Brahmdeo
Choudhary Vs. Rishikesh Prasad Jaiswal & ANSC [1997] INSC 60 (22 January 1997)
A.S.
ANAND, S.B. MAJHUDAR S.B. Majmudar,
J.
ACT:
HEAD NOTE:
In
this appeal by special leave the appellant has posed a short question or our
consideration. It runs as under:
"Whether
the appellant who claims to be a stranger, occupying decretal 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 XXI Rule 99 Code of Civil Procedure (`CPC'
for short)?" The High Court agreeing with the Executing Court has negatived the aforesaid request
of the appellant by holding that such stranger to the decree who has put
forward his obstruction in the execution proceedings has the only remedy under
Order XXI Rule 99, CPC after his obstruction is first removed and he is
dispossessed of the premises. This Court granted special leave to appeal to the
appellant under Article 136 of the Constitution of India and granted stay of
dispossession by its order dated 17th September 1996. Shri Sanyal, learned senior counsel for the appellant has
raised a serious grievance against the aforesaid view of the High Court.
For
resoling the aforesaid controversy between the appellant on the one hand and
respondent no.1 decree-holder on the other a few introductory facts deserve to
be noted at the outset.
Respondent
no.1 filed an Eviction Suit No. 54 of 1988 in relation to six and a half dhurs
of the suit land against respondent no.2 and his mother Bachani Devi. A decree
was passed in favour of respondent no.1 against the judgment- debtor respondent
no.2 in 1988 by the Court of Munsif II, Munger, Respondent no.1 filed execution
proceedings in 1990 against respondent no.2 judgment-debtor. These proceedings
were registered as Execution Case No. 25 of 1990. On 25th April 1991 respondent
no.1 decree-holder obtained warrant for delivery of possession from the Executing Court against respondent no.2. When the
bailiff went on spot to execute the warrant on 28th April 1991 he was resisted
by the present appellant as well as his brothers Sitaram Choudhary and Jago Choudhary
along with 20-25 persons and because of the resistance offered by them and on
account of abuses ad throwing of bricks and stones indulged into by them it was
impossible to execute the warrant for possession. Under these circumstances the
decree-holder by his application dated 6th May 1991 requested that help of magistrate
and armed force be made available at his cost for execution of the decree. It
appears that the said application remained lingering on the file of Executing Court for number of years and ultimately
the Executing Court directed execution of the warrant
for possession by affording help of police force to the decree-holder. It was
at that stage that the present appellant filed a written application on 22nd January 1996 before the Executing Court to stay operation of the said
warrant and to decide his objections. By a rejoinder dated 1st February 1996 respondent no.1 decree-holder
raised the question of maintainability of such an application before handing
over actual possession to the decree-holder. The Executing Court without adjucating upon the objections of the appellant on
merits and without deciding whether the obstruction or resistance offered by
him was legally justified or not dismissed the appellant's application dated 22nd January 1996 by order dated 15th February 1996. The Executing Court took the view that the remedy of the appellant was to move
an application under Order XXI Rule 99, CPC only after he was dispossessed and
as that stage was not still reached the request of the appellant to adjudicate
his claim could not be entertained. It is this order of the Executing Court which has come to be confirmed by
the High Court of Judicature at Patna by the impugned order dated 17th May 1996.
In the
background of the aforesaid factual matrix it is necessary to have a look at
the relevant statutory provisions governing the controversy between the
parties. As respondent no.1 decree-holder seeks to execute his decree for
possession of immovable property against judgment-debtor respondent no.2 he has
rightly invoked provisions of Order XXI, CPC by putting the decree for
possession of immovable property into execution. His application for issuance
of a fresh warrant for possession with the police aid as moved by him on 6th May 1991 purports to invoke the provision of
Order XXI Rule 35, CPC which reads as under:
"35.
