K. N. Varadaraja Iyer vs C. Kunhippa and Co and Another

P.C. Balakrishna Menon, J.—This second appeal by the first defendant was admitted on the following question of law formulated at page 4 of the memorandum of second appeal:

Whether O, S, No. 258/1978 on the file of the Munsiff''s Court, Palghat is barred by res judicata by reason of the order in E. A. No''

383/ 1969 on the file of that court and C. R. P. No. 684/ 1975 on the file of this Hon''ble Court.

After hearing the case at some length on 13-2-1987, I had doubts about the maintainability of the suit, (instituted after the C. P.. C. Amendment Act 104/1976 had come into force) under. Order XXI Rule 103 C. P. C. as it stood prior to the amendment. A further question relating to the rights of a pendente lite lessee of a commercial site u/s 106 of the Kerala Land Reforms Act was also raised during the course of arguments Counsel for the Respondents was granted time till 16-2-1987 to answer these questions which, according to me, are substantial questions of law arising in the second appeal.

I have allowed these additional questions to be raised in the second appeal as I felt that the question relating to the maintainability of the suit concerns the jurisdiction of the Court to entertain the suit. The fact of the case are not in dispute. The 1st defendant filed O. S. 137/1961 on the file of the Munsiff''s Court, Palghat against the 2nd defendant for recovery, of possession of the suit property, a commercial site alleged to have been trespassed upon by the 2nd defendant. The suit was decreed on 30-10-1963. The 1st defendant thereafter filed E. P. 82/1968 for delivery of the property in execution of the decree. But at the time when delivery was sought to be effected, the present plaintiff offered resistance on 22-9-1968 claiming tenancy under the 2nd defendant-judgment debtor. The 1st defendant thereupon filed E. A. 383/1969 on 20-3-1969 under Order XXI Rule 97 CVC for delivery of the property after removal of obstruction by the plaintiff. Ext. A3 is a certified copy of E. A. 383 of 1969. The present plaintiff opposed the application setting up a leasehold title under the 2nd defendant and claiming fixity of tenure under sec. 106 of the K. L. R, Act as it then stood. By Ext. Al order dated 13-2-1975 the execution court ordered removal of obstruction of the plaintiff and delivery of the property to the 1st defendant. The execution court found that the lease set up by the present plaintiff was one obtained pending suit and was hit by the rule of is pendent. Ext. A1 order of the execution court passed under Order XXI Rule 98 CPC as it then stood was confirmed in revision by this Court in C. R. P. No. 684 of 1975. Ext. XI dated 23-9-1977 is a certified copy of the order in the C. R- P. confirming Ext. Al order of the execution court directing delivery of the property after removal of obstruction by the present plaintiff. It is long afterwards on 20-7-1978 that the present suit is filed under Order XXI Rule 103 CP. C (as it stood prior to the amendment by Act 104/1976) to set as-de the summary order Ext. Al and for an injunction to restrain the 1st defendant from executing the decree and taking delivery of the property in pursuance to the said order. The trial court decreed the suit on the ground that Ext. A3 application under Order XXI Rule 97 was filed beyond the period of 30 days from the date of obstruction and was hence barred under Article 129 of the Limitation Act, 1963. This decision of the trial court was confirmed in appeal by the lower appellate court. It is against this that the 1st defendant-decree holder in O. S. 137/1961 has come up in second appeal.

An order under Rule 98 is summary and is subject to The results of a suit under Rule 103 of Order XXI CPC as it stood prior to the CPC Amendment Act, 104/1976. A transferee pendente lite is not entitled to obstruct or resist execution of the decree is clear from Rule 102 of Order XXI CPC. Rule 101 of Order XXI substituted by the CPC Amendment Act 1976 requires all questions, including questions relating to right, title and interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99, and relevant to the adjudicator of the application, to be determined by the execution court dealing with the application and not by a separate suit. An order made under Rule 98 or Rule 100 is to have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree (vide the amended rule 103 of Order XXI CPC). Thus, after the amendment of the CPC by Act 104/1976 that came into force on 1-2-1977, there is no provision for a separate suit to set aside an order passed by the execution, court under Order XXI rule 98 CPC. All questions including questions relating to title are to be determined by the execution court itself and the order passed on such determination has got the force of a decree for the purpose of appeal and enforcement.

