Bhaskaran Vs. Mooliyil Padinhjarekandy Sheela  INSC 1729 (14 October
SUPREME COURT OF
INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6103____ OF 2008 @ S.L.P.
(C) NO.1823 of 2007 Vaniyankandy Bhaskaran ..Appellant Mooliyil Padinhjarekandy
interesting question regarding the interpretation of Rule 104 of Order 21 of
the Code of Civil Procedure in relation to Rule 101 thereof has been raised by
Mr. M.K.S. Menon, learned counsel for the appellant. In order to appreciate his
submissions, it is necessary to briefly set out the facts of the case giving
rise to such question.
appellant, who was the original owner of the suit property along with the
building erected thereupon, allegedly took a loan of Rs.50,000/- from the
husband of the respondent No.1 and under the guise of security for the loan the
appellant was made to execute a conveyance in respect of the suit property
measuring 88 cents in favour of the respondent No.1 on 1st October, 1986.
According to the appellant, on the same day his wife was also made to sign on a
blank paper, which was later on converted into a Rent Deed. It also appears
that on account of another loan taken by the appellant from the Syndicate Bank,
OS No.176 of 1982 was instituted by the Bank against the appellant for recovery
of the amounts due, before the Subordinate Court, Thalasherry, in which the
suit property was attached.
1990, OS 239 of 1990, filed by the respondent No.1 before the Subordinate
Court, Thalasherry, for recovery of the suit property on the strength of the
conveyance executed in her 3 favour, was decreed. An appeal was preferred
therefrom by the appellant before the High Court, being AS No.609 of 1992, and
during the pendency of the appeal, the respondent No.1 filed RCP No. 292 of
1993 against the wife of the appellant under Sections 11(2)(b) and 11(3) of the
Kerala Buildings (Lease and Rent Control) Act, 1965, on the ground of default
in payment of rent for the suit building since August, 1989. An additional
ground was also taken by the respondent No. 1 claiming that the building was
also required by her for her own use and occupation.
said Rent Control Petition was dismissed by the Rent Control Court on the
ground that the title in relation to the building was in dispute in OS No.239
of 1990. An appeal, being RCA No. 197 of 1994, filed by the respondent No.1
before the Rent Control Appellate Authority from the order of the Rent Control
Court, was allowed and eviction was ordered. The wife of the appellant
thereupon filed a revision petition before the High Court, being CRP No.2532 of
1996, which was dismissed on 2nd 4 April 2004, by a common judgment delivered
in AS No.609 of 1992 and CRP No. 2532 of 1996, whereby the title of the
appellant in respect of the suit property was upheld and the order passed in
RCA No.197 of 1994 was confirmed. The appellant's wife was given two months'
time to pay the arrears of rent, failing which the respondent was given leave
to take steps for execution of the order. Since the arrears were not paid
within the stipulated time, the respondent No.1 filed Execution Proceedings
No.407 of 2004 seeking the appellant's eviction and delivery of possession of
the suit premises. The appellant's wife entered appearance before the Executing
Court, which ordered delivery of possession of the suit premises to the
respondent on 2nd April, 2005. Since such delivery was resisted by the
appellant, the Court ordered delivery to be effected with Police help on 18th
July, 2005. Thereafter, attempts were made to settle the matter and the
respondent also agreed to withdraw the execution proceedings unconditionally.
According to the
appellant, although, the 5 respondent had agreed to withdraw the execution
proceedings, the same was never withdrawn, which compelled the appellant to
file OS No. 181 of 2005 and also for an injunction to prevent the eviction of
the appellant in Execution Proceedings No.497 of 2004 in RCP No.292 of 1993.
Inasmuch as, such prayer for injunction was allowed by the learned Subordinate
Judge, the respondent challenged the same before the High Court.
behalf of the respondent herein, who was the appellant before the High Court,
it was contended that when her title to the scheduled property and the building
had been upheld and the eviction had also been ordered, such execution of the
decree legally obtained could not be stalled merely on the basis of a claim
made by the husband of the judgment-debtor on the basis of an unregistered
agreement alleged to have been executed by the respondent on a stamp paper
purchased in her name.