Decree for immovable property.- (1) Where a decree is for the delivery of any
immovable property, possession thereof shall be delivered to the party to whom
it has been adjudged, or to such person as he may appoint to receive delivery
on his behalf, and, if necessary, by removing any person bound by the decree
who refuses to vacate the property.
(2)
Where a decree is for the joint possession of immovable property, such
possession shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum, or other
customary mode, at some convenient place, the substance of the decree.
(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." A mere
look at the aforesaid provision shows that warrant for possession can be
straightaway sought against persons occupying immovable property which is
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. We are concerned with the situation in which the appellant resisted the
execution proceedings on the ground that he was a stranger to the decree and
claimed an independent interest in the suit immovable property possession of
which was decreed in favour of respondent no.1 decree-holder. The Nazir in his
report dated 28th April
1991 has noted that
the warrant for possession could not be executed on spot on account of the
resistance and obstruction offered by the appellant, amongst others. Once that report
was received by the Executing
Court respondent no.1
decree-holder naturally became alive to the fact of such resistance on spot by
the appellant, amongst others. Thereafter when he moved the application on 6th
May 1991 for issuance of fresh warrant for possession with the help of police
force though the application purported to be under Order XXI Rule 35 it would
strictly not fall within that provision as the decree-holder wanted to bypass
the obstruction and resistance offered by a stranger to the decree, namely the
appellant who was not claiming any right, title or interest through the
judgment-debtor. Whether his claim was right or wrong on merits is a different
matter.
But
once such resistance was offered by him the proper procedure which was required
to be followed by respondent no.1 decree-holder was the one contemplated by
Order XXI Rule 97, CPC. The said provision reads as under:
"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." On the undisputed facts on record it has, therefore, to be
held that because of the resistance or obstruction offered by the appellant,
amongst others, on 28th
April 1991 the
application moved by the respondent decree-holder on 6th May 1991 was necessarily to be one falling
within the scope and ambit of Order XXI Rule 97. It is pertinent to note that
the resistance and/or obstruction accordance with the subsequent provisions
contained in the said Order. We may in this connection also refer to the
Schedule to the CPC, Appendix E which gives various forms for summons to be
issued to parties in execution proceedings especially form no.40 which deals
with `Summons to appear and answer charge of obstructing execution of decree
(0.21. R.97)'. The said form reads as under:
No. 40
Summons To Appear And Answer Charge Of Obstructing Execution Of Decree (0.21.
R.97) (Title) Whereas, the decree-holder in the above suit, has complained to
this Court that you have resisted (or obstructed) the officer charged with the
execution of the warrant for possession.:
You
are hereby summoned to appear in this Court on the ...... day of .... 19......,
at A.M., to answer the said complaint.
Given
under my hand and the seal of the Court, this ........ day of 19 .......
Judge."
It is, therefore, clear that in an application under Order XXI Rule 97 moved by
a decree-holder who complains about the resistance or obstruction offered by
any person to the decree-holder in his attempt at obtaining possession of
property and who wants such obstruction or resistance to be removed which
otherwise is an impediment in his way, a lis arises between the decree-holder
applicant under Order XXI Rule 97 on the one hand and such obstructionist or
resisting party on the other, to whom summons has been issued by the Court as
per Form No.40. When such a lis arises, it has to be adjudicated upon as
enjoined by Order XXI Rule 97 sub- rule (2). The procedure for adjudicating
such a lis has to be called out from the remaining succeeding Rules of Order
XXI. This directly takes us to the consideration of Order XXI Rule 101 which
reads as under:
"101.
Question to be determined.- All questions (including questions relating to
right, title or interest in the property), arising between the parties to a
proceeding on an application under Rule 97 or Rule 99 or their representatives,
and relevant to the adjudication of the application, shall be determined by the
Court dealing with the application and not be a separate suit and for this
purpose, the Court shall, notwithstanding anything to the contrary contained in
any other law for the time being in force, be deemed to have jurisdiction to
decide such questions." Now it is obvious that such questions relating to
the right, title and interest in the property arising between the parties to
any proceedings under Order XXI Rule 97 or Rule 99 have to be adjudicated upon
by following an identical gamut of procedure by the Executing Court. The said gamut of procedure is
laid down by Order XXI Rule 98 which reads as under :
"98.