Sub-sec.(1) of sec.97 of the CPC Amendment Act, 1976 repeals any amendment made or any provision inserted in the principal Act by a State legislature or a High Court except in,So far as such amendment of provision is consistent with the amended provisions of the C.P.C. Sub-Sec. (2) of sec.97 contains the saving provision in respect of matters enumerated in the different clauses under the sub-section. The relevant clause applicable to the present case is clause (q). Sub-sec(2) read with clause (q) is extracted below: force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897):-

XXX XXX XXX

(q) the provisions of Rule 31, 32, 48A,57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, substituted or inserted by Section 72 of this Act shall not apply to or affect-

(i) any attachment subsisting immediately before the commencement of the said Section 72, or

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force:"

Sub-sec. (3) of sec. 97 expressly enacts that save as otherwise provided in sub-sec. (2) the provisions of the principal Art, as amended by Act 104/1976, shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amendment Act, and all such proceedings instituted or filed after such commencement shall also be governed by the provisions of the amended Act Notwithstanding the fact that the right or cause of action for such suitor proceeding had been acquired or had arisen before the commencement of the Amendment Act. It is clear from clause (q) of sub - sec. (2) read with sub - sec. (3) of sec. 97 of the Amendment Act 104 of 1976 that the present suit instituted on 20-7-1978 cannot be entertained under rule 103 of Order XX as it stood prior to the amendment because the rule itself had been substituted taking away the right of suit and empowering the execution court to go into all questions between the parties including questions relating to title and treating orders of the execution court passed on applications under Rule 97 of Rule 99 as if those orders were decrees for the purposes of appeal or otherwise. A division Bench of this Court in Narayani Amma v. Kunhappa Kitri/p (1982 KLT 714) stated at page 717:-

(7).............. For one thing, the operation of the provisions of sub-s, (2) of S. 97 is restricted to clauses (a) to (zb) enumerated under that sub-section. The 2nd defendant did not, and could not also, plead that his case would fall within any one of the categories mentioned in clauses (a) to (zb) of sub-section (2) of S,97. Moreover, S.6 of the General Clauses Act would have no application where a contrary intention has been expressed.

It is further stated at Page 718;

S. 97 (3) of the Amendment Act has in unequivocal terms stated that save as otherwise provided in sub section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding. appeal or application is instituted or filed, had been acquired or had accrued before such commencement. The 2nd defendant is not therefore entitled to succeed on this plea based on the provisions contained in sub-sec. (2)of S. 97 of the Act and S. 6 of the General Clauses Act.

The same principle is stated in the decisions in Sainuddin v. Pokkunhi (1977 KLT 516), Madhavan Nair v. Kuttimalu (1982 KLT 627) and in Yogiraj v. Ravindranath (1983 KLT 499). It is therefore clear that the suit instituted after the commencement of the C..P. C. Amendment Act, 104/1976 is not maintainable under rule 103 of Order XXI as it stood prior to the amendment

There is no dispute that the plaintiff is a pendente lite lessee of a commercial site and for the reason only of the short delay in filing an application under Order XXI Rule 97 CPC, the 1st defendant-decreeholder in O. S.

The general words "notwithstanding any law" should not be taken to abrogate every rule of law which is intended to serve different purposes and which have no similarity and affinity to laws such as those introduced for agrarian reforms as in the case of the provisions of the Kerala Land Reforms Act. It would be prudent to construe the genera! words as intended to achieve the objects and purposes sought to be ensured by the Kerala Lard Reforms Act. In other words the non-obstante clause must not be so read as to abrogate every conceivable principle of law embodied in any statute whatever and for any reason whatever. The approach I think must be to find out whether the law which is said to. be abrogated by such non-obstante clause occupied the same field or dealt with the same, object Laws which fall under that category must certainly be abrogated by the non-obstante clause. This principle should not however be extended to other laws enacted on the basis of public policy meant for protection of interests and for finality of pronouncement-of courts which have nothing to do with the objects and the purposes sought, to be achieved by the statute.

