Chhotulal and Others vs Ratan Chand and Others

Navin Chandra Sharma, J.—This order will decide Civil Revisions Nos. 486 of 1985 and 352 of 1983 by this common order because in both of them common questions of law and fact are involved.

In both these revisions, the petitioners are persons who obstructed the delivery of possession which the Sales Ameen wanted to enforce in execution of a warrant for delivery of possession issued by the trial court under Order XXI, Rule 35, C.P.C. on applications for execution filed by non-petitioners in both the cases. Ratanchand non-petitioner in Civil Revision No. 485 of 1985 in execution of his decree against the judgment-debtor got a warrant of possession issued from the Munsif, Bikaner in execution case No. 68 of 1979 of that Court. This warrant of possession was returned by the Sales Ameen to the executing court with a report that the petitioners Chhotulal and Smt. Sadra, who are said to be brother and mother respectively of the judgment-debtor, obstructed the delivery of possession. Thereupon Ratanchand decree-holder filed an application under Order XXI, Rule 97. C.P.C. on Nov. 7. 1981. Notice of that application was issued to the obstructors. The obstructors filed a reply in which they pleaded that the application of Ratanchand decree-holder under Order XXI, Rule 97, C.P.C. was barred by limitation. Some other objections were also raised. The Munsif Bikaner after hearing the arguments came to the conclusion that the petition of Ratanchand under Order XXI, Rule 97, C.P.C. in execution case No. 26 of 1979 was barred by limitation and accordingly dismissed the same on May 22, 1982. The decree-holder did not file any appeal against this judgment of Munsif Bikaner dismissing his application under Order XXI, Rule 97, C.P.C. However, the decree-holder got fresh warrant of possession issued for possession of the disputed property in Execution case No. 68 of 1979. On this warrant of possession, the Sales Ameen made a report on Sept. 3, 1982 that the petitioners again obstructed the taking of possession and refused to deliver possession of the disputed property. The non-petitioner-decree-holders alleged that the petitioners were in possession of the property on behalf of judgment-debtor Shankarlal Bhanwarlal and they prayed that the petitioners be dispossessed from the disputed property. In reply to this second application under Order XXI, Rule 97, C.P.C., the petitioners referred to the dismissal of the previous application under Order XXI, Rule 97, C.P.C. by the Munsif, Bikaner on May 22, 1982on the ground that the same was barred by limitation and that judgment of the Munsif had become final. The Munsif came to the conclusion that the second application under Order 21, Rule 97, C.P.C. would not be entertained as the first application under the said Order had been dismissed on May 22, 1982, as a result of the amended Rule 108 of Order 21 because the previous judgment dt. May 22. 1982 had the force of a decree. Aggrieved by this before of the Munsif Bikaner dt. Jan. 31, 1983, Ratanchand decree-holder filed an appeal before the District Judge, Bikaner who, by his order dt. Nov. 2, 1985 allowed the appeal of the decree-holder and set aside the judgment of Munsif Bikaner dt. Jan. 31, 1983. It is against this that the obstructionists Chhotulal and Smt. Sadra have filed the revision petition No. 485 of 1985.

Facts giving rise to revision No. 352 of 1983 are that Bhanwarlal had obtained a decree against Ramkishan and he filed execution No. 33 of 1979 for execution of that decree for ejectment of the premises in respect of which the decree was passed. In that execution a warrant of possession was issued but Satyanarain petitioner obstructed the delivery of the possession. Thereupon Bhanwarlal non-petitioner 1 filed an application under Order 21, Rule 97. C.P.C. which was dismissed, on Jan. 12, 1982. The decree-holder sought a fresh warrant of possession and when the Sales Ameen went to execute that warrant, the petitioner again obstructed the delivery of possession whereupon the decree-holder filed a second application under Order XXI, Rule 97, C.P.C. which was registered as civil miscellaneous petition No. 2 of 1981 by the Munsif. In that second application, the petitioner raised an objection that the dismissal of the previous application filed by the decree-holder-operated as res judicata and the second application under Order XXI, Rule 97, C.P.C. was not maintainable. The Munsif, Bikaner upheld the objection of the petitioner and dismissed the application of Bhanwarlal under Order XXI, Rule 97. C.P.C. on the above ground. Bhanwarlal decree-holder filed an appeal which was registered asappcal No. 31 of 1982 in the court of the Civil Judge. Bikaner. As in Ratanchand''s case the Civil Judge disagreed with the views of the Munsif Bikaner and held that the second application under Order XXI. Rule 97, C.P.C. was maintainable. He, therefore, by his order dt. May 19, 1983 allowed the appall of Bhanwar Lal decree-holder, set aside the judgment of the Munsif Bikaner and remanded the case to the Munsif to decide the subsequent application under Order XXI, Rule 97, C.P.C. on its merits. It is against this order of the Civil Judge Bikaner that the obstructionist Satyanarain has filed civil revision No. 352 of 1983.

