Report No. 144
Clarification is obviously needed on the point at issue. It is suggested that as a matter of legislative amendment, it is preferable to incorporate the wider view (though, the majority of the High Courts have taken a contrary view) and to provide that the words "act required to be done" cover prohibitory (as well as mandatory) injunctions. This would also be in conformity with section 3(2), General Clauses Act, 1897 which provides that in all Central Acts, the word "act" includes illegal omissions. Besides this, on the merits, there is as justification why a decree-holder should be driven to a separate suit for getting relief in the nature of enforcement of a decree which the must have obtained after considerable expenditure of time, labour and money.
8.2. Order 21, rule 97 and Application by a Third Party
8.2.1. Order 21, rule 97, may now be taken up. It deals with resistance or obstruction to possession of immovable property.
8.2.2. Question for consideration. On the question whether an application under Order 21, rule 97 by a third party other than the decree-holder/auction-purchaser is competent, there has been a conflict of decisions.
8.2.3. It has been held by the High Court of Sikkim1 that such an application is competent because-
(i) if there is a right, there must be a remedy; and
(ii) the absence of an express provision enabling a party to move the court, does not mean that a party cannot move the court for enforcing his right.
But it has been held by the High Courts of Calcutta2, Madhya Pradesh3 and Rajasthan4 that this is not permissible. The Madhya Pradesh reasoning is to the effect that the third party can institute an independent civil suit for the declaration of title, claiming therein the relief of temporary injunction to protect his possession. But an application under Order 21, rule 97, is out of question. According to the High Court of Madhya Pradesh, Order 21, rule 97 is permissive and not mandatory and the decree-holder is not bound to resort to it against his will.
'No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under the rules 35 and 36 or under rules 95 and 96 of Order 21, C.P.C. when the decree-holder or the auction-purchaser applies for obtaining possession. Subsequently, when the decree-holder or auction-purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under rule 97.
1. Ram Chandra v. Manmal Singh, AIR 1983 Sikkim 1.
2. Gopal Chandra v. Sheikh Jamsed, AIR 1951 Cal 51.
3. Usha fain v. Manmohan Bajaj, AIR 1980 MP 146 (FB).
4. Madan Lal v. Hans Raj, AIR 1985 Raj 19 (25 to 27), paras. 15-24 (M.C. Jain, J.).
8.2.4. The Rajasthan judgment, which discusses the matter elaborately, points out that if the legislature had intended to give such a right, it would have made such a provision.
8.2.5. The High Court of Calcutta1 has also held that
(i) a third party; or
(ii) a person 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; or
(iii) a person claiming bona fide to have a right to be in such possession-none of these classes of persons have locus standi to make an independent application under that provisions of Order 21, rule 99, C.P.C. It was further observed that on a construction of rules 97 to 99, it appears that if there is resistance to delivery of possession to the decree-holder or purchaser, it is only they who can apply under the provisions of Order 21, rule 97.
1. Gopal Chandra v. Sheikh Jamsed, AIR 1951 Cal 51.
8.2.6. The Punjab & Haryana High Court1 has held that the objector could file objections claiming the disputed property to be his own under rule 97 of Order 21 only when an application is made by the decree-holder under sub-rule (1) this rule and the court proceeds to adjudicate upon the application in accordance with the provisions contained in the subsequent rules.
The Madras High Court2 has emphasised that "the main feature of the amendments made by 1976 Act is that all questions including the question as to the right, title or interest in the property arising between the parties to the proceedings under rule 97 or rule 99 must be determined by the executing court and not left to be decided by way of separate suit".
1. Joginder Kaur v. Yashodadevi, AIR 1990 P&H 235.
2. N. Palaniappan v. G. Pandurangan, AIR 1990 Mad 327.
8.2.7. The Supreme Court1 decided in the negative the question whether a writ petition under Article 226 was maintainable when there were elaborate and exhaustive provisions in the Civil Procedure Code for dealing with the matter of executability of a decree, in all its aspects. The Supreme Court also observed that the claim of the writ petitioners of being in possession of the premises as tenants in there own right and not as sub-tenants of the tenant against whom alone the eviction decree had been passed, should have been adjudicated upon and finding recorded on the character of possession of the petitioners, before proceeding to consider whether the decree was executable or not against them.
1. Ghanshyamdas Gupta v. Anant Kumar, AIR 1991 SC 2251.