B. Dhanam vs P. Usha Rani and Others

T.S. Sivagnanam, J.—This revision filed under Article 227 of The Constitution of India is directed against the fair and final order dated

23.01.2007 made in Transfer O.P. No. 69 of 2006 on the file of the Principal District Court, Salem. The petitioner is the plaintiff in O.S. No.

1290 of 2004 on the file of the District Munsif Court, Salem. The suit was filed for a decree of specific performance and the fourth respondent

herein was the sole defendant. The suit was decreed by the judgment and decree dated 11.10.2004. Thereafter, the petitioner filed R.E.P. No.

309 of 2005 to execute the sale deed in her favour and the same was allowed by the Court by order dated 20.10.2005 and the sale deed was

executed by the Trial Court and the execution proceedings was terminated. Thereafter, for delivery of possession, the petitioner filed another

petition in R.E.P. No. 472 of 2005 under Order 21 Rule 11 C.P.C. When the said petition was pending, respondents 1 to 3 herein who are the

daughters of the fourth respondent/judgment debtor in O.S. No. 1290 of 2004 filed a petition in R.E.A. No. 33 of 2006 under Order 21 Rules 97,

98, 101 r/w Section 151 C.P.C. to determine their rights and share in the suit property to declare that the decree obtained by the petitioner herein

in O.S. No. 1290 of 2004 cannot be enforced against them (respondents 1 to 3 herein) and the scheduled mentioned suit property and for the

order of permanent injunction to restrain the petitioner from in any manner causing disturbance to them and to dismiss the execution petition. This

petition was filed on 05.01.2006. Within a period of one week i.e. on 12.01.2006, respondents 1 to 3 herein filed separate suit in O.S. No. 104

of 2006 on the file of the Sub Court, Salem, claiming partition of the very same property, which is the subject matter of R.E.P. No. 472 of 2005

and R.E.A. No. 33 of 2006. After filing the said suit, respondents 1 to 3 filed the transfer petition before the Principal District Court, Salem in

Transfer O.P. No. 69 of 2006 to transfer R.E.A. No. 33 of 2006 to be heard and decided along with O.S. No. 104 of 2006 pending before the

Sub Court, Salem. The said petition was resisted by the petitioner by stating that the petition filed under Order 21 Rules 97, 98, 101 cpc has to be

decided by the Executing Court as it has power to decide all issues and even assuming that respondents 1 to 3 have specifically claimed for

partition, those proceedings shall await the result in the petition filed under Order 21 Rules 97, 98, 101 C.P.C. Nevertheless, the Principal District

Court, without going into the legal question, opined that joint trial of R.E.A. No. 33 of 2006 along with O.S. No. 104 of 2006 would help the

parties to settle the dispute in the same Court without multiplicity of proceedings and ordered for transfer of the said R.E.A. No. 33 of 2006 to be

tried along with O.S. No. 104 of 2006. Challenging the said order, this Civil Revision Petition has been filed.

I have heard Mr. T. Murugamanickam, learned counsel for the petitioner. Though the respondents have been served and their names are printed

in the cause list, none appears for the respondents.

The legal issue, which ought to have been decided by the District Court is as to whether the petition filed by respondents 1 to 3 herein for

determining their rights in the suit property and for declaration that the decree obtained in O.S. No. 1290 of 2004 may not be enforced and should

be decided by the Executing Court or should it be transferred and to be tried along with any subsequent suit filed by respondents 1 to 3 for

partition. The answer to such question is no longer res integra and has been settled by the several decisions of the Honorable Supreme Court, of

which it would be suffice to refer two such decisions. In Shreenath and Another Vs. Rajesh and Others, . The question which arose for

consideration was whether the third party in possession of the property claiming independent right as a tenant not party to a decree for redemption

of mortgage under execution could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 C.P.C. The Honorable

Supreme Court while examining such question examined the powers of Executing Court under Order 21 Rules 97, 98 as well as Rule 101 and

held as under:

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 refused to vacate the said property. The significant words are by

removing any person bound by the 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 amended by 1976 Act) under which all questions relating

to rights, 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 matters 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 resisting 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 relegate itself to the long drawn out arduous procedure 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.

In the above decision, the Honourable Supreme Court also noticed the position prior to the 1976 Amendment Act, under which the provisions

of Order 21 Rules 97 to 101 and Rule 103 were different and in para 13 and 15, it has held as follows:

. . . . . . . . . . . . .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 case 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.

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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.

In N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, , the appeal arose out of an order rejecting the application

filed by the appellant therein under Order 21 Rule 101 C.P.C., which order of dismissal was confirmed by the High Court and the matter was

carried to the Supreme Court and the Honourable Supreme Court held that the Executing Court has to decide all questions raised by such

complainant, including questions regarding right, title or interest in the property, notwithstanding the provisions of any other law to the contrary. It

was further held that the aim of enacting Rule 101 is to remove technical objections to applications filed by aggrieved party whether he is a decree

holder or any other person in possession. The operative portion of the judgment is quoted herein below:

. . . . . . . . . . . . .Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder

entitled to possession of the property encounters obstruction from ""any person"". From the provisions in these Rules which have been quoted earlier

the scheme is clear that the legislature has vested wide powers in the executing court to deal with ""all issues"" relating to such matters. It is a general

impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in

his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the

apprehension in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of the decree, the legislature made

drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all

questions including questions relating to right, 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. On a fair reading of the Rule it is manifest that the legislature has

enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the

decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to

deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain dispute of the nature. This clear

statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The

court cannot shirk its responsibility by skirting the relevant issues arising in the case.

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From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his

possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all

questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of

Order 21 Rule 103 is to be treated as a decree.

In the light of the above referred decisions, there is a duty cast upon the Executing Court to decide all questions and the purpose and object of

introduction of the Rules is to decide such questions by the Executing Court itself and not by a separate suit. Having come to the conclusion that

the Executing Court has got the power and jurisdiction to decide all questions raised by respondents 1 to 3 including the question regarding their

right, title or interest in the suit property notwithstanding the provisions of any other law to the contrary and the object of the Rule being to avoid

technical objections, the next question to be seen is whether the application filed by respondents 1 to 3 under Order 21 Rules 97, 98, 101 can be

tried along with the suit in O.S. No. 104 of 2006. To answer this question, this Court would place reliance on the decision of the Honourable

Supreme Court in Bhaskaran Vs. Sheela ( (2008) 17 SCC 1). The first respondent before the Honourable Supreme Court filed a suit for recovery

of possession on the strength of a conveyance executed in her favour and the suit was decreed and the appeal preferred before the High Court

was pending. During the pendency of the appeal, the rent control proceedings were initiated under the provisions of Kerala Buildings (Lease and

Rent Control) Act on the ground of default in payment of rent for the suit building along with the ground that the building is required for owner''s

occupation. The said rent control proceedings were dismissed on the ground that the title in relation to the building was in dispute in the suit.

Ultimately, the rent control proceedings ended in favour of the petitioner therein and two months time was granted to pay the arrears of rent.

Eviction was ordered and Execution Petition was filed for delivery of possession of the said premises. This petition was resisted and the Court

ordered delivery with police help. To resist the order of eviction, a suit was filed for bare injunction and injunction was also granted from evicting

the person. Ultimately, the matter came before the High Court and the High Court observed that the Trial Court has simply proceeded on the basis

that the agreement in question was genuine and shifted the burden of proving the agreement to be a manufactured agreement by the respondent.

Before the Supreme Court, it was contended that the execution proceedings commenced much prior to the filing of the suit for specific

performance and the order under Rule 97 was passed by the Executing Court after the suit has been filed and therefore, it would be subject to the

provisions of Rule 104 and would have to await the outcome of the suit for specific performance. The Honourable Supreme Court while answering

the said question held that the suit for specific performance of contract was considerably later in point of time than the commencement of the

execution proceedings and the provisions of Rule 104 of Order 21 of the code will not apply. The operative portion of the judgment reads as

follows:

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

Since the appellant'' 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.

As noticed above, in the instant case, the suit in O.S. No. 1290 of 2004 was decreed by the District Munsif Court, Salem on 11.10.2004. The

sale deed was executed pursuant to orders in R.E.P. No. 309 of 2005 on 20.10.2005. Thereafter, respondents 1 to 3 have filed the petition under

Order 21 Rules 97, 98 and 101 C.P.C. on 05.01.2006. In the said petition, they wanted their title to be adjudicated and they raised a plea that the

decree is not binding on them and it cannot be executed and the execution petition should be dismissed. Thus, having elected to file an application

under Order 21 Rules 97, 98 and 101 C.P.C., they have also filed a separate suit on 12.01.2006 seeking for partition in respect of the same

property in O.S. No. 104 of 2006 before the Sub Court, Salem. Thus the suit for partition before the Sub Court, Salem having been filed much

after the initiation of the execution proceedings and after this, respondents 1 to 3 filed an application before the Executing Court under Order 21

Rules 97, 98 and 101 C.P.C., R.E.A. No. 33 of 2006 ought not to have been transferred to be tried along with O.S. No. 104 of 2006. If the

order impugned is allowed to stand, it would be contrary to the decision of the Honourable Supreme Court referred supra. For all the above

reasons, the petitioner is entitled to succeed and accordingly, the Civil Revision Petition is allowed and the impugned order is set aside. The

Executing Court is directed to hear and dispose of R.E.A. No. 33 of 2006 on merits and in accordance with law. No costs. Consequently,

connected miscellaneous petition is closed.