specific performance of a contract for transfer of immovable property
may, in an appropriate case, ask for possession or partition with specific
possession of the property, in addition to such specific performance.
Sub-section (2) puts fetters on the power of the court to grant such relief
without there being the relief specifically claimed in the plaint. As seen in
the decree, though prayer for possession was claimed, no decree for possession
was granted which had become final.
would appear that in execution of the decree the legal representatives of the
decree-holder sought to dispossess the appellant from the property said to be
in his possession. Apprehending his dispossession, the appellant had filed
another suit for injunction based on possessory title obtained an adinterim
injunction on July 2,
1991 as under:
for the applicant present.
Presiding Officer has been transferred. Notice be issued to non-applicant on
filing the process fee. File be Put up on After writing this, non-applicant
No.2 Subhash Saxena appeared and informed the court that he has not received
copy of stay application.
of stay application is given to him today. Rest of the applicants Nos. 1, 3, 4,
5 and 6 be summoned through notices on filing the Registry fees and other
expenses. Meanwhile non-applicant No.2 would not dispossessed applicant Babu Lal
from the disputed house (except the decree of the court). Put file on
17.8.91." We are informed that the injunction is still subsisting.
execution application filed under Order 21 Rule 32 of the CPC the appellant
filed an objection on the ground that he could not be dispossessed. It is not
in dispute that the appellant was not a party to the decree for specific
performance. His objection was over-ruled by the executing Court holding that
since he had not been dispossessed, application under Order 21 Rule 97 is not
maintainable. That view was affirmed by the High Court in the impugned order
dated May 9, 1995 in CRP No.656/94 by the High Court
of Rajasthan at Jaipur Bench. Thus, this appeal by special leave.
controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain
& Anr. [(1995) 1 SCC 6] considered the controversy and had held that even
an application filed under Order 21 Rule 35(3) or one filed under Section 47
would be treated as an application under Order 21 Rule 97 and an adjudication
is required to be conducted under Rule 98. Dispossession of the applicant from
the property in execution is not a condition for declining to entertain the
application. The reasons are obvious. The specific provisions contained in
Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding
recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus:
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.
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 Order 21,
Rules 101 and 102 of CPC".
would, therefore, be clear that an adjudication is required to be conducted
under Order 21, Rule 98 before removal of the obstruction caused by the object
or the appellant and a finding is required to be recorded in that behalf. The
order is treated as a decree under Order 21, Rule 103 and it shall be subject
to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment
to CPC that may be pending on the date of the commencement of the amended
provisions of CPC was secured. Thereafter, under the amended Code, right of
suit under Order 21, Rule 63 of old Code has been taken away. The determination
of the question of the right, title or interest of the objector in the
immovable property under execution needs to be adjudicated under Order 21, Rule
98 which is an order and is a decree under Order 21, Rule 103 for the purpose
of appeal subject to the same conditions as to an appeal or otherwise as if it
were a decree. Thus, the procedure prescribed is a complete code in itself.
Therefore, the executing Court is required to determine the question, when the
appellants had objected to the execution of the decree as against the
appellants who were not parties to the decree for specific performance.
appeal is accordingly allowed. The executing Court is directed to enquire into
the matter and record a finding after giving opportunity to the parties. No
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