M.S. Mansoor Deen and Others vs Mrs. Fathimuthu Beevi and Others

M. Venugopal, J.—The civil revision petitioners have filed the present three civil revision petitions as against the order dated 21.04.2008 in

E.A. No. 766 of 2000 in E.P. No. 156 of 1996 in O.S. No. 25 of 1958 passed by the learned District Munsif Court, Mathuranthakam in allowing

the execution application in E.A. No. 766 of 2000 filed by the decree holder/plaintiff without costs.

The Executing Court, while passing orders in E.A. No. 766 of 2000 dated 21.04.2008, has come to the conclusion that ''at a time when the suit

is pending the respondents have purchased the property and later has constructed buildings and as such there has been no occasion to file an

application to demolish the buildings at the initial stage and as per decree the buildings constructed in the petition properties are ordered to be

demolished and since the sale obtained by the respondents are invalid the patta, house tax receipt, electricity receipt are not maintainable and

resultantly the buildings are ordered to be demolished and obstructions are ordered to be removed and also the electricity connection has to be

disconnected and vacant possession in regard to petition properties item No. 14, 18, 21 are to be handed over to the plaintiff/decree holder and

the petitioner/decree holder is entitled to obtain the deliver of possession and resultantly allowed the application without costs.''

C.R.P. Nos. 1804 & 1805/2008

According to the learned Counsel for the revision petitioners, the order of the Executing Court in directing the removal of obstructions in E.A.

No. 766 of 2000 is contrary to law and evidence of record and at the Executing Court has failed to take note of the fact that the obstructions are

genuine inasmuch as the property sought to be delivered in execution of the decree is not the property covered under the decree and moreover, the

settlement proceeding has been concluded in 1960, long prior to passing of the preliminary decree dated 16.4.1980 and the final decree dated

31.3.1983. But the decree holder/plaintiff has not taken any steps to amend either the plaint or the preliminary decree so as to incorporate the new

survey numbers in place of Paimash number described in the suit schedule and also that in the order dated 22.2.2007 in C.R.P. Nos. 1462 and

1463 of 2006 this Court has left open the question pertaining to the identity of the property sought to be taken delivery and also whether the

inclusion of the alleged corresponding survey numbers in execution petition are all issues to be determined in E.A. No. 766 of 2000 but these

material aspects have not been considered by the Executing Court at the time of passing orders in E.A. No. 766 of 2000 and as a matter of fact,

the Executing Court ought not to have allowed the amendment of execution petition to include new survey numbers as corresponding to the

Paimash numbers mentioned in the decree in the absence of any material on record and in fact, the Executing Court must have noted that item 14

of the decree relates to old S. No. 45/2 of an extent of 7.81 acres. But by virtue of an amendment, the S. No. 178/1, 0.96 acres, New Survey

No. 178/2, 0.98 acres, and New Survey No. 178/3, 1.08 acres, New Survey No. 178/4, 1.14 acres, New Survey No. 178/5, 3.02 acres have

been added and the disparity in the total extent has been completely lost sight of by the Executing Court and in reality the Executing Court should

have taken into consideration that Old Survey No. 45 has an extent of 7.81 acres and further that there cannot be any correlation between Old

Survey No. 45 and newly introduced Survey No. 178 and in short, the order passed in E.A. No. 766 of 2000 by the Executing Court is in

violation of specific directions issued by this Court in C.R.P. Nos. 1462 and 1463 of 2006 and added further, in respect of item 21 of the

execution petition this Court has found that Old Survey No. 69/7, has an extent of 2.68 cents out of which 1 acre is within the specified boundaries

has claimed by the plaintiff/decree holder, while the New Survey No. 200/4 has been introduced by means of an amendment has an extent of only

1 acre and this discrepancy also has not been taken note of by the Executing Court and apart from the above, the Executing Court has also not

taken into account of the fact that the petitioners are bonafide purchasers for a valuable consideration and they have been in possession and

enjoyment of the property for several decades and the respondents are endeavouring to grab the petitioners'' properties by wrongly introducing

their properties by means of an amendment and these factual aspects of the matter have not been appreciated by the Executing Court in a proper

perspective which has culminated in an erroneous order being passed against the petitioners and therefore, prays for allowing these revisions.