Orders after adjudication. - (1) Upon the determination of the questions
referred to in Rule 101, the Court shall, in accordance with such determination
and subject to the provisions of sub-rule (2),- (a) make an order allowing the appli
cation and directing that the applicant be put into the possession of the
property or dismissing the application; or (b) pass such other order as, in the
circums tances of the case, it may deem fit.
(2)
Where, upon such determination, the Court is satisfied that the resistance or
obstruction was occasioned without any just cause by the judgment-debtor or by
some other person at his instigation or on his behalf, or by any transferee,
where such transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the
judgment- debtor, or any person acting at his instigation or on his behalf, to
be detained in the civil prison for a term which may extend to thirty
days." It is not time for us to consider Order XXI Rule 99 which reads as
under:
"99.
Dispossession by decree-holder or purchaser.- (1) Where any person other than
the judgment-debtor is dispossessed of immovable property by the holder of a
decree for the possession of such property or, where such property has been
sold in execution of a decree, by the purchaser thereof, he maya make an
application to the Court complaining of such dispossession.
(2)
Where any such application is made, the Court shall proceed to adjudicate upon
the application in accordance with the provisions herein contained." A
conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the following
picture:
(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 XXI Rule
35, then the decree-holder has to move an application under Order XXI 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 XXI Rule 97 sub-rule
(2) read with Order XXI Rule 98. It is obvious that after such adjudication if
it is found that the resistance or obstruction was occasioned without 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
XXI 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 XXI 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 XXI 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
XXI Rule 98 sub-rule (1) CPC the Executing Court can direct the stranger applicant
under Order XXI Rule 99 to be put in possession of the property of if his
application is found to be substanceless it has to be dismissed. Such an order
passed by the Executing Court disposing of the application one way or the other
under Order XXI Rule 98 sub-rule (1) would be deemed to be a decree as laid
down by Order XXI Rule 103 and would be appealable before appropriate appellate
forum. But no separate suit would lie against such orders as clearly enjoined
by Order XXI Rule 101.
In
short the aforesaid statutory provisions of Order XXI lay down a complete code
for resolving all disputes pertaining to execution of decree for possession
obtained by a decree-holder and whose attempts at executing the said decree
meet with rough weather. Once resistance is offered by a purported stranger to
the decree and which comes to be noted by the Executing Court as well as by the
decree-holder the remedy available to the decree-holder against such an
obstructionist in only under Order XXI Rule 97 sub-rule (1) and he cannot
bypass such obstruction and insist on re- issuance of warrant for possession
under Order XXI Rule 35 with the help of police force, as that course would
amount to bypassing and circumventing the procedure laid down under Order XXI
Rule 97 in connection with removal of obstruction of purported strangers to the
decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how
the Executing Court can tell such obstructionist that
he must first lose possession and then only his remedy is to move an
application under Order XXI Rule 99, CPC and pray for restoration of
possession. The High Court by the impugned order and judgment has taken the
view that the only remedy available to a stranger to the decree who claims any
independent right, title or interest in the decretal property is to go by Order
XXI Rule 99. This view of the High Court on the aforesaid statutory scheme is
clearly unsustainable. It is easy to visualise that a stranger to the decree
who claims an independent right, title and interest in the decretal property
can offer his resistance before getting actually dispossessed. He can equally
agitate his grievance and claim for adjudication of his independent right,
title and interest in the decretal property even after losing possession as per
Order XXI Rule
99.
Order XXI Rule 97 deals with a stage which is prior to the actual execution of
the decree for possession wherein the grievance of the obstructionist can be
adjudicated upon before actual delivery of possession to the decree-holder.
