Tanzeem-E-Sufia
Vs. Bibi Haliman & Ors [2002] Insc 369 (3 September 2002)
R.C.
Lahoti & Brijesh Kumar. Brijesh Kumar, J.
Leave
granted.
Heard
learned counsel for the parties.
While
issuing notice on 28.9.2001, this Court passed the following order:
"Issue
notice limited to the question as to why the petitioner should not be allowed
to pursue at least one of the two remedies either to proceed with application
under Order XXI rule 97 C.P.C. or with civil suit.
Until
further orders the petitioner shall not be removed from possession in execution
of decree." The brief facts of the case are that the respondent Bibi Haliman
and others had filed a title suit No. 8of 1983 for eviction of the defendants.
The suit relates to holding No. 116 (Old)/182 (New) situated in ward No. 2 of Giridhih Municipality. The suit was decreed in favour of Bibi Haliman in
pursuance whereof the defendants were to handover the possession of suit
property to the plaintiff. The decree holder Bibi Haliman and others filed an
execution case No. 12 of 1984 for obtaining the possession of the premises
indicated above. It is said that according to the report of the Nazir dated
26.7.1992, the Judgment debtors No. 1 to 6 had vacated the suit premises but
Judgment debtor No. 7 Siwaitulla son of Kahamatulla had not given the
possession and at the time the Nazir went to execute the delivery of the
possession he found that Judgment debtor was lying in bed and doctors attending
him told the Nazir that Judgment debtor was a heart patient and he should not
be informed about the warrant of delivery of possession as it may adversely
affect his condition. According to the report, the son of the Judgment debtor
told the Nazir that property belongs to Sufi Ashram where Sufi Dhyan Kendra has
been established with registration No. 196 Tanzeem-e- Sufia Sufi Sant Ashram,
hence the delivery of possession could not be affected. The Judgment debtor No.
7 filed an application under Section 151 C.P.C. on behalf of one Ashok Kumar
Gupta, Secretary Tanzeem Sufia. The said application was registered as Misc.
case No. 1 of 1994 by order dated 14.2.94. The decree holder preferred a Civil
Revision No. 125/94R against the order dated 14.2.1994 at the Ranchi Bench of
the High Court. The Revision has been allowed on 13.9.1994 and order dated
14.2.1992 was set aside by the High Court observing that the applications dated
3.8.92 and 12.10.1993, moved on behalf of the objector, a 3rd party, at the
stage of execution proceeding when the decree holder had not, despite the
report of the Nazir, filed an application under Order 21 Rule 97 CPC, were
premature.
The
appellant also filed a title suit No.66 of 1993 against the decree holders in
respect of the same premises with a prayer for declaration of title in their favour,
confirmation of possession and in case found dispossessed during the pendency
of the suit, then a decree for recovery of possession was also prayed for. It
was further prayed that decree obtained in title suit No. 8 of 1983 be declared
not binding on the plaintiff, namely the present appellant. In Execution case
No. 12 of 1984, the appellant filed a caveat under Section 148 of the Civil
Procedure Code praying that in case any application under Order 21 Rule 97 CPC
is filed by the decree holder in that event caveator may be heard before
passing any order on such an application. The decree holder, thereafter filed a
petition dated 13.3.1995, for issuance of writ of a delivery of possession. The
appellant requested the executing court to treat the said application dated
13.3.1995 moved by decree holder as a petition under Order 21 Rule 97 CPC. The
executing court by order 17.8.2001, rejected the prayer of the appellant to
treat the application dated 13.3.1995 as a petition under Order 21 Rule 97 CPC
observing that appellant had no locus standi to raise objection and only remedy
available to him would be to move the executing court under Order 21 Rule 99
CPC and ordered for delivery of possession to the decree holder.
The
appellant preferred a Civil Revision against the above noted order dated
17.8.2001 passed by the executing court. In the High Court it was submitted
that a 3rd party in possession is entitled to file objections in proceedings
initiated by the decree holder under order 21 Rule 97 CPC for delivery of
possession. The High Court rejected the revision observing that the appellant
has already filed a suit for declaration of title after declaring the decree
passed in title suit No. 8 of 1983 as not binding on it and for confirmation of
its possession etc. over the property in question. Therefore, it was not
entitled to invoke the provisions of Order 21 Rule 97 CPC for the same relief.
Shri Sanyal,
learned senior counsel appearing for the appellant has vehemently urged that
the petition dated 13.3.95 moved by the Decree holder for delivery of
possession before the executing court, should be treated as an application
under Order 21 Rule 97 CPC.