The High Court
observed that the Trial Court had simply proceeded on the basis that the
agreement in question was genuine and had shifted the burden of 6 proving the
said agreement to be a manufactured document on the respondent. The High Court,
therefore, took the view that in order to prevent the respondent from obtaining
delivery of the possession of the suit premises in the execution proceedings,
the appellant had colluded with his wife, the judgment-debtor, in instituting
the suit for specific performance and to obtain an injunction therein to
restrain the respondent from enjoying the benefits of the decree obtained by
her. The High Court, therefore, came to the conclusion that the injunction
granted by the Trial Court in favour of the appellant herein was highly
irregular and deserved to be set aside. The injunction petition filed by the
appellant in OS No.181 of 2005, in the Court of Subordinate Judge, Thalasherry,
was therefore, dismissed.
is in the aforesaid background that Mr. Menon urged that the provisions of Rule
104 of Order 21 of the Code of Civil Procedure were required to be considered.
we shall be considering the effect of the aforesaid Rule, the same is set out
hereinbelow:- "Order XXI. Rule 104.- Order under Rule 101 or Rule 103 to
be subject to the result of pending suit. - Every order made in Rule 101 or
Rule 103 shall be subject to the result of any suit that may be pending on the
date of commencement of the proceeding in which such order is made, if in such
suit the party against whom the order under Rule 101 or Rule 103 is made has
sought to establish a right which he claims to the present possession of the
Menon submitted that the said provision was not there in the Code of Civil
Procedure in its original form and was included by amendment with effect from
1st February, 1997 together with Rules 98 to 103, 105 and 106 of Order XXI.
Menon submitted that in order to curtail the delay in executing the decree for
possession of immovable property, the amended Rules were brought on the Statute
book to enable the Executing Court 8 itself to decide claims of title which
might be raised in execution proceedings without filing of a separate suit for
the said purpose.
Menon submitted that the amended provisions of Order 21 of the Code provided
for a scheme by which any obstruction to the execution of a decree giving rise
to questions relating to right, title or interest in the suit property, arising
between the parties to a proceeding, on an application under Rule 97 or Rule 99
or their representative and relevant to the adjudication of the application, is
to be determined by the Court dealing with the application and not by a
separate suit. The said provision contained in Rule 101 has been referred to in
Rule 104 which indicates that any order made under Rule 101 or Rule 103 would
be subject to the result of any suit that may be pending on the date of
commencement of the proceeding in which such order is made. According to Mr.
Menon, although the execution proceedings were commenced on 3rd November, 2004,
and the suit 9 for specific performance was filed by the appellant on 27th
August, 2005, the actual order was passed on the application under Rule 97 by
the Executing Court on 19th December, 2005, after the suit had been filed by
the appellant. In other words, according to Mr. Menon, the suit filed by the
appellant was pending on the date when the order under Rule 97 and Rule 98 was
made and would, therefore, be subject to the provisions of Rule 104 and would
have to await the outcome of the suit for specific performance filed by the
appellant. Mr. Menon urged that the High Court had erred in relying on the provisions
of Rule 2 of Order 21 of the Code in setting aside the order of injunction
passed by the learned Subordinate Judge on the application for injunction filed
by the appellant in OS No.181 of 2005.
for the respondent, Mr. Vishwanathan, on the other hand, submitted that the
submission regarding the applicability of Rule 104 of Order 21 of the Code of
Civil Procedure to the facts of this 10 case was wholly misconceived since the
execution proceedings had been commenced long before the appellant's suit for
specific performance was filed. While the respondent's suit for recovery of
possession was decreed in 1990, the execution proceedings for executing the
decree was commenced on 3rd November, 2004, and the appellant filed his suit
for specific performance about ten months later on 27th August, 2005.
Viswanathan submitted that since the eviction proceedings against the
appellant's wife had reached its final stages, the appellant raised a new claim
based on an unregistered document to stall the execution of the decree for
possession made as far back as in 1990.
submissions made on behalf of the appellant regarding the applicability of Rule
104 of Order 21 of the Code has substance and merits consideration in an
appropriate case, but they do not justify interference with the order of the
High Court in 11 the facts of this case. The suit filed by the appellant for
specific performance of contract was considerably later in point of time than
the commencement of the execution proceedings and, in any event, the language
of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule
103 would be subject to the result of a suit pending on the date of
commencement of the proceeding in which orders were made under Rule 101 or 103.
Since the appellant's suit was filed long after the commencement of the
execution proceedings, the provisions of Rule 104 of Order 21 of the Code will
not apply to this case.
cannot also find any fault with the views expressed by the High Court in
relation to the provisions of Order 21 Rule 2 of the Code regarding adjustment
of the decree in terms of an oral settlement alleged to have been arrived at
between the parties on 21.2.2005.
we also agree with the High Court that the burden of proving that the Agreement
relied upon by the appellants was manufactured had been wrongly shifted upon
the respondent No.1 in contravention of Section 103 of the Indian Evidence Act,
therefore, find no reason for disturbing the order of the High Court impugned
in this appeal on any of the grounds urged on behalf of the appellant. The
appeal, therefore, fails and is dismissed, with cost accessed at Rs.10,000/-.