While
Order XXI Rule 99 on the other hand deals with the subsequent stage in the
execution proceedings where a stranger claiming any right, title and interest
in the decretal property might have got actually dispossessed and claims
restoration of possession on adjudication of his independent right, title and
interest dehors the interest of the judgment-debtor. Both these types of
enquiries in connection with the right, title and interest of a stranger to the
decree are clearly contemplated by the aforesaid scheme of Order XXI and it is
not as if that such a stranger to the decree can come in the picture only at
the final stage after losing the possession and not before it if he is vigilant
enough to raise his objection and obstruction before the warrant for possession
gets actually executed against him. With respect the High Court has totally
ignored the scheme of Order XXI Rule 97 in this connection by taking the view
that only remedy of such stranger to the decree lies under Order XXI Rule 99
and he has no locus standi to get adjudication of his claim prior to the actual
delivery of possession to the decree-holder in the execution proceedings. The
view taken by the High Court in this connection also results in patent breach
of principles of natural justice as the obstructionist, who alleges to have any
independent right, title and interest in the decretal property and who is
admittedly not a party to the decree even though making a grievance right in
time before the warrant for execution is actually executed, would be told off
the gates and his grievance would not be considered or heard or merits and he
would be thrown off lock, stock and barrel by use of police force by the
decree-holder. That would obviously result in irreparable injury to such
obstructionist whose grievance would go overboard without being considered on
merits and such obstructionist would be condemned totally unheard. Such an
order of the Executing
Court, therefore,
would fail also on the ground of non- compliance with basic principles of
natural justice. On the contrary the statutory scheme envisaged by Order XXI
Rule 97, CPC as discussed earlier clearly guards against such a pitfall and
provides a statutory remedy both to the decree- holder as well as to the
obstructionist to have their respective say in the matter and to get proper
adjudication before the Executing Court and it is that adjudication which
subject to the hierarchy of appeals would remain binding between the parties to
such proceedings and separate suit would be barred with a view to seeing that
multiplicity of proceedings and parallel proceedings are avoided and the gamut
laid down by Order XXI Rules 97 and 103 would remain a complete code and the
sole remedy for the concerned parties to have their grievances once and for all
finally resolved in execution proceedings themselves.
In
this connection we may also profitably refer to a judgment of a Bench of three
learned of this Court in the case of Bhanwar Lal v. Satyanarain and Another
(195) 1 SCC 6. In that case the Bench consisting of K. Ramaswamy, S.C. Agrawal,
and N. Venkatachala, JJ., Satyanarain had obstructed to
the delivery of possession of the suit immovable property which was sought to
be obtained in execution by the appellant decree-holder. After such an
obstruction was offered by Satyanarain the decree-holder moved an application
under Order XXI Rule 35 for police assistance to remove obstruction caused by Satyanarain.
The Executing Court directed the decree-holder to make
an application under Order XXI Rule 97. This Court took the view that the very
application under Order XXI Rule 35 sub- rule (3) for police assistance for
removal of obstruction caused by Satyanarain had to be treated to be an
application under Order XXI Rule 97 and such an application was maintainable
and could not be said to be beyond limitation.
In
this connection the following pertinent observations were made by this Court:
"The
crux of the question is whether the application filed on 25-5-1979 by the appellant, though purported to be under Order
21.
Rule
35(3) against Satyanarain, is convertible to one under Order 21, Rule 97. Order
21, Rule 35(3) provides that:
"35(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.' A 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.
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
21, Rule 97 provides thus:
`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.' The 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.
In
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." In view
of the aforesaid settled legal position, therefore, and in the light of the
statutory scheme discussed by us earlier it must be held that respondent no.1
decree-holder's application dated 6th May 1991 praying for issuance of warrant
for delivery of possession with the aid of armed force, was in substance for
removal of obstruction offered by the appellant and others under Order XXI Rule
97, CPC and had to be adjudicated upon as enjoined by Order XXI Rule 97
sub-rule (2) read with Order XXI Rule 101 and Order XXI Rule 98. In this
connection the Court had also to follow the procedure laid down by Order XXI
Rule 105 which enjoins the Executing Court
to which an application is made under any of the foregoing Rules of the Order
to fix a date of hearing of the application. As the Executing Court refused to adjudicate upon the
obstruction and the claim of the appellant who obstructed to the execution
proceedings it had clearly failed to exercise jurisdiction vested in it by law.
