Jandel Singh vs Ramlali Sharma and Others

Rohit Arya, J.—This appeal under Section 100 CPC at the instance of objector/appellant is directed against the judgment and decree dated 8/12/2006 in civil appeal No. 37A/2006 confirming the order dated 12/1/2006 in execution case No. 269A/85-02. The Executing Court has rejected the application filed under Order XXI Rule 97 read with Section 151 CPC.

Facts necessary for disposal of this appeal are to the effect that the objector/appellant filed objection under Order XXI Rule 97 CPC in execution case No. 269/85-02 decided on 12/1/2006 pending for execution of the decree dated 26/3/1999 passed in civil suit No. 269A/1989. It is submitted that the decree-holder Ramlali Sharma wd/o Late Shri Balkrishna had obtained an ex parte decree against Chandrakishore S/o. Aghurelal. The objector was in possession of the suit premises being tenant of the actual owner Vishwanath S/o. Banshidhar and has all along been paying rent since 1998, therefore, the ex parte decree passed against one Chandrakishore is not binding upon him. It is also submitted that he acquired knowledge of the decree only on 29/3/2004 when the decree-holder alongwith the employees of the Court reached the suit premises for possession pursuant to the ex parte decree. It is also submitted that, as a matter of fact, the suit house was originally of the ownership and possession of one Jashodabai. She had inducted Chandrakishore as tenant of the suit premises in the year 1980. He continued to occupy the premises upto 1982-83. Jashodabai used to realize the rent from Chandrakishore. After death of Jashodabai, rent was being realized by her nephew Vishwanath. Chandrakishore vacated the suit premises and handed over the possession to Vishwanath. Thereafter, objector was inducted as tenant by Vishwanath. Chandrakishore though party to the suit in question, but since had no interest to the suit premises, did not attend the hearing and left it to Vishwanath. Under such circumstances, ex parte decree was granted. It is, therefore, submitted that decree, so obtained, is having no binding effect upon the objector.

Besides, it is also submitted that another suit was filed by the decree-holder bearing civil suit No. 95A/1991 on the premise that Chandrakishore has sublet the suit premises to Kaptan Singh and Babu Singh and, therefore, eviction was sought on the ground of subletting.

With the aforesaid submissions, application under Order XXI Rule 97 CPC was filed.

Decree-holder filed reply to the objection under Order XXI Rule 97 CPC inter alia contending that Chandrakishore was the original tenant of Late Jashodabai and thereafter of the decree-holder. The suit was decreed against Chandrakishore confirmed by the first appellate court. On the strength of alleged rent receipts the objector cannot claim any right on the suit property.

Before we advert to further discussion, it is apposite to restate the law as regards scope of Order XXI Rule 97 CPC in the context of execution proceedings. In this regard it is considered apposite to refer to the judgment of Hon''ble Supreme Court in the case of Shreenath and Another Vs. Rajesh and Others, (1998) 3 AD 624 : AIR 1998 SC 1827 : (1998) 3 JT 244 : (1998) 2 SCALE 725 : (1998) 4 SCC 543 : (1998) 2 SCR 709 : (1998) AIRSCW 1619 : (1998) 4 Supreme 155 . Factual matrix in the said case are that a suit for redemption of mortgage filed by A against B was decreed. Decree directed delivery of vacant possession of the mortgaged property to A. Objector C was not party to the suit, but was in possession of the suit shop as tenant from the year 1952; much before execution of the mortgage, which was in the year 1962. The objector C had resisted the execution of decree and for protection of his possession in the suit shop. He filed an application under Order XXI Rule 97 CPC with the contention that the decree holder A cannot be delivered possession and only can be given symbolic possession. He further contended that he cannot be dispossessed in terms of the decree as neither was he party to the said suit nor did he derive any right and title through the judgment debtor. He claimed separate, independent legal right not affected either by the mortgage or redemption of mortgage. The aforesaid objection filed under Order XXI Rule 97 CPC to the decree in execution was rejected in the light of the Full Bench decision of this Court in Smt. Usha Jain and Others Vs. Manmohan Bajaj and Others, AIR 1980 MP 146 : (1982) ILR (MP) 837 : (1980) JLJ 678 : (1980) MPLJ 623 . The Full Bench ruled as under:

"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/auction-purchaser under O.21, Rule 97. This rule is merely permissive and not mandatory so that the decree-holder/auction- purchaser not resort to it against his will and may even apply for fresh warrant under O. 21, R. 35, C.P.C. 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/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. 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.

No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or rules 95 and 96 of Order, 21, C.P.C. when the decree-holder or the auction-purchase 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 but that provision is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser apply instead for a fresh warrant of possession. an enquiry at the instance of a third party in possession is contemplated only under O.21.R 100 after he was dispossessed and not before it.

The omission by the executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated brief to his dispossession his only remedy then being under order 21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession."

The Hon''ble Apex Court in the context of aforesaid facts examined the judgment of Full Bench. The Apex Court has overruled the aforesaid judgment and while interpreting Order XXI Rule 97 read with Rule 101 CPC has held that words "any person" used in Order XXI Rule 97 CPC include all persons resisting delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. Therefore, at the instance of any person under Order XXI Rule 97 CPC the decree for possession of immovable property can be resisted and questions as enumerated under Rule 101 are required to be determined by the Court dealing with such an application and not by the separate suit. This judgment has also been followed in subsequent judgments in the case of Har Vilas v. Mahendra Nath and others, (2011) 15 SCC 377.

