Shreenath
& Anr Vs. Rajesh & Ors [1998] INSC 213 (13 April 1998)
K. Venkataswami,
A.P. Misra Misra, J.
ACT:
HEAD NOTE:
The
seekers of justice many a time has to take a loan circuitous routes, both on
account of hierarchy of Courts and the procedural law. Such persons are and can
be dragged till the last ladder of the said hierarchy for receiving justice but
even here he only breaths earness of receiving the fruits of that justice for
which he has been aspiring to receive. To reach this stage is in itself an
achievement and satisfaction as the, by then has passed through a long arduous
journey of the procedural law with may hurdles replica of mountain attain with
ridges and furrows. When he is ready to take the bite of that fruit, he has to
pass through the same terrain of the procedural law in the execution
proceedings the morose is writ large on his face.
What
looked inevitable to him to receive it at his hands distance is deluded back
into the horizon. The creation of hierarchy of Courts was for a reasonable
objective for confering greater satisfaction to the parties that errors, if
any, by any of the lower Courts under the scruitiny of a higher Court be
rectified and long procedural laws also with good intention to exclude and
filter out all unwanted who may be the cause of obstruction to such seekers in
his journey to justice. But this obviously is one of the causes of delay in
justice. Of course, under this pattern the party wrongfully gaining within
permissible limits also stretches and litigation an much as possible. Thus,
this has been the cause of anxiety and concern of various authorities,
Legislators and Courts. How to eliminate such a long consuming justice? We must
confess that we have still to go long way before true satisfaction in this
regard is received. Even after one reaches the stage of final decree, he has to
undergo a long distance by passing through the ordained procedure in the
execution proceedings before he receives the bowl of justice.
The
Courts within its limitations have been interpreting the procedural laws so as
to conclude all possible disputes pertaining to the decreetal property which is
within fold in an execution proceeding i.e., including what may be raised later
by way of another bout of litigations through a fresh suit. Similarly
legislatures equally are also endeavouring by amendments to achieve the same
objective. the present case is one in this regard.
Keeping
this in view, we now proceed to examine the present case.
In
interpreting any procedural law, where more than one interpretation is
possible, the one which curtails the procedure without eluding the justice is
to be adopted. The procedural law is always subservient to and is in aid to
justice. Any interpretation which eludes or frustrates the receipient of
justice is not to be followed.
This
appeal arises out of the judgment and order of the High Court of Madhya
Pradesh, Bench at Indore, in Civil Revision No. 406 of 1983.
The
question raised is, whether the third party in possession of a property
claiming independent right as a tenant not party to a decree under execution
could resist such decree by seeking adjudication of his objections under order
21, Rule 97 of the Civil Procedure code? The respondent No. 1, Rajesh, filed a
suit for the redemption of his mortgage against respondent No.2, Prem Shanker,
which was decreed. The decree directed the delivery of vacant possession of the
mortgaged property to the applicant (Respondent No.1). In the said suit,
admittedly, the present appellants were not parties. The decree-holder put his
decree in execution in which the present appellants obstructed on the ground
that vacant possession cannot be delivered in execution because they were the
tenants in the shop from the year 1952 much before the execution of the
mortgage which was in the year 1962, hence, only symbolical possession can be
given. There has been two rounds of proceedings in execution. Initially, the Executing Court held that the decree-holder was not
entitled to take actual possession in execution of the decree against the non-
applicants. The case of the decree-holder is that in the suit it was held that
the mortgagor had to deliver vacant possession to the mortgagee. hence he is
entitled to get back vacant possession. Thus he made strong plea for a vacant
possession in terms of the decree. For him, it is submitted that a similar
objection was taken by the judgment debtor Prem Shanker that only symbolic
possession could be given to the decree-holder. The objection was negatived by
the trial court, appellate court, and even by the High Court in the second
appeal. Hence, the executing court cannot go behind the decree. The appellants
case is they were not parties to those proceedings. However, this objection of
the decree-holder was rejected in the first round by the Executing Court and the Revisional Court holding that the person resisting
viz. the present appellants were not parties to the suit nor there is any
decree against them. It seems subsequently, the decree-holder again moved
another application in the aforesaid execution case No. 1A of 19970- 81 for
delivery of vacant possession. The present appellants also moved an application/objections
under order 21, Rule 97 C.P.C. resisting that they cannot be dispossessed in
terms of the said decree, as they were not parties to the said suit nor they
are deriving any right and title through the Judgement debtor. They claim
separate and independent legal right, not affected either by the mortgage or
redemption of the mortgage. it is not clear as under what circumstances the
second application for actual possession was made by the decree-holder after
the matter was earlier disposed of.
