Janki Mohan and Another vs Dr. S. Samaddar and Others

This Judgment has been overruled by : Kancherla Lakshminarayana Vs. Mattaparthi Syamala and Others, AIR 2008 SC 2069 : (2008) 2 CTC 774 : (2008) 3 SCALE 641 : (2008) 14 SCC 258 : (2008) 1 UJ 570 : (2008) AIRSCW 2800

In this case the petitioners have obtained a money decree against the opposite parties NOS. 2 to 4 in Money Suit No. 38 of 1950 and in execution of that decree the petitioners purchased the disputed holding, namely, holding No. 9/10 of Mahalla Gudri Bazar (Patna City) on the 16th of April, 1953. The case of the petitioners is that they took delivery of possession on the 4th of December, 1957. It is alleged that opposite party no. 1 has also obtained a money decree against Opposite parties Nos. 2 to 4, and in execution of that decree opposite party No. 1 obtained an order of attachment of the holding, and on the 11th of November, 1957, opposite party No. 1 purchased the holding in the execution proceeding. The sale in favour of opposite party No. 1 was confirmed by the executing Court on the 11th of December, 1957. On the 26th of November, 1957, the petitioners made an application to the executing Court praying that the property should be released from attachment under the provisions of Order 21, Rule 58, Civil procedure Code. The Munsif dismissed the application on the ground that it was not maintainable as the sale had already taken place. The order of the Munsif is dated the 7th of December, 1957.

On the 24th of March, 1958, the executing Court ordered that there should be a writ of delivery of possession in favour of opposite party No. 1. The Court peon reported, however, that possession could not be delivered as the petitioners resisted the execution of the writ. On the 29th of April 1958, opposite party No. 1 made an application to the, executing Court stating that there should be a fresh writ of delivery of possession, and that the report of the peon that there was obstruction on the part of the petitioners was a collusive report. On the 17th of September, 1958, there was a fresh application on behalf of opposite party No. 1 to the executing Court for grant of a writ of delivery of possession.

Thereafter on the 20th of September, 1958, the petitioners made an application to the executing Court praying that there should be no writ for delivery of possession given to the opposite party No. 1. After hearing the parties concerned, the executing court has ordered that the application of the petitioners should be rejected. The reason given by the executing court for rejecting the application is that the order of the executing Court dated the 7th of December, 1957, rejecting the application of the petitioners under Order 21, Rule 58, Civil Procedure Code, operated as a bar to the present claim because of the provisions of Order 21, Rule 63, Civil Procedure Code.

The petitioners have obtained a rule from the High Court against the order of the learned Munsif dated the 29th of January, 1959, rejecting their application u/s 151 of the Code of Civil procedure.

On behalf of the petitioners the submission made by learned Counsel is that the reasoning of the learned Munsif for rejecting the application of the petitioners is erroneous. It was pointed out by learned Counsel that the executing Court rejected the claim of the petitioners under Order 21, Rule 58, Civil Procedure Code, on the ground that it was not maintainable as the sale had taken place. It was, therefore, argued on behalf of the petitioners that the principle laid down by this High Court in Manir Momin and Another Vs. Kameshwar Singh and Others, applies to this case and that the provisions of Order 21, Rule 63, Civil Procedure Code, have no application to this case, and the claim of the petitioners is not barred under Order 21, Rule 63 of the Civil Procedure Code. In our opinion, the argument on behalf of the petitioners is well founded and must be accepted as correct.

In an earlier case in Mt. Puhupdei Kuar Vs. Ramcharitar Barhi and Others, a Division Bench of this High Court has expressed the view that after the sale is held the attachment of the property is ipso facto determined, and the executing Court has no longer any jurisdiction to try the claim case under Order 21, Rule 58 of the Civil Procedure Code. A similar view was ex-pressed by the Calcutta High Court in Sasthi Charan Biswas Banik and Others Vs. Gopal Chandra Saha and Others, . It was hold in that case also that after the sale has actually taken place the executing Court has no jurisdiction to entertain a claim or objection filed under Order 21, Rule 58, Civil Procedure Code, although the application may have been made prior to the sale, and although the sale may not yet have been confirmed Consequently, where an application under Order 21, Rule 58 is filed before the sale, but it is dismissed for default after the sale, and a suit is thereafter brought by the claimant, Article 11 of the Limitation Act has no application to the Suit

The material facts of the present case are almost similar to the case of Sasthi Charan Biswas Banik and Others Vs. Gopal Chandra Saha and Others, , and in view of the principle laid down in that case and also in Mt. Puhupdei Kuar Vs. Ramcharitar Barhi and Others, it is manifest that the application of the petitioners under Order 21, Rule 58 of the CPC filed on the 26th of November, 1957, was not maintainable and the executing Court had no jurisdiction to entertain or decide that claim. If that is the correct legal position, it follows that the provisions of Order 21, Rule 63 of the CPC cannot be applied to the present case in view of the principle laid down by the Division Bench in Manir Momin and Another Vs. Kameshwar Singh and Others, , where all the previous decisions have been reviewed.

But though the reasoning of the learned Munsif in this case is erroneous, the actual order of the learned Munsif dismissing the application of the petitioners u/s 151 of the CPC is correct. It appears that the petitioners at first got the application registered as one under Order 21, Rule 58. But later on they changed their mind and prayed that their application may be treated as one under Order 21, Rule 97 of the Civil procedure Code. Later on the petitioners again changed their mind and prayed that the application may be treated as one u/s 151 of the Civil Procedure Code.

In our opinion the application of the petitioners is premature because there is no application under Order 21, Rule 97 of the CPC on behalf of the decree holder alleging that there was resistance or obstruction made by the third party in obtaining possession of the property. Unless and until the decree-holder makes such an allegation under Order 21, Rule 97 of the CPC there is no locus standi on the part of the petitioners to move the executing Court for adjudication of their claim of title or possession over the disputed property. There are specific provisions in Order 21, Rule 97, Civil Procedure Code, providing in what manner claims of third parties with regard to possession of immovable property are to be adjudicated by the executing Court. In view of these specific provisions it is not open to the petitioners to invoke the inherent jurisdiction of the Court u/s 151 of the civil Procedure Code. It is, therefore, obvious that the application of the petitioners purporting to be made u/s 151 of the CPC is entirely premature, and on this ground alone we think that the application of the petitioners has been rightly rejected by the executing Court.

It appears that the Court has already made an order on the 17th of September, 1958, that there should be a writ of delivery of possession in favour of opposite party No. 1, and there should be service of the writ through the Nazir of the Court. It is open to the opposite party No. 1 to get this order executed, and if he is resisted in taking possession of the property by the petitioners it is open to the opposite party No. 1 to make an application to the executing Court under Order 21, Rule 97, Civil Procedure Code. If and when such an application is made under this rule, it is open to the executing Court to adjudicate the claims of the parties in accordance with the provisions of that rule.

For these reasons we hold that there is no merit in this Civil Revision application, which is accordingly dismissed. There will be no order as to costs.