Kamakhya Prasad vs Uday Chand Mahatab Bahadur

Das Gupta, J.—The Respondent, having obtained a decree for money against the present Appellant, put the decree into execution on February 15, 1945, and in these proceedings the property of the Appellant was put to sale on June 4, 1945, and purchased by the Respondent decree-holder. It appears that, in spite of an order issued by this Court, restraining further proceedings in the execution case, the sale was confirmed on April 16, 1946. An application for delivery of possession under the provisions of Order XXI, Rule 95 of the Code of Civil Procedure, was made on November 26, 1946. Successive writs for delivery of possession proved unsuccessful. The last writ that was returned unexecuted had been issued on July 12, 1949.

It was returned unserved on August 12, 1949, with a report that the writ could not be executed as regards one item of the properties because of resistance by a third party and could not be executed as regards the remaining properties because the decree-holder''s man could not identify the properties. Thereafter, the case was adjourned by the court to August 27, 1949. On that date, the decree-holder auction-purchaser, the present Respondent before us, filed a petition for time for fifteen days to enable him to file a petition under Order XXI, Rule 97 of the Code of Civil Procedure. The order passed by the court on this application for time was in these words:

Decree-holder auction-purchaser files a petition for time for fifteen days to enable him to file an application under Order XXI, Rule 97 of the Code of Civil Procedure. He may do that within that date if he so desires, if not otherwise barred. No need of keeping the petition for possession pending any longer. Ordered that the petition for possession be disposed of.

On September 7, 1949, an application under Order XXI, Rule 97 of the Code of Civil Procedure, was actually filed, but that was finally dismissed on June 26, 1950, the court being of opinion that the application was time barred. On July 29, 1950, the Respondent filed another application for delivery of possession under Order XXI, Rule 95 of the Code of Civil Procedure. This was opposed by the judgment-debtor on two grounds. In the first place, it was contended that the application was barred by limitation having been filed more than three years after the date of confirmation of the sale. In the second place, it was argued that the application under Order XXI, Rule 97 of the CPC having been dismissed, no delivery of possession under Order XXI, Rule 95 of the Code of Civil Procedure, could further be ordered by the court and the only remedy of the Respondent was by way of a fresh suit. Both these objections were overruled by the learned munsif. In appeal, the learned district judge has agreed with the trial court on both these points and has confirmed the order rejecting the objections raised by the judgment-debtor.

It has been contended before us by Mr. Mitra that on both these points the courts below were wrong and that, firstly, the application filed on July 26, 1950, for an order of delivery of possession must be held to be barred by limitation, and secondly that after the application under Order XXI, Rule 97 of the Code of Civil Procedure, was dismissed, no further action could be taken by the court by way of directing delivery of possession to be made under Order XXI, Rule 95 of the Code of Civil Procedure.

The decision of the first question clearly depends on the determination of the question whether the application that was filed on July 29, 1950, for delivery of possession was in substance a fresh application or was really a prayer for action on the earlier application that had been "disposed of" by the court by the order dated August 27, 1949. The real question is whether by that order of August 27, 1949, the learned subordinate judge did, in fact, make a final adjudication of the matters before him. If there was no final adjudication, the words used by him that "the "application is disposed of" could not have the result of terminating the proceedings that were pending. It is clear that the CPC does not contemplate that the application for delivery of possession under Order XXI, Rule 95 of the CPC would be dismissed before an application under Order XXI, Rule 97 of the Code of Civil Procedure, has been disposed of. The scheme of the law clearly is that, if after a writ for delivery of possession is issued, the decree-holder auction-purchaser complains of obstruction, that complaint will first be disposed of. If the court is satisfied that the obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it is the court''s duty under Rule 98 of Order XXI of the CPC to direct that the Appellant be put in possession of the property. On the other hand, if the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court''s duty under Rule 99 of Rule XXI of the CPC is to make an order dismissing the application. When an order is made under the provisions of Rule 99 of Order XXI of the CPC dismissing the application under Order XXI, Rule 97 of the Code of Civil Procedure, obviously there cannot be, in view of the provisions of Order XXI, Rule 103, any further scope for the court to pass an order for delivery of possession under Rule 95, Order XXI of Code of Civil Procedure. When, however, an order is passed under Order 98, Order XXI of the Code of Civil Procedure, the order is really giving effect to the previous order under Rule 95, Order XXI of the Code of Civil Procedure. It is clear, therefore, that before either dismissing or allowing an application under Order XXI, Rule 97 of the Code of Civil Procedure, the court cannot in law pass an order terminating the proceedings under Order XXI, Rule 95 of the Code of Civil Procedure. When we bear this in mind and then look at the order passed by the court on August 27, 1949, the conclusion is irresistible that the order passed on that date was merely for statistical purposes or for purposes of convenience of the court. It amounted to nothing more than directing remission of the records to the record room, and was in no sense a real disposal of the matter. The court did not try even to adjudge whether any possession could be delivered in the circumstances mentioned. On a consideration of all the circumstances in this case, we have come to the conclusion that, the order dated August 27, 1949, though purporting to dispose of the petition for possession, was not, in substance, a disposal of the matter, and it must be held that in law the petition for possession that had been filed on November 26, 1946, still remained pending. There can be no doubt, therefore, that the question of limitation would not arise when another application was made on July 29, 1950, for delivery of possession. The application dated July 29. 1950, cannot but be considered to be merely a prayer for further action on the application that had been filed on November 26, 1946. The objection on the ground of limitation must, therefore fail.

There remains for consideration the objection that when the decree-holder auction-purchaser had made an application under Order XXI, Rule 97 of the Code of Civil Procedure, and had failed, no further action could be taken by the executing court in the way of giving delivery of possession. It may be mentioned that if this objection had any substance, it would apply only as regards that item of the property, for which resistance was offered. In our judgment, there is no substance at all in the objection.

At one stage, Mr. Mitra tried to argue that the order of dismissal of the application that was filed under Order XXI, Rule 97 of the Code of Civil Procedure, was really an order under Order XXI, Rule 99 of the Code of Civil Procedure. If that were true, the provisions of Rule 103 of Order XXI of the CPC would come into play. Obviously, however, the court did not base its Order on any decision that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to have a right to be in possession of the property on his own account or on account of some person other than the judgment-debtor. It based its order of dismissal on the finding that the application, had been made more than 30 days from the alleged resistance. It is impossible, therefore, to consider the order of dismissal as one under Order XXI, Rule 99 of the Code of Civil Procedure.

It is, however, argued by the learned advocate for the Appellant that in any case the law is that when there has been an obstruction to the writ for delivery of possession issued under Order XXI, Rule 95 of the Code of Civil Procedure, and the decree-holder does not take any action under Order XXI, Rule 97 of the CPC within the time allowed by law, there is no scope for any further action by the court for delivery of possession. In our judgment, there is no substance in this contention. It was held as early as the case of Sariatoolla Molla v. Raj Kumar Roy (1900) ILR 27 Cal. 709 that an application by the decree-holder to be put in possession of a property is a step-in-aid of execution. This view has been followed in a large number of cases by this Court as well as other High Courts. The obvious result of that is that within three years from the date of the application for possession a fresh application for execution of the decree will lie. To say that though a fresh application for execution of the decree lose still lie within three years from the date of the application or possession, no fresh application for another writ will lie is, in our judgment, absurd. There is no reason to drive the decree holder to another application for execution and thereafter make in application for a writ for delivery of possession instead of allowing it to be made in the application for execution, which is already before the court. It cannot for a moment be suggested that the failure to make an application under Order XXI, Rule 97 of the Code of Civil Procedure, because of obstruction will be a bar to the making of a fresh application for execution. We cannot see how then it can be said that the failure to make an application under Order XXI, Rule 97 can be a bar to a fresh application for a writ for delivery of possession.

The view we take was taken by a Special Bench of the Patna High Court in the case of Raghunandan Prasad Missra v. Ram Charon Manda (1918) 4 P.L.J. 94. Stress was laid in that case on the fact that the words of Rule 97 of Order XXI of the CPC are merely permissive and under these the decree-holder may make an application complaining of obstruction and that the law does not require that he must make such an application. We respectfully agree with this view and consider that, as the law does not make it obligatory on the decree-holder or the purchaser to make an application under Order XXI, Rule 97 of the Code of Civil Procedure,, the failure to make such an application at all cannot be a bar to his continuing with the application already made under Order XXI, Rule 95 of the CPC or to make a fresh application, if not barred by time. The same view was taken by the Madras High Court in the case of N.K.M. Meyappa Chetti v. V.K. Meyappan Servai (1921) 66 Ind. Cas. 722.

Both the objections raised by the judgment-debtor have therefore, been rightly rejected by the courts below.

The appeal is accordingly dismissed with cost.

Lahiri, J.

I agree.