Since this
point seem not raised either before the Executing Court or the High Court, we are not adverting to this point.
We
find the Executing
Court in the second
round on consideration of a subsequent decision of the Full Bench of manmohan Bajaj
and others (AIR 1980 (Vol 67) M.P. 146), held that the appellants had no right
to object to the decree under order 21, Rule 97. The said full Bench held :-
"The executing Court has no jurisdiction to start an enquiry suo motu or
at the instance of a third party other than the decree- holder/aution-purchaser
under 0.21, Rule 97. This rule is merely permissive and not mandatory so that
the decree-holder/aution- purchaser not resort to it against his will and may
even apply for fresh warrant under 0.21, R. 35, C.P.C. Executing Court is not
bound to stay its hands the moment a third party files an objection to the
execution nor the stay would continue till an unwilling decree-
holder/auction-purchaser is forced to apply for investigation into the right or
title claimed by the third party and negative the claim therein. If the
executing Court were to stay its hands till investigation into a third party's
claim is not finally decided then it would result in depriving the
decree-holder of his possession by filing repeated spurious claims.
No
enquiry into the title or possession of a third party is contemplated at any
rate at his instance either under Rules 35 and 36 or rules 95 and 96 of Order,
21, C.P.C. when the decree-holder or the auction-purchase applies for obtaining
possession. Subsequently when the decree-holder or auction - purchaser is met
with obstruction or resistancee in obtaining possession, one of the options
open to him is to apply under Rule 97 but that provision is merely permissive
and not mandatory and it is open to the decree- holdr/auction-purchaser apply
instead for a fresh warrant of possession. an enquiry at the instance of a
third party in possession is contemplated only under 0.21.R 100 after he was
dispossessed and not before it.
The
omission by the executing Court to investigate into the objection filed by a
third party does not result in injustice to the third party. It cannot be said that
he would have no remedy to protect his possession and have his title judicially
investigated brief to his dispossession his only remedy then being under order
21, Rule 100 after dispossession. Another remedy available to such a third
party is to institute an independent civil suit for a declaration of his title
claiming therein the relief of temporary injuction to protect his
possession." The High Court upheld the Executing Court's order following the said Full Bench decision of the M.P.
High Court. hence this appeal. The only question raised is, whether the Full
Bench decision is correctly decided. In view of this Full Bench decision,
objection of the appellant was rejected without considering the points raised
on merit or other objections.
In
order to appreciate the controversy, order 21, Rule 35, order 21, Rule 36 and
order 21, Rule 97 are quoted hereunder :- "O. 21. R. 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, be 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 a possession of any building is 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.
O.21,
R.36 Decree for delivery for immovable property when in occupancy of tenant:-
Where a decree is for the delivery of any immovable property in the occupancy
of a tenant or other person entitled to occupy the same and not bound by the
decree to relinquish such occupancy, the court shall order delivery to be made
by affixing a copy of the warrant in some conspicuous place on the property,
and proclaiming to the occupant by beat of drum or other customary mode, at
some convenient place, the substance of the decree in regard to the property.
O.21,
R. 97 : Resistance or obstruction to possession of immovable property :- (1)
Where the holder of a decree for the possession of immovable property 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." This sub-clause (2) was substituted by the Amending Act 1976.
Earlier sub-clause (2) was :
"The
Court shall fix a day of investigating the matter and shall summon the party
against whom the application is made to appear and answer the same." Under
sub-clause 1 order 21, Rule 35, the Executing Court delivers actual physical
possession of the disputed property to the decree-holder and, if necessary, by
removing any person bound by the decree who refuses to vacate the said property.