I have heard the learned counsel for the parties appearing in both these revisions. On behalf of the decree-holders non-petitioners in both the revisions, it was urged that the matter stands concluded by a single Bench decision of this Court in Narain v Smt. Katabai reported in 1985 Raj LW 140 I AIR 1986 Raj 521, wherein it was held by his Lordships S. S. Byas J.. that in case of successive obstructions, it is the day of the succeeding obstruction which would alone be taken into consideration and not the date and day of the earlier obstruction. It was held that law does not compel a decree-holder to complain against the resistance or obstruction as soon as it is made. He can ignore the resistance or obstruction and may in his wisdom apply for a fresh warrant of possession. It is of course open to him to move the court under Order XXI. Rule 97. C.P.C. and the choice lies with him. If he obtained a fresh right of possession and is again obstructed by the same person, he can move an application under Order XXI, Rule 97, C.P.C.. for the removal of such obstruction caused on the second or successive occasion and his application would not be held to be barred by lime if it is filed within 30 days of the second or successive resistance which is complained of. Suffice it to state that decision in Narain''s ease (supra) related to a period when the Civil P.C. was not amended by the amending Act No. 104 of 1976 as is apparent from the narration of facts mentioned i n para 2 of the reported judgment. In Narain''s case the Munsif had issued the warrant for the delivery of possession and a bailiff went on the spot for delivery of possession on Feb. 10, 1974. The first resistance was on Feb. 10, 1974. For the second time, the bailiff went on the spot on July 12, 1975 and there was resistance. It was on Aug. 11, 1975 that the decree-holder complained of the second obstruction. It would thus appear that all the events in Narain''s case took place before the provisions contained in Rules 97 and 103 of Order XXI of the Civil P.C. were in an unamended state. The decision in Narain''s case would not, therefore, help us in deciding a case in which the successive obstructions have taken place after the above provisions had been amended by the Amending Act No. 104 of 1976 and, therefore, decision in Narain''s case does not conclude the matter. In Narain''s case, there was no dismissal of an earlier application under Order 21, Rule 97, C.P.C. as well.

It may be stated that after carefully considering the recommendations made by the Law Commission in its 27th, 14th, 54th and 55th reports, the Central Government decided to amend the Civil P.C. 1908 keeping in view, among others, the following basic considerations, namely : --

(i) that a litigant should get fair trial in accordance with the accepted principles of natural justice;

(ii) that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed;

(iii) that the procedure should not be complicated and should to the utmost extend possible ensure fair deal to the poor sections of the community who do not have the means to engage a pleader to defend their case.

One of the important changes made as a result of amendment made in the Civil P.C. (Amendment Act No. 104 of 1976) was to make the doctrine of res judicata more effective. Under the existing provisions, the principles behind the doctrine of res judicata was that issue heard and decided between the parties to a suit should not be allowed to be re-agitated by the parties or any persons claiming through them in subsequent litigation. The condition precedent for applying the bar of res judicata against the trial of any suit or issue was, however that the previous court must have been competent to try the subsequent suit or the suit in which the issue was subsequently raised. The existence of this condition to a certain extent detracted from the finality of judgments of courts of limited jurisdiction and that gave rise to multiplicity of proceedings. To remove this multiplicity of proceeding, various changes were made in the code by the Amending Act of 1976 and the doctrine of res judicata was extended to independent proceedings and also to execution proceedings. So far as the changes ere made in relation to the matter in consideration before me, it may be observed hat prior to the amendment made in the year 1976, the holder of a decree for possession, in case an obstruction was made in-delivery of possession by third parties, had three remedies. He could proceed under Order XXI Rule 97 R.P.C. He could apply again in execution of the decree under Rules 35 and 36 of Order XXI or he could institute a regular suit or possession. However, the amendment made in 1976 has brought about a substantial and material change in the provisions.