The dictum laid down in Shreenath and another (supra) wherein while giving interpretation to words "any person", as contained in Order XXI Rule 97 CPC, the Apex Court has held that all persons resisting possession and claiming right to the property of their own including stranger can maintain the objection and the said judgment is in the context of objection under Order XXI Rule 97 CPC by tenant in the suit shop resisting delivery of possession to a decree-holder in execution of a decree of redemption of mortgage on the premise that tenant was not party to the suit and tenancy had started about ten years before the execution of mortgage, therefore, the law declared by the Hon''ble Supreme Court as regards inclusive meaning to words "any person" used in Order XXI Rule 97 CPC is required to be applied to bonafide objections to be raised under Order XXI Rule 97 CPC by any person resisting delivery of possession to the decree-holder and to relieve him from filing a fresh suit seeking protection of possession. The law so declared by the Apex Court cannot be pressed into service to rescue such objectors who in collusion and connivance with judgment-debtors raise the objection resisting delivery of possession to in fact and in effect protect the judgment-debtors and act as a shield against execution of decree for delivery of possession to the decree-holder.

Now adverting to the contentions advanced by the objector before the courts below to the effect that the objector/appellant was inducted in the suit premises by Vishwanath and Vishwanath used to receive the rent and issue rent receipts. Rent receipts Ex. P/13 to Ex. P/15 are brought on record. Therefore, the claim of being in possession over the suit premises is on the strength of tenancy created by Vishwanath in favour of objector/appellant. However, no evidence is brought on record that the suit premises at any point of time was in possession of Vishwanath, though objector in his deposition has admitted that earlier the suit premises was in possession of Chandrakishore and thereafter Kaptan Singh and after that the appellant was inducted in the suit premises. One relevant fact needs mention that the objector/appellant is the son-in-law of Kaptan Singh. Besides, to prove the fact that Vishwanath was in possession of the suit premises, he has inducted the appellant in possession of the suit premises, he used to receive rent from appellant, he had issued rent receipts Ex. P/13 to P/15, no evidence is led much less that of Vishwanath. Under such circumstances, Vishwanath through whom the objector/appellant claims to be in possession since was not examined, the claim of objector to hold the suit premises or has any right over the same was found to be without any basis by courts below. That apart, it has also come on record that Vishwanath and Kaptan Singh both had knowledge of the aforesaid decree passed, but at no point of time Vishwanath agitated the ex parte decree in appeal or otherwise. Vishwanath had also filed an application under Order I Rule 10 CPC to be made a party, but the same was rejected by the trial court on 31/7/1996. Thereafter, no proceeding whatsoever was undertaken by Vishwanath. Therefore, he had knowledge of this suit: para 12 of the trial court''s order dated 12/1/2006 is referred to.

Learned counsel for the appellant has cited three judgments in support of his contentions viz. (i) Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 : (1997) 1 JT 641 : (1997) 1 SCALE 437 : (1997) 3 SCC 694 : (1997) 1 SCR 463 - in this judgment the Hon''ble Supreme Court has laid down that the person in possession of the suit premises can file an application under Order XXI Rule 97 CPC to obstruct the decree and need not to file application under Order XXI Rule 97 CPC after he is dispossessed, (ii) Shreenath and Another Vs. Rajesh and Others, (1998) 3 AD 624 : AIR 1998 SC 1827 : (1998) 3 JT 244 : (1998) 2 SCALE 725 : (1998) 4 SCC 543 : (1998) 2 SCR 709 : (1998) AIRSCW 1619 : (1998) 4 Supreme 155 - in this case tenants in possession of the property had obstructed the decree-holder from taking possession by filing application under Order XXI Rule 97 CPC on the ground that they were not party to the suit and had independent right over the property not affected by either mortgage or redemption thereof. The Court in this case also held that such an objection was maintainable and not affected by the provisions of amended Rule 99 and gives an extensive meaning to the words ''any person'' used in Rule 97 of CPC and (iii) H. Seshadri Vs. K.R. Natarajan and Another, AIR 2003 SC 3524 : (2003) 4 JT 19 : (2003) 3 SCALE 772 : (2003) 10 SCC 449 : (2003) 3 SCR 505 - in this case the trial court had recorded finding that obstructionist was a tenant of the suit premises and, therefore, held entitled for maintaining objection to the execution of decree by filing application under Order XXI Rule 97 CPC. This decree was set aside by the High Court without recording finding to the effect that the appellant was sub-tenant or trespasser or claimed his right over the suit premises through the judgment-debtor and, therefore, the Supreme Court had reversed the judgment of the High Court setting aside the order passed by the High Court and restored that of the trial court. All the three cases are distinguishable on facts and are of no help to the appellant.

Therefore, in view of law as laid down by the Hon''ble Supreme Court and the facts and circumstances of the case, in the opinion of this Court, courts below did not commit any illegality or jurisdictional error while dismissing the application under Order XXI Rule 97 CPC. Accordingly, the second appeal sans merits and is hereby dismissed.