The High
Court in revision also committed the same error by taking the view that such an
application was not maintained.
It is
of course true as submitted by learned counsel for the decree-holder that in
paragraph 4 of the judgment under appeal the High Court has noted that there
was some discrepancy about the Khasra Number. But these are passing
observations. On the contrary in the subsequent paragraphs of the judgment the
High Court has clearly held that such an application by the objector was not
maintainable and his only remedy was to move an application under Order XXI
Rule 99 after handing over possession and consideration of objection to
delivery of possession by a stranger to the decree at any earlier stage was
premature. It must, therefore, be held that neither the Executing Court nor the High Court in revision had
considered the objection of the appellant against execution or merits.
Consequently the impugned judgment of the High court as well as the order of
the Executing Court in Civil Execution Case No. 25 of 1990 dated 15th February
1996 are quashed and set aside and proceedings are remanded to the Court of Munsif
II, Munger to re-decide the application of respondent no.1 decree- holder dated
6th May 1991 by treating it to be one under Order XXI Rule 97 for removal of
obstruction of the appellant and after hearing the decree-holder as well as the
appellant to adjudicate the claim of the appellant and to pass appropriate
orders under Order XXI Rule 97 sub-rule (2), CPC read with Order XXI Rule 98,
CPC as indicated in earlier part of this judgment.
Before
parting with this case we may mention one apprehension voiced by learned
counsel appearing for the decree-holder. He submitted that the Nazir has noted
in his report dated 28th April 1991 that when he went to execute the decree he
was resisted on spot by Brahmdeo Chaudhary, that is the present appellant, as
well as by Sitaram Chaudhary and Jago Chaudhary who are found to be brothers of
the appellant and some other persons and, therefore, these other persons also
would one by one come forward to further obstruct the execution proceedings
which would be indefinitely delayed. This submission though prima facie looking
attractive on a closer scrutiny does not remain well sustained. Even though the
Nazir's report mentions the obstructions offered by Sitaram Chaudhary, Jago Chaudhary,
Brahmdeo Chaudhary and others, only the appellant objected to the order passed
by the Executing Court on respondent no.1's application
dated 6th May 1991 for issuance of a fresh warrant for
delivery of possession with the aid of police force. Only he put forward his
written objections on 22nd
January 1996. Neither
of his brothers, namely, Sitaram Chaudhary or Jago Chaudhary nor anyone else
filed any objections to the said application for issuance of fresh warrant for
possession with the police aid. Therefore, it must be held that the only objectionist
to remain in the field claiming to be a stranger having any right, title and
interest in the suit property is the appellant and no one else. The others who
might have resisted on spot on 28th April 1991
must be treated to have given up their obstructions and resistance subsequently
and have gone out of picture. It must, therefore, be held that only the
appellant is the sole surviving obstructionist whose claim regarding the
alleged independent right, title and interest in the decretal property has to
be adjudicated upon by the Executing Court
under Order XXI Rule 97 sub-rule (2), CPC pursuant to the present order. The Executing Court shall not entertain objection or
obstruction from any other party or person. It is also necessary to direct the
Executing Court, to which these proceedings are being remanded, to adjudicate
upon the claim of the appellant to the decretal property as per the provisions
of Order XXI Rule 97 sub-rule (2), CPC read with Order XXI Rule 98 within a
period of three months from the receipt of the writ of the order at its end as
the decree is of 1988 and the execution proceedings now would be pending for
about nine years.
The
appeal is accordingly allowed. There will be no order as to costs in the facts
and circumstances of the case.
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