137/1961 is deprived of his right to property by the decree passed by the courts. below. A pendente lite transferee is not entitled to successfully obstructor resist delivery is clear from rule 102 of Order XXI. This court in (he decision reported in Idicula v. Padmanabhan Nair (1967 KLT 1060) has clearly laid down that a pendente lite lessee of a commercial site is no, entitled to the benefits of section 106 of the Kerala Land Reforms Act. This, decision was affirmed by a Full Bench of this Court in the decision reported in Mohamed Mytheen v. Sreedharan (1976 KLT 919). The Full Bench has held that neither the: non-obstante clause nor Sec. 127 of the K. L. R. Act would override the rule of lis pendens unless it is specifically excluded as in the case of Ss. 7, 7A and 7D of the Act. Govindan Nair C. J. Speaking on behalf of the Full Bench

5 observed at page 924:-

A Full Bench of this Court in the decision reported in Chackov. Govinda Pillai (1957 KLT 742) has land down that an examination of the rival titles of the contending parties would really fall within the scope of a suit under rule 103 of Order XXI (as it stood prior to the amendment in 1976). The decree passed by the courts below on the ground only of the delay in presenting an application under Order XXI Rule 97 CPC is for that reason also clearly unsustainable in law..It is not obligatory for a decree holder resisted at the stage of execution to file an application under Order XXI rule 97 CPC to remove, the resistance or obstruction of a stranger obstructor. Order XXI rule 97 is only an enabling provision. A Division Bench of the Gujarat High Court in Maneklal Nathalal Jingar Vs. Ochhavlal Chhaganlal and Another, stated at Page 52:-

(1) Making of an application under Order 21, Rule 97 complaining about the resistance or obstruction to delivery of possession is permissive and an enabling provision for the decree-holder and he is not bound to make such an application. No penalty of any nature can be imposed upon the litigant if he fails to avail himself of a merely permissive or enabling remedy.

In the present case the decreeholder did make an application under Order XXI rule 97 and he obtained an order Ext. Al in his favour. The courts below, without even adverting to the scope of rules 97 and 103 of Order XXI CPC (as it stood prior to the amendment in 1976) have committed a grave error of law in granting a decree in favour of the obstructor setting aside Ext.Al order and injuncting the decree-holder-1st defendant from executing the decree. Now that I have held that no suit under rule 103 of Order XXI CPC as it stood prior to the amendment in 1976 would lie after the amendment has come into force, the finality attached to the summary order also disappears by the substitution of rule 103 effected by the Amendment Act. It is only an order after an adjudication in the manner provided for in the amended rule 101 that will have the force of a decree for the purpose of appeal or otherwise as provided for in the amended rule 103. A separate suit for relief based on title would therefore lie. But the title set up by the plaintiff-respondent, as already found is one hit by the rule of lis precedents. His claim for benefit under sec. 106 of the K.L.R. Act is found to be unsustainable in law. The plaintiff is only a pendente lite lessee of a commercial site from a trespasser against whom the 1st defendant has already obtained a decree for recovery of possession of the property. Since the finality attached to a summary order under Rule 98 of Order XXI as it stood prior to the CPC Amendment Act, 1976 is subject to the results of a suit under Rule 103, the finality does not survive after the substitution of Rules 101 and 103 of Order XXI by the Amendment Act. It cannot therefore be said that Ext. Al order of the execution court confirmed by this Court in revision by the order Ext. XI is res judicata against the contentions raised by the plaintiff in the present suit. Since, however, it is found that he is only a pendente lite lessee of a commercial site, he is not entitled to any relief in this suit.

For the aforesaid reasons I set aside the Judgments and decrees of the courts below and dismiss the suit. The second appeal is allowed, but since, however, the questions raised and decided in this second appeal are not covered by the question of law formulated in the memorandum of appeal, I direct the parties to suffer their respective costs.