C.R.P. No. 1835 of 2008:

The learned Counsel for the revision petitioners/ respondents 1, 4, 5 and 6/third parties submits that the Executing Court while passing orders in

E.A. No. 766 of 2000 has acted with material irregularity when the petitioners herein have been treated as obstructors under Order 21 Rule 97 of

CPC and in fact, the petitioners herein have been arrayed as respondents 1, 4, 5 and 6 and the respondents in the civil revision petition have not

given the description of each property purchased by the petitioners individually as per registered sale deeds Ex.R.1, R.3 and R.4 and R.5 in E.A.

No. 766 of 2000 and merely mentioned the entire final decree property as the petition property in the execution proceedings which is vague and

bald and it is also an abuse of process of the Court and as such, the Executing Court ought to have dismissed the execution application and

furthermore, in the absence of specific schedule of property owned and occupied by each petitioner in the petition, the Executing Court has no

jurisdiction to go into the sale deeds and identify them to the suit properties and therefore, the order of the Executing Court is an unreasonable one

and in fact, the Executing Court has passed impugned order without providing reasonable opportunity to the petitioners and in E.A. No. 353 of

1998 for demolition and removal of superstructure filed against the 63 respondents therein, the revision petitioners are not parties and the

Executing Court has acted with material irregularity by passing a common order and the impugned order which is perverse and not valid in law.

The further pleas of the revision petitioners are that inasmuch as this Court has directed the plaintiffs in O.S. No. 25 of 1958 to implead the

alienees as defendants in the suit so that they can claim equities against their vendors in the final decree in the partitions, the respondents have

deliberately failed to implead the father of the first petitioner i.e. Syed Ibrahim who has purchased the properties under Ex.R.1, R.3 and R.4

between 1972 to 1977, the final decree is not enforceable against the first petitioner herein and the Executing Court has wrongly applied the

Doctrine of Lis Pendens, which has no application for the present suit in view of the judgments passed in S.A. No. 863 of 1965 and L.P.A. No.

90 of 1969 arising out of O.S. No. 25 of 1958 and also that when the petitioners have purchased the properties and when they are in continuous

physical possession of the same for well over a period of 12 years after improving the same by means of paying taxes, kists etc. the impugned

order terming the petitioners as obstructors is not correct in law and moreover, when the Advocate Commissioner has been appointed by the trial

Court to divide the suit properties in terms of preliminary decree and inspite of the demand made by the petitioners to the respondent to submit an

Advocate Commissioner''s report the same has not been filed by the respondents to fix the boundaries of properties and as such, the impugned

order is perverse and therefore, prays for allowing the civil revision petition.

Countering the submissions of the learned Counsel for the petitioners (in all civil revision petitions), the learned Counsel for the respondents

submits that the Executing Court has rightly allowed E.A. No. 766 of 2000 praying for the removal of obstruction under Order 21 Rule 97 of CPC

and therefore, the same need not be interfered by this Court after a long lapse of time when a preliminary decree in O.S. No. 25 of 1958 has been

passed on 15.4.1980 and followed by a final decree has been passed on 31.3.1983.

It is to be borne in mind that the original plaintiff/decree holder in his affidavit in E.A. No. 766 of 2000 has inter alia stated that he has filed the

suit for partition and after trial he has been allowed the properties mentioned in execution petition by the Sub Court, Chengalpet and in execution

petition, the Court has passed an order of delivery and the respondents therein have purchased the properties from the Judgment Debtor and they

are bound by the decree and in fact, they have purchased the properties during the pendency of suit and hence, they cannot claim any interest over

the suit properties and as such, they are bound to deliver possession to him and the application has been filed to remove the obstruction for

delivery of the suit properties by the respondents to him.

It is useful to refer to the order passed by this Court on 22.02.2007 in C.R.P. Nos. 1462 and 1463 of 2006 (filed by the petitioners/3rd parties

thereto) wherein while dismissing the civil revision petitions directions have been given to the Executing Court to offer sufficient opportunity to both

parties to adduce evidence in E.A. No. 766 of 2000 and also the Executing Court has been directed to proceed with E.A. No. 766 of 2000 in

accordance with law.

The learned Counsel for the revision petitioners (C.R.P. No. 1835/2008) cites the decision in Dhurandhar Prasad Singh Vs. Jai Prakash

University and Others, at page 537 wherein it is held as follows:

Order 22 Rule 10 CPC is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the

subject-matter of the suit has developed upon another during its pendency but such a suit may be continued with the leave of the Court by or

against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the

person upon whom the interest has developed will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a

properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with

the adversary resuling in decision adverse to the party upon whom the interest had devolved.

The legislature while enacting Rules 3, 4 and 10 has made a clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no

application for bringing the legal representatives of a deceased party is filed within the time prescribed for setting aside abatement under Rule 9 on

the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply

for leave of the Court to continue the proceeding by or against the person upon whom interest has developed during the pendency of a suit, which

shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was

intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the

event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.

Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during he pendency of a suit, the suit may, by leave of court, be

continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-

matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the

Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so.

However, the learned Counsel for the respondents cites the decision of Hon''ble Supreme Court in Amit Kumar Shaw and Another Vs. Farida

Khatoon and Another, wherein it is held that ''a transferee cannot be joined as of right but the Court has discretion to do so and the said transferee

can be joined as a proper party if his interest in subject-matter of suit is substantial and not just peripheral, though plaintiff has no obligation to join

such transferee and however, joinder of party cannot depend solely on whether he has an interest in the suit property and the question is whether

the right of a person may be affected if he is not joined and such transferee can be joined both under Order 22 Rule 10 or Order 1 Rule 10 of

C.P.C. and given that such transferee is bound by the final decree u/s 52 of Transfer of Property Act, 1882, such application should ordinarily be

allowed etc.''

The vital argument of the learned Counsel for the respondents is that admittedly the transferee pendente lite is bound by the passing of the final

decree dated 31.03.1983 passed in O.S. No. 25 of 1958. Moreover, the contention of the learned Counsel for the respondents is that the plaintiff

is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 of CPC but a alienee pendente lite may be considered as

a party and as a matter of fact, a transferee pendente lite of an interest in immovable property is a representative-in-interest of an individual from

whom he has acquired that interest and a Court of law is to see whether the right of an individual will be affected if he has not added as a party and

such right will also mean an enforceable right.

It is to be borne in mind that an individual bound by a decree encompasses a person claiming through the judgment debtor. The provision for

removal of an individual bound by a decree who does not vacate, takes into account a situation where resistance to possession is offered or

obstruction is made by the judgment debtor, or any other person bound by the decree on the ground which is patently without substance. It may

also include category of a person who claims to be in possession in his own right and independently of the judgment debtor, but whose claim is on

the face of it an unacceptable and cannot be said to be made in good faith. Indeed, once resistance is offered by a so called stranger to the decree

which comes to be noted by a Executing Court as well as by a decree holder, the option available to the decree holder against such an

obstructionists is only as per Order 21 Rule 97, Sub-rule (1) of CPC and he cannot get over such obstruction and insist on re-issuance of warrant

for possession under Order 21 Rule 97. Although the proceedings under Order 21 Rule 97 and 98 may partake the character of the suit, the

proceedings do not acquire the character of suit. In fact intervention by a third party in an execution proceeding by bringing a fresh suit is barred by

Order 21 Rule 101 of CPC as per decision Md. Akhtar Hossain Vs. Suresh Singh and Others,

. It is relevant to make a mention that a plea of limitation in proceedings under Order 21 Rule 97 is not available to the obstructer and the same is

open to judgment debtor only as per decision Shri Jai Prakash Vs. Khimaraj and Another,

.

It is not out of place to point out that Rule 97 of Order 21 of CPC deals with a stage which is prior to the actual execution of the decree for

possession wherein the grievance of the obstructionists can be adjudicated upon before actual delivery of possession to the decree holder and this

adjudication which is subject to the hire archy of police will bind the parties to such proceedings and separate suit is barred as per decision of

Hon''ble Supreme Court Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another,

.

It is pertinent to point out that an appeal against the order rejecting objection under Order 21 Rule 97 is not an Execution Appeal or Regular

Appeal, but an Appeal under Order 21, Rule 103, the scope of manner of disposal is governed by Order 21 of CPC as per decision in M.S.

Khalid and Another Vs. K.R. Rangaswamy and Another,

. Also in Balraj Singh and Another Vs. Ajit Singh,

it is held that an appeal can be filed before the District Judge. Moreover, an appeal is maintainable only against an order adjudicating the rights of

the parties under Order 21 Rule 97 of CPC when the finding of the Executing Court that the status of the appellant is that of a trespasser is not

disputed by him, he cannot evade the order granting police help on the ground that the provision contained in Rule 208 of the Civil Rules and order

has not been followed as per decision Hiralal Sha v. Debprosad Dey and Ors. 1998 CWN 41 : (1998) 1 CHN 399, 403 (DB).

At this juncture, this Court points out the decision in Akula Ramulu and Ors. v. Kammari Balaram and Anr. 2003 AIHC 2538 at page 2541

wherein it is held that ''if a transferee takes place during the pendency of suit or subsequent thereto will have to be ignorant outright by an Executing

Court. In Deccan Enterprises v. Prem Raju alias Prem and Anr. 2002 AIHC 381 at page 385 (Kant) it is held that ''a person who is claiming

through Judgment Debtor has no right to file an application under Order 21 Rule 97.'' It is held in Nabbu Khan v. III Additional District Judge,

Pilibhit 2000 AIHC (All) 4470 at page 4472 that ''once execution fails on account of resistance by some parties it is open to the decree holder to

apply for fresh parwana for fresh execution and Section 11 of the CPC will not be a bar.'' In the decision 1998 AIHC 4261 at page 4270 and

4271 (AP) wherein it is held that ''objection by Judgment Debtor''s brother-in-law to defeat the execution of a decree will be rejected.''

Also in V.K. Rama Setty Vs. A. Gopinath,

it is held as follows:

Keeping in view the language employed in O.21, R.99 it is optional for a person, who is other than judgment-debtor and has been dispossessed,

to make an application to the Court complaining of such dispossession. Under R.99 the use of the word ""may"" gives an option to a person to file

application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from

preferring a suit for possession completely. It will be for him to choose either of the two forums. In the instant case, the respondent had filed

application under O.21, R.99 of the C.P.C. Once such an application is filed it is mandatory on the part of the Court as provided under Sub-rule

(2) of Rule 99, to dispose of the same in accordance with the provisions contained in Rule 100 and 101 of Order 21 of the C.P.C. as noticed

above. It is further of importance to note that once an application is filed by the aggrieved person under Rule 97 or 99 then Rule 101 in an

unambiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and

interest in the property.

On a careful consideration of respective contentions, this Court is of the considered view that the transferees pendente lite from the judgment

debtors have no independent right in the teeth of Section 52 of Transfer of Property Act, 1882 and they cannot resist the execution and in lieu of

the fact that since under the Doctrine of Lis Pendens a decree passed in the suit during the pendency of which transfers are made bind the

transferees the application filed by the original decree holder/petitioner in E.A. No. 766 of 2000 and later continued by his legal representatives (by

virtue of their impleading as per Order dated 06.7.2004 in E.A. No. 788 of 2003) praying for removal of obstruction under Order 21 Rule 97 in

regard to the delivery of execution of petition mentioned property etc., is perfectly valid in law and inasmuch as when the revision petitioners have

purchased the properties pending suit and later constructed buildings, the order of the Executing Court dated 21.4.2008 in allowing the E.A. No.

766 of 2000 does not suffer from any serious infirmity or patent illegality in the eye of law and as such, the same does not require any interference

by this Court and consequently, the revision petitions fail.

In the result, these Civil Revision Petitions are dismissed. The order passed by the Executing Court in E.A. No. 766 of 2000 dated 21.4.2008

is affirmed by this Court for the reasons assigned in these revisions. Having regard to the facts and circumstances of the case, there shall be no

order as to costs. Consequently, connected miscellaneous petitions are closed.