Chandrika vs Gangadharan and Others

Kader, J.—The two points arising for decision in this revision filed by a third party challenging an order passed in execution in E.A. 344/1982 in E.P. 207/1982 in O.S. 408/1974 on the file of the Munsiff''s Court, Parappanangadi, rejecting the prayer of the Petitioner to get herself impleaded in the execution proceedings are:

(1) Whether at the instance of a third party to the decree, resisting or obstructing the delivery, the decree-holder can be compelled to file an application under Order XXI, Rule 97, Code of Civil Procedure.

(2) Whether the application E.A. 344/1982 filed by the Petitioner u/s 151, CPC is maintainable.

A few facts necessary for the disposal of this revision as disclosed from the affidavit filed by the Petitioner in the court below and the other records available can now be stated as hereunder.

O.S. No. 408/1974 was a suit for partition and as per the decree in that suit the rights of deceased Kutta were said to have been set apart to the Respondents herein and to Chinnan, the husband of the Petitioner. It is alleged that Chinnan married the Petitioner on 5th July 1982 as per a marriage udampady. Chinnan was in intimacy with the Petitioner and as a result, she became pregnant, even before the marriage. According to the Petitioner, after the marriage Chinnan took her to the house which is sought to be delivered in execution, and thereafter she has been residing in that house. On 13th July 1982 without notice to the Petitioner, Chinnan revoked the marriage and send a notice stating that the Petitioner was staging sathyagraha on the varandah of the house in question. Chinnan also assigned his right in the house in favour of Chandran in order to defeat the rights of the Petitioner. When the decree in O.S. 408/1974 was sought to be executed, the Petitioner resisted the delivery. On the report of the Admin, police help was ordered. It was then that the Petitioner filed an application to get herself impleaded in the execution petition, contending that the allegations made by Chinnan against her are incorrect and that she had filed O.S. 230/1982 for a declaration that the assignment made by Chinnan in favour of Chandran was invalid.

Respondents 1 and 2 contended that the Petitioner has absolutely no right whatsoever in the property or any locus standi to obstruct delivery, and that the petition is not maintainable.

The executing court after hearing both sides held that the petition filed u/s 151 CPC by the Petitioner is not maintainable.

Strongly assailing this order, the learned advocate, appearing for the Petitioner contended that the order of the court below is illegal; and that when delivery is obstructed the decree-holder is bound to move an application under Order 21, Rule 97 as in such circumstances this is one of the two remedies left open. The counsel submitted that the principles stated in Bhagwat Narayan Dwivedi Vs. Kasturi, may kindly be accepted and the revision allowed. No other point was urged on behalf of the Petitioner.

The learned Advocate appearing for Respondents 1 and 2 with equal vehemence contended relying on the decisions in Smt. Jairaji Vs. Firm Jagarnath Prasad and Others, , and in Abdul Rasid Khan Vs. Sk. Rahimtulla and Others, that a stranger to the decree cannot compel the decree-holder to file an application under Order 21, Rule 97, CPC and that the application filed by the Petitioner u/s 151 CPC in the court below is not maintainable.

The relevant rules for consideration are rules 35, 95 and 97 of Order 21, CPC Order XXI, Rule 35(1) states that where a decree is for delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. Under Rule 95, where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same. Rule 97 reads:

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 in 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.

Rule 97 is the relevant and important rule with which we are concerned in this case. This is the positive and specific provision in Order XXI which provides for the holder of a decree for the possession of an immovable property to approach the court, when the execution of the decree is resisted or obstructed by any person in obtaining the property, with an application complaining of such resistance or obstruction. Under Sub-rule (2) which was introduced by the amendment in 1976 powers have been conferred on the court to adjudicate upon the application filed under sub-Rule 1 of Rule 97, in accordance with the provisions contained in the Code of Civil Procedure.

In Kesavan Padtnanabhan v. Neelakantan Narayanan 1955 KLT 413, a Full Bench of the Travancore-Cochin High Court while dealing with a case of anticipatory obstruction petition filed by a stranger and considering the maintainability of such a petition u/s 151 CPC held as follows:

Rules 97 to 100 of Order 21 provide for the persons who can approach the court and the time when and the purpose for which they can approach. Positive provisions having been made in this behalf, there is no scope for resorting to the inherent powers of the court u/s 151.

It was also held that the only occasion when a stranger to the decree can approach the court is that contemplated by Rule 100 which is after his dispossession.

A Division. Bench of the Travancore-Cochin High Court in George v. Varkeji 1952 KLT 660 had occasion to consider the applicability of provisions in rules 97 to 100 of Order 21 and the maintainability of a petition filed by a strange. It was held in that case that a stranger is not entitled to approach the court for adjudication of his title to or possession of property before the property is either attempted to be taken out of him and on his obstruction the person entitled to possession seeks to obtain delivery after removal of the obstruction, or before he is dispossessed and he complains of dispossession and seeks restoration.

The decision in George v. Varkej 1952 KLT 660, was affirmed by the Full Bench of the same High Court in Kesavan Padmanabhan v. Neelakantan Narayanan 1955 KLT 413. Both these decisions have been referred to and relied on by the Allahabad High Court in Smt. Jairaji Vs. Firm Jagarnath Prasad and Others, .

Under Rule 35 of Order 21; the executing court can order delivery of the property to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, if necessary, by removing any person bound by the decree who refuses to vacate the property. Where a decree-holder or an auction purchaser is resisted by a person on behalf of the judgment-debtor or claiming under the judgment-debtor and if the court is satisfied that the resistance or obstruction has been offered without any substance or claim of the obstructor on the face of it is unacceptable and cannot be said to be done in good faith, the court is bound to remove the obstruction and put the decree-holder in possession. The matter is different when a stranger resists or obstructs the delivery claiming independent right in him. In either case, the decree-holder or auction purchaser cannot be compelled to move an application under Rule 97 of Order 21. A careful reading of Rule 97 shows that the provisions therein are only directory and not mandatory. Relying on and referring to the decisions of the T.C. High Court and some earlier decisions of the Allahabad, Bombay and Madras High Courts, it was held in Smt. Jairaji Vs. Firm Jagarnath Prasad and Others, , that the executing court has no power to compel a decree-holder to move an application under Order XXI, Rule 97, CPC and that if, on the other hand, the executing court is satisfied that the claim of the person who resists or obstructs is prima facie not acceptable and not bona fide, the court will be within its rights to issue a second warrant for delivery of possession and the court is not bound to make an enquiry of the nature contemplated by Order XXI, Rule 97. But before a court can pass an order for removal of obstruction or resistance, it has to be satisfied by making a prima facie enquiry as the circumstances of the case may require that the obstructor belonged to one or other of the categories mentioned in Order XXI, Rule 95, CPC An enquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and applies under Rule 100 of Order 21 complaining of such dispossession. After the amendment in 1976, a detailed enquiry into the question of title is contemplated under Rule 97 which is merely an enabling provision intended for the benefit of the decree-holder or auction purchaser. If Rule 97 is to be construed in such a way as conferring a right on a third party to the decree, to compel the decree-holder/auction purchaser to file an application under this rule, it will be only opening the flood gate of spurious claims and encouraging spurious claimants to indefinitely delay the execution.

It was placing reliance on the decision reported in Bhagwat Narayan Dwivedi Vs. Kasturi, , that the counsel for the Petitioner contended that on the facts and circumstances of this case, two remedies were open to the decree-holder: one was to file an application under Rule 97 of Order XXI and the other was to file a suit. The counsel contended that in the circumstances of the case the decree-holder was bound to file an application under Rule 97 of Order XXI, CPC and should not have filed an application for police aid for dispossessing the Petitioner. The counsel also relied on the decision of this Court in Mammoo v. Krishnan 1978 KLT 901. This decision was cited to show that the executing court has seriously erred in ordering police aid on the application filed by the decree-holder, and that the court below should not have allowed that application as a matter of course. The decision reported in Bhagwat Narayan Dwivedi Vs. Kasturi, was cited before my learned brother Vadakel, J. who disposed of the case reported in 1978 KLT 901. This Court held in that case, that the decree-holder is entitled to apply for warrant for delivery of property decreed in his favour despite obstruction when it was sought to be delivered over on an earlier occasion and the court is competent to issue afresh another warrant leaving the obstructor free to resist delivery again, if he so chooses, but before issuing another warrant, the court should on sufficient materials be satisfied of a strong prima facie case that the obstructor is one bound by the decree. I have already stated that the Petitioner was claiming right over the property only under Ghinnan, one of the Defendants bound by the decree. One fails to understand how she can claim any right in the suit property and how she is competent to challenge the assignment made in favour of Ghandran.

The Division Bench ruling of the Madhya Pradesh High Court in Bhagwat Narayan Dwivedi Vs. Kasturi, , has been overruled by a Full Bench of same High Court in Smt. Usha Jain and Others Vs. Manmohan Bajaj and Others, , holding that the executing court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder of auction purchaser under Order XXI, Rule 97, that a third party resisting the execution has no locus standi to claim investigation into his right or title prior to his dispossession, and that Rule 97 of Order XXI is merely permissive and not mandatory so that the decree-holder or auction purchaser need not resort to it against his will and may even apply for afresh warrant under Order XXI, Rule 35, CPC It was also held that an executing court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder or auction purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein and that if the executing court were to stay its hands till investigation into a third party''s claim is not finally decided, then it would result in depriving the decree-holder of his possession by filing repeated spurious claims. The nature of the enquiry contemplated under Rule 97, after the amendment of the Code in 1976 has also, been pointed out in this decision. The decisions of the High Courts of Nagpur, Patna, Bombay, Calcutta and Orissa under Rules 35, 36, 95, 96, 97, 98, 99 and 100 of Order XXI, CPC have been referred to and to some extent relied on by the Full Bench in Smt. Usha Jain and Others Vs. Manmohan Bajaj and Others, . I am in respectful agreement with the dictum laid down in the above case.

Now as regards the maintainability of application filed by the Petitioner u/s 151, Code of Civil Procedure, the counsel for the Respondents relying on the decision in Smt. Jairaji Vs. Firm Jagarnath Prasad and Others, , and in Abdul Rasid Khan Vs. Sk. Rahimtulla and Others, contended that the petition u/s 151, CPC is not maintainable. It is now well settled that when specific and positive provisions have been made under the Code in respect of a matter, there is no scope for resorting to inherit powers u/s 151, CPC A stranger to a decree for possession of immovable property cannot approach the executing court by means of an application u/s 151, CPC for impleading and recording obstruction (See AIR 1953 T.C. 123 and AIR 1955 T.C. 225).

In the light of these decisions, the petition filed u/s 151, CPC by the Petitioner to get herself impleaded in the execution proceedings, has to be held to be not maintainable. This point also is found against the Petitioner.

In the result this revision petition fails and is hereby dismissed with costs.

The counsel for the Petitioner submitted that it may be made clear that the findings and observations made in this order may not in any way affect the contention of the Petitioner in O.S. 230/1982 filed by her. It is therefore made clear that the observations or findings in this order will not in any way affect the contentions of the Petitioner in the above suit. The executing court is directed to dispose of the execution proceedings within four weeks of the receipt of the records in the case by that court.