Ahmed Hussain vs Kanti Lal and Others

D.N. Joshi, J.—The instant revision petition has been filed against the judgment and order dated 11.1.2001 passed by the learned Additional District Judge No. 2, Bhilwara in Civil Misc. Appeal No. 17/2000, by which he dismissed the appeal against the order of Civil Judge (J.D.)-cum-Judicial Magistrate, 1st Class (East) Bhilwara passed in Civil Misc. Case No. 80/2000 - Kantilal and Anr. v. Ahmed Hussain and Anr. on an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure.

Heard Mr. K.R. Jangid, learned Counsel for the petitioner-revisionist and Mr. D.S. Shishodia, learned Counsel for the non-petitioner.

The facts of the case in brief are that the petitioner filed a civil suit against the defendant M/s. Indermal Jeetmal, a registered partnership firm at Bhilwara for eviction and arrears of rent being Civil Suit No. 303/82- Ahmed Hussain v. Firm M/s. Indermal Jeetmal in the Court of Munsif and Judicial Magistrate, Bhilwara. This suit of the plaintiff-petitioner was decreed by the learned Civil Judge (J.D.)-cum-Judicial Magistrate, First Class (East), Bhilwara by a judgment and decree dated 4.12.1996. Against the order dated 4.12.1996, a First Appeal preferred by the defendant M/s. Indermal Jeetmal was dismissed by the learned Additional District Judge No. 2, Bhilwara by its judgment dated 7.4.2000. The defendant then filed a second appeal against the judgment dated 7.4.2000, which was also dismissed by this Court on 30.5.2000 in S.B. Civil Second Appeal No. 121/2000. Thereafter, the plaintiff filed a Civil Execution Petition before the learned Civil Judge (J.D.)-cum-Judicial Magistrate, 1st Class (East), Bhilwara for delivery of possession of the suit shop. At this stage, objections to execution were filed by the respondents No. 1 and 2 purporting to be under Order 21 Rules 97, 98 and 101 C.P.C. alleging therein that one Sohanlal, the father of respondent No. 1 and grant-father of respondent No. 2 had taken the suit shop on rent from the plaintiff-petitioner on 1.2.1969 for respondent No. 3 Firm M/s. Indermal Jeetmal. In the said suit shop, initially, Sohanlal did his cloth business and thereafter the Firm M/s. Indermal Jeetmal did that business and in that business, Sohanlal, Jamsumal and Nanalal were partners. Sohanlal died on 7.6.1980 but one year before the said partnership business had come to an end and respondent No. 1 and his father Sohanlal did their cloth business and after death of Sohanlal, respondent No. 1 and his son started their business of utensils and the suit shop remained in their possession in the capacity of tenant and continue to be so. The plaintiff-applicant after the death of Sohanlal and after dissolution of the Firm M/s. Indermal Jeetmal, hands in glove with the erstwhile partner Jamsumal, brought a suit against the defunct firm M/s. Indermal Jeetmal and obtained a decree for eviction in that collusive suit. In that suit, the tenant Sohanlal and his legal heirs respondents No. 1 and 2 were not made party and therefore, they are not bound by the said decree. The plaintiff-petitioner wants to dispossess respondents No. 1 and 2 in execution of decree and under Order 21 Rule 97 C.P.C., they are entitled to get their right, title and interest in respect of the suit shop determined.

After filing the said application under Order 21 Rule 97 C.P.C., the respondents No. 1 and 2 filed another application under Order 39 Rule 1 and 2 C.P.C. being Civil Misc. Case No. 80/2000 praying their-in by way of temporary injunction that the plaintiff-petitioner may be restrained from executing the decree till their objections under Order 21 Rule 97 C.P.C. are decided. This application for temporary injunction was allowed by the learned Civil Judge (J.D)-cum-Judicial Magistrate, 1st Class (East), Bhilwara by order dated 17.7.2000 and an appeal against that order was dismissed by the learned Additional District Judge No. 2, Bhilwara by order dated 11.1.2001. Against the orders dated 17.7.2000 and 11.1.2001, the instant revision petition has been filed.