And in
that event, the appellant shall be entitled to file objections before the
Executing court as a 3rd party in possession and such objections are liable to
be decided in accordance with law.
A
perusal of Order 21 Rule 97 shall facilitate the proper appreciation of the
contentions raised on behalf of the appellant. It reads as follows:
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 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 above noted provision entitles the decree holder to bring
it to the notice of the execution court the fact that the execution of the
decree is being resisted or obstructed by any person in possession of the
property. The executing court would adjudicate upon the application made under
sub-rule (1) of Rule 97 in accordance with law.
We may
also peruse Rule 99 Order 21, which reads as under:
99.
Dispossession by decree-holder or purchaser:-
(1)
Where any person other than the judgment debtor is disposessed 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 may 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." The
above provision is to be availed of after a person in possession claiming its
independent right is dispossessed, in that event such the 3rd person can
complain of dispossession to the executing court.
It
will also be appropriate to peruse Rule 101 of Order 21, it reads as under:
101.
Question to be determined All questions (including questions relating to 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 by 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." We have already seen that the decree obtained by the decree
holder could not be executed by the respondents in so far as it related to
defendant No.7. As against others the decree had been executed. The decree
holder thus filed an application, dated 13.3.95 for issuance of writ of
delivery of possession. The appellant requested that it may be treated as an
application by the decree holder under Order 21 Rule 97. We feel that the
petition dated 13.3.95 is actually an application under Order 21 Rule 97 CPC.
Though the said provision is not specifically indicated in the application but
a perusal of the application shows that the resistance/obstruction in delivery
of possession, by and at the instance of the appellant is clearly indicated
therein. It is mentioned that office of Tanzeem-e-Sufia known as Sufia Ashram,
is being run in a portion of the premises in question.
It is
also stated that one Ashok Kumar Gupta has been set up by the judgment debtor
as Secretary of the society. A prayer has been made for delivery of possession
by removing all obstructions with the assistance of armed police and lady
constables etc.
Such
an application is envisaged under Order 21 Rule 97 CPC and that being the position,
it entitles the appellant to be heard before passing any order on the
application moved by the decree holder. There is no question of treating the
application dated 13.3.95 as one under Order 21 Rule 97, in fact it is an
application under that provision. The appellant took extra precaution to inform
the court about its intention to file objections before hand and requested for
a hearing. Once an application was moved by the decree-holder on 13.3.95 there
was no occasion to refuse hearing to the appellant. According to the appellant
it is in possession of the property having been gifted to it by one of its followers
viz. Chandobibi.
In
support of the contention raised on behalf of the appellant Shri Sanyal placed
reliance upon a decision of this Court reported in 1998 (4) SCC 543 Shreemath
case that the term "any person" includes even a person not bound by
the decree who shall also be entitled to file objections. It has been so
provided to widen the scope of Order 21 rule 97, so that all such matters may
be decided at the execution stage itself to curtail the lengthy procedure of an
independent suit claiming a right not to be dispossessed from the property
covered by the decree of a Court. Another decision relied upon is reported in
1997 (3) SCC 694 Anr. It has been held that the executing court must first
adjudicate upon the objection of the objector on merits under Rule 97 (2) of
order 21 CPC. It is also observed that it should not be insisted that
possession be handed over first and an application under Order 21 Rule 99 be
moved later on complaining about dispossession.
We
find that in the case in hand the appellant is claiming its independent right
over the property and asserts its possession thereof. Order 21 Rule 101 clearly
provides that all questions relating to right, title or interest in property
relevant to the adjudication of the application, shall be dealt with the
application and not by a separate suit. The High Court therefore, erred in
refusing to hear the appellant, on the ground that it has already filed a suit
for declaration of its title and for declaration that the decree passed in
title suit No. 8 of 1983 is not binding on it. The provision contained under
Order 21 Rule 101 CPC seems to have escaped notice of the High Court while
passing the order. We would also like to observe that the reasoning given by
the execution Court while rejecting the application of the appellant as
indicated in the order of the High Court, that the remedy of the appellant
would only lie by moving an application under Order 21 Rule 99 CPC is also
erroneous as in case of Brahamdeo Chaudhary' (supra), it has been held that it should
not be insisted that possession be delivered first and the objector may later
on move the Court under Order 21 Rule 99 CPC.
For
the reasons indicated above, we allow the appeal and set aside the judgment and
order passed by the High Court as well as passed by the executing court. We
further provide that the executing court shall dispose of the application dated
13.3.95 moved by the respondents afresh after giving an opportunity of hearing
to the appellant. In the interest of justice it is desirable that the
application is disposed of expeditiously.
Costs
easy.
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