The significant words are by removing any person bound by he decree. Order 21,
Rule 36 conceives of immovable property when in occupancy of a tenant or other
person not bound by the decree, the Court delivers possession by fixing a copy
of the warrant in some conspicuous place of the said property and proclaiming
to the occupant by beat of drum or other customary mode at some convenient
place, the substance of the decree in regard to the property. In other words,
the decree-holder gets the symbolic possession. Order 21, rule 99 conceives of
resistance or obstruction to the possession of immovable property when made in
execution of a decree by "any person". this may be either by the
person bound by the decree, claiming title through judgment debtor or claiming
independent right of his own including tenant not party to the suit or even a
stranger. A decree holder, in such case, may make an application to the
Executing Court complaining such resistance, for delivery of possession of the
property.
Sub-clause
(2) after 1976 substitution empowers the executing Courts when such claim is
made to proceed to adjudicate upon the applicants claim in accordance with
provisions contained hereinafter. This refers to Order 21, Rule 101 (As ammended
by 1976 Act) under which all questions relating to right, title or interest in
the property arising between the parties under Order 21, Rule 97 or Rule 99
shall be determined by the Court and not by a separate suit, By the amendment,
one has not to go for a fresh suit but all matter pertaining to that property
even if obstructed by a stranger is adjudicated and finality given even in the
executing proceedings. We find the expression "any person" under
sub-clause (1) is used deliberately for widening the scope of power so that the
Executing court could adjudicate the claim made in any such application under
order 21, Rule 97. Thus by the use of the words 'any person' it includes all
persons resisisting the delivery of possession, claiming right in the property
even those not bound by the decree, includes tenants or other persons claiming
right on their own including a stranger.
So,
under order 21, Rule 101 all disputes between the decree-holder and any such
person is to be adjudicated by the Executing Court. A party is not thrown out
to religate itself to the long drawn out arduous proceedure of a fresh suit.
This is to salvage the possible hardship both to the decree-holder and other
person claiming title on their own right to get it adjudicated in the very
execution proceedings. We find that order 21, Rule 35 deals with cases of
delivery of possession of an immovable property to the decree-holder by
delivery of actual physical possession and by removing any person in possession
who is bound by a decree, while under Order 21, Rule 36 only symbolic
possession is given where tenant is in actual possession.
Order
21, rule 97 as aforesaid, conceives of cases where delivery of possession to
decree-holder or purchaser is resisted by any person. 'Any person' , as
aforesaid, is wide enough to include even a person not bound by a decree or
claiming right in the property on his own including that of a tenant including
stranger.
Prior
to the 1976 Ammending Act, provisions under Order 21, Rules 97 to 101 and 103
were different which are quoted hereunder :- "97.(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)
The Court shall fix a day for investigating the matter and shall summon the
party against whom the application is made to appear and answer the same.
98.
Where 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, 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 to be detained in the
civil prison for a term which may extend to thirty days.
99.
Where the court is satisfied that the resistance or obstruction was occasioned
by any person (other than the judgment-debtor) claiming in good faith to be in
possession of the property on his own account or on account of some person
other than the judgment-debtor, the Court shall make an order dismissing the
application.
100.
(1) Where any person other than the judgment-debtor is dispossessed of
immovable property by the holder of a decree for he possession of such property
or, where such property or where such property has been sold in execution of a
decree, by purchaser thereof, he may make an application to the Court
complaining of such dispossession.
(2)
The Court shall fix a day for investigating the matter and shall summon the
party against whom the application is made an answer the same.
101.
Where the Court is satisfied that the applicant was in possession of the
property on his own account or on account of some person other than the
judgment- debtor, it shall direct that the applicant be put into possession of
the property.
103.
Any party not being a judgment-debtor against whom an order is made under rule
98, rule 99 and rule 101 may institute a suit to establish the right which he
claims to the present possession of the property, but, subject to the result of
such suit (if any), the order shall be conclusive." So far sub-clause (1)
of Rule 97 the provision is same but after 1976 amendment all disputes relating
to the property made under Rules 97 and 99 is to be adjudicated under Rule 101,
while under unamended provision under sub- clause (2) of Rule 97, the Executing
Court issues summons to any such person obstructing possession over the decretal
property. After investigation under Rule 98 he Court puts back a decree-holder
in possession where the Court finds obstruction was occassioned without any
just cause, while under rule 99 where obstruction was by a person claiming in
good faith to be in possession of the property on his own right, the Court has
to dismiss the decree-holder application. Thus even prior to 1976 right of any
person claiming right on his own or as a tenant, not party to the suit such
person's right has to be adjudicated under rule 99 and he need not fall back to
file a separate suit, By this, he is saved from a long litigation. So a tenant
or any person claiming a right in the property, on his own, if resists delivery
of possession to the decree-holder the dispute and his claim has to be decided
after 1976 amendment under Rule 97 read with Rule 101 and prior to the
amendment under Rule 97 read with Rule 99. However, under the old law, in cases
order is passed against the person resisting possession under Rule 97 read with
Rule 99 then by virtue of Rule 103, as it then was, he has to file a suit to
establish his right. But now after the amendment one need not file suit even in
such cases as all disputes are to be settled by the Executing court itself
finally under rule 101.
We
find both either under the old law or the present law the right of a tenant or
any person claiming right on his own of the property in case he resists, his
objection under order 21, Rule 97, has to be decided by the Executing court
itself.
Rule
100 of the old law, as referred in the aforesaid Full Bench decision of the madhya
Pradesh High Court is a situation different from what is covered by Rule 97.
Under rule 100 (old law) and Order 99 the new law covers cases where persons
other than judgment-debtor is dispossessed of immovable property by the
decree-holder, of course, such cases are also covered to be decided by the
Executing Court. but this will not defeat the right of such person to get his
objection decided under Rule 97 which is a stage prior to his dispossession or
a case where he is in possession. In other words, when such person is in
possession the adjudication to be under rule 97 and in case dispossessed
adjudication to be under rule 100 (old law) and Rule 99 under the new law. Thus
a person holding possession of an immovable property on his own right can
object in the execution proceeding under Order 21, rule 97. One has not to wait
for his dispossession to enable him to participate in the execution
proceedings. This shows that such person can object and get adjudication when
he is sought to be dispossessed by the decree-holder. For all the aforesaid
reasons, we do not find the Full Bench in Smt. Usha jain (supra) correctly
decided the law. is held :- "Para B: Thus the scheme of the Code clearly
adumbrates that when an application has been made under Order 21, Rule 97, the
court is enjoinded 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 or 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 Amendement 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 and 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 exeuction." Another (1997) (3) SCC 694), the
question raised was whether a stranger occuping the premises on his own right
when offered resistance to the execution of the decree obtained by the decree
holder can or cannot request the Executing Court to adjudicate his claim
without being insisted upon that first he must handover the possession and then
move an application under Order 21, Rule 97. It is held in para 9 :- "Para
9 : In short the aforesaid statutory provisions of Order 21 lay down a complete
code for resolving all disputes pertaining to execution of the 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 the remedy
available to the decree-holder against such an obstructionist is only under
Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and
insist on reissuance of warrant for possession under Order 21, Rule 35 with the
help of police force, as that course would amount to bypassing and
circumventing the procedure laid down under Order 21, Rule 97..
..............." In view of the aforesaid finding and the law being well
settled the interpretation given by the aforesaid full Bench Bajaj (supra)
cannot be held to be a good law. As we have recorded above, both the Executing
Court and the High court have rejected the application of the applicant under
Order 21, Rule 97 only on the basis of the said Full Bench decision, hence the
said order cannot be sustained.
Accordingly,
both the orders dated 20th February, 1985 passed by the High Court in civil Revision
No. 406 of 1983 and the order dated 20th April, 1983 passed by Executing Court
in execution case No. 1-A/70/81 is herewith quashed.
We
direct the Executing Court to consider and dispose of the objections and the
application of the appellants under Order 21, Rule 97 after giving opportunity
to the parties in accordance with law. The appeal is accordingly allowed. On
the facts and circumstances of the case, cost on the parties.
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