It was argued by the learned Counsel for the revisionist-petitioner that an application for temporary injunction under Order 39 Rule 1 & 2 C.P.C. can be made only in the regular suit. The objections under Order 21 Rule 97 C.P.C. not being a regular suit proper, the application for temporary injunction under Order 39 Rule 1 and 2 C.P.C. was not at all maintainable. According to him, the separate miscellaneous proceedings under Order 39 Rule 1 and 2 C.P.C. are not maintainable. The respondents, who are third party and do not claim through the said firm M/s. Indermal Jeetmal, cannot claim to be the tenants of the plaintiff-petitioner. This is not a case of the respondents that any other tenancy came into being on the death of Sohanlal or that the plaintiff-petitioner have attroned them as tenants. The respondents are therefore, rank trespassers and have no authority to remain in possession of the suit premises. Thus, they have no prima facie case in their favour and therefore, neither the balance of convenience nor irreparable injury will arise.

It was further argued that as far as the rights of the party to the decree, who has been dispossessed in execution of the decree are concerned, the CPC takes care of such a situation under Order 21 Rule 99 C.P.C. He can file objections under Order 21 Rule 99 and if his objection is found to be true by the executing Court, he is likely to be put in possession back. He need not file a separate suit for that purpose. As per argument of the learned Counsel for the petitioner, a stranger to the suit has no locus standi to file any objection under Order 21 Rules 97, 98 and 101 C.P.C. The whole proceedings under Order 21 Rules 1 and 2 C.P.C. are not only without jurisdiction but also abuse the process of the court and deserves to be quashed and set aside. It was also requested that stay may also be vacated.

learned Counsel for the non-petitioner relying on the judgments of the Hon''ble Apex Court argued that the judgment and order of the lower Courts does not suffer jurisdictional error.

Perused the order of the learned courts below.

It has been held in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, that it cannot be said that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21, Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-Rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.

It has been held in Bhanwar Lal v. Satyanarain reported in AIR 1994 SCW 4549 that a reading of Order 21 Rule 97 C.P.C. 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 de hors the judgment-debtor and he resists execution of decree, then the Court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obsruction 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.

In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal reported in AIR 1997 SCW 685 following the decision given in Bhanwarlal''s case (supra), it was held as under:

It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21 Rule 97 C.P.C. could have been offered by any person. The words ''any person'' as contemplated by Order 21, Rule 97, Sub-Rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total stranger to the decree.

In Shreenath and Another Vs. Rajesh and Others, it has been held that under the old law or the present law the right of a tenant or any person claiming right on him own of the property in case be resists, his objection under Order 21, Rule 97 has to be decided by the Executing Court itself. 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.

Thus the words "any person" in Rule 97 are comprehensive enough to include part from judgment debtor or any one claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree.

The Court is fortified in its view in view of the following decisions:

(1) Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal AIR 1997 SCW 685

(2) Hazi Abdul Gaffar v. Suraj Mal 1999 AIHC 1657. All the disputes arising between a third party and the decree holder must be decided in the execution proceeding itself.

Thus, there is no substance in the argument of the learned Counsel for the petitioner-revisionist that the application by a stranger is not maintainable under Order 21 Rule 97 C.P.C. and it could be filed only by the decree-holder.

In view of Anwarbi v. Pramod D.A. Joshi reported in 2001 SCFBRC 239 (SC) the rights of parties regarding including the obstructionist are to be adjudicated under Order 21 Rule 101 C.P.C..

Similarly, in view of Prasantha Banerji v. Pushpa Ashoke Chandani reported in AIR 2000 SCW 3662 the suit in respect of same subject matter of property filed after initiation of execution proceedings by appellant who is not party to decree is not maintainable. The appellant is entitled to raise all such lawful Sub-tenancy or any of his right in execution proceedings.

As far as the question of granting stay order by the subordinate court is concerned, there is no jurisdictional error in it as temporary injunction under inherent powers of the Court can be granted apart from Sections 94 151, Order 39 Rule 1 C.P.C. as has been held in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . It could be done to regulate and to shorten litigation in doing substantial justice. As the rights of the strangers are to be decided and could be decided only under Order 21 Rule 97 C.P.C. in execution proceedings, the order granting injunction is necessary.

The interim orders are granted by the court as they are necessary to protect the interest of the petitioner till the rights are finally adjudicated upon. Even, where it is not provided in the statute, the courts have inherent power to grant it.

Therefore, the argument of the learned Counsel for the revisionist-petitioner lacks merit. There is no jurisdictional error in the impugned order granting stay. It also cannot be said that if these orders are allowed to remain stand, it would occasion the failure of justice. In view of the judgments of the Hon''ble Apex Court cited above, the revision petition is liable to be dismissed and is hereby dismissed.