Musstt Rezia Khatoon vs Md. Abul Naser

Manisana, J.—This revision petition is against the order dated 11.12.89 passed in Title Execution Case No. 5 of 1987 by the Sadar Munsiff Gauhati refusing to entertain an application filed by the Petitioner under Order 21 Rule 97 and 99 read with Section 151, Code of Civil Procedure.

The facts of the case of the Petitioner Musstt Rezia Khatoon, in brief, are thus. Her brother Md. Ahiya instituted Title Suit No. 192 of 1986 against one Md. Abul in the Court of the Munsiff Gauhati claiming, inter alia, eviction of Abul. Md. Ahiya obtained a decree ex-parte against Abul. The decree was executed on 19.2.87 and Abul Naser was evicted from holding Nos. 113 and 115, Thereafter, construction on holding, Nos. 113 and 115 was demolished, and the Petitioner and her brother Ahiya mutually and in collaboration with each other constructed one RCC building thereon by investing substantial amount of money.

The ex-parte decree was set aside under Order 9, Rule 1, Code of Civil Procedure. After setting aside the decree exparte, on 9.4.87, on the application for restitution filed by Abul Naser u/s 144, Code of Civil Procedure, the learned Munsiff, in Misc (J) Case No. 17 of 1987, passed an order of restitution in respect of 15 lessas of laud under Dag No. 2057 of K.P Patta No 149 of Sahar Gauhati Mouza with an Assam type house consisting of three rooms under holding No 66/115 of ward No. 20 of Gauhati Municipal Corporation. Thereafter, Abul filed Title Execution Case No. 5 of 1987 for the execution of the order of restitution.

Rezia, the Petitioner, herein, has Instituted Title Suit No. 61 of 1989 against Abul and her brother Ahiya claiming declaration of her title or share to the land measuring 2K-2L of Dag No. 2057 of KP Patta No 149 of Sahar Gauhati Mauza under holding Nos. 113/114/115 of Ward No 20 (New) situated at Hem Barua Road, Fancy Bazar and the house standing thereon, on the footing that she and her brother jointly inherited the land and house from their mother, her share being �rd, and that Abul has not acquired any right or title to the suit premises, in the written statement filed by Abul in Title Suit No 101 of 1971 pending in the Court of the Assistant District Judge Gauhati Abul has admitted her share in the land. In the suit the Petitioner Rezia filed an application under Order 21, Rs. 97 and 99 read with Section 151, CPC for staying the execution of the decree in Title Execution Case No. 7 of 1987. The Sadar Munsiff by an order dated 11.12.89 rejected the petition holding that application could not be entertained as Rezia was a stranger to the proceedings and the application was premature.

Mr. B.K. Das, the learned Counsel for the Petitioner, has submitted that the petition could not be rejected on the ground that it was premature and the Petitioner was a stranger, To support his contention, Mr. Das has referred me to the decisions in Gopi Lal and Another Vs. Jamuna Prasad and Others, Anusuya Bai v. BN Ramatah AIR 1961 My 238 ; Ram Chandra Verma Vs. Manmal Singhi and Another, and Tahera Sayeed Vs. M. Shanmugam and Others,

Before dealing with the decisions in the case cited above, it may be noted that it has been held by the Supreme Court that an application for restitution u/s 144, CPC is an application for execution of a decree See Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and Others, and Maqbool Alam Khan Vs. Mst. Khodaija and Others,

In Gopi Lal and Another Vs. Jamuna Prasad and Others, a Division Bench of the patna High Court has held that:

The doctrine of restitution is based on the equitable principle that, on the reversal or modification of the previous order, the party affected should, as far as possible be placed in the same position which he would have occupied but for a decree, because it is the duty of the Court to act rightly and fairly according to circumstances towards all the parties involved. But this principle cannot be applied in a case where it conflicts with Anr. rule of equity, namely, that a ''bona fide'' purchaser for value should not be allowed to suffer on account of the mistake or irregularities committed in a