Order XXI Rule 97(2) provides that where an application is made in Sub-rule (1) of the said Rule, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rules 98 to 103 of Order XXI were also substituted. The Amended Rule 98 provides that upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination and subject to the provisions of Sub-rule (2), (a) make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application or (b) pass such other order as in the circumstances of the case, it may deem lit. Rule 101 of Order XXI affered substantial changes. The amended Order 101 provides like amended Sub-rule (2) or Rule 58 of Order XXI that all questions (including questions relating to right, title or interest in be property) arising between the parties to a proceedings on application under Rule 97 or their representatives and relating 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 lime being in force, be deemed to have jurisdiction to decide such questions. In the amended Rule 101 of Order XXI of the Code, the expression "all questions (including questions relating to right, title or interest in the property)" and the expression and not by a separate suit" are very-pertinent. In my view, the expression "all questions" includes within its ambit a plea raised by an alleged obstructionist that the application under Order XXI Rule 97 C.P.C. is barred by limitation. When such an application is held by the court to be barred by limitation, its adjudication is of a question involved and arising between the parties to a proceeding on an application under Order XXI Rule 97 C.P.C. The decree-holder having taken recourse against an obstructionist by moving an application under Rule 97 of Order 21, has to get it adjudicated under Rule 101 of Order 2l and he cannot then file a separate suit, for determination of any question which he has himself chosen to raise by moving an application under Order 21 Rule 97. Then it is pertinent to note that by Rule 103 which has also been substituted for the old rule, it has been expressly and unambiguously provided that where any application has been adjudicated upon under Rule 98, the order made thereon shall have the same force and be subjected to the same conditions as to an appeal or otherwise as if it were a decree. Since the adjudication under Rule 98 was given the force of a decree, it also became necessary to insert some new rules in Order XXI which are Rules 104 to 106. Rule 104 was inserted to protect a pending suit on the date of commencement of proceedings under Order XXI Rule 97 C.P.C. Rules 105 and 106 were meant to introduce provisions for dismissing the application under Order XXI Rule 97 C.P.C. in default and passing ex parte orders for restoring the application and for set ting aside ex parte orders. They were necessary because prior to the amendment, the remedy in such events was by a suit which was taken away by the express provisions contained in Rule 101 of Order XXI.

As already observed by me that even dismissal of an application under Order XXI Rule 97C.P.C. is adjudication of an application under Order XXI Rule 97 C.P.C. on account of the provisions contained in Rules 98 and 101 of Order XXI, the decision in an earlier application will operate as res judicata and will bar the entertaining of a subsequent application under Order XXI Rule 97 C.P.C. by the concerned court.

I may also deal with some more decisions referred to by learned counsel appearing for the decree-holders in both these revisions. The first decision relied upon by them apart from the single Bench decision in Narayan and Another Vs. Smt. Kalan Bai, referred to above, is in the case of Parameswaran and Others Vs. Kumara Pillai Raghavan Pillai, Regarding this decision, suffice it to state that his Lordships of the Kerala High Court even did not touch the amended provisions of the Civil P.C. and, therefore, this decision cannot be said to be an authority about the provisions as contained after their amendment by Amending Act No. 104 of 1976. The decision in Ganpat Singh v. Kailash Shanker reported in (1986) 2 WLN 343 is not at all an authority for interpreting the provisions of Order XXI Rule 97 to Order XXI Rule 103 of the Code. As to the decision in Ganga Ram Vs. Devi Singh and Others, 1 wonder, why it has been relied upon. At best this decision is an authority for the pro position that for the decree-holder, the provision of Order XXI Rule 97 C.P.C. is only a permissible provision and not a mandatory or imperative provision. It may be that a decree holder while faced with an obstruction may instead of applying under Order XXI Rule 97 C.P.C., take recourse to the remedy of filing a suit for declaration and possession. But having taken recourse to the remedy provided under Order XXI Rule 97 C.P.C. and having failed in that, he cannot turn round and urge that he is not bound by the adverse decision.

Before concluding I may state that the decision of the Madhya Pradesh High Court in Dattatray v. Mangal reported in AIR 1983 Madh Pra 82 supports the view which I have taken and I entirely agree with the answer given by the Division Bench or the Madhya Pradesh High Court in the reference made by the single Judge to them.

The result, therefore, is that the order of the Civil Judge, Bikaner, dt. Nov. 2, 1985 in appeal No. 72 of 1984 of his court out of which Revision No. 485 of 1985 has arisen and the view taken by the Civil Judge, Bikaner in his order dt. May 19, 1983 in appeal No. 31 of 1982 of his Court out of which Civil Revision No. 352 of 1983 has arisen, are erroneous and the view taken by the Munsiff, Bikaner in both these matters is correct.

I, therefore, allow Civil Revisions Nos. 485 of 1985 and 352 of 1983 and set aside the order of the Civil Judge, Bikaner, dt. Nov. 2, 1985 impugned in Civil Revision No. 485 of 1985 and the order of the Civil Judge, Bikaner dt. May 19, 1983 impugned in Civil Revision No. 352 of 1983 and restore the order of the Munsif Bikaner dt. Jan. 31, 1983 and Feb. 20, 1982 passed respectively in the aforesaid two matters, In the circumstances of the case, I, therefore, leave the parties in both these revisions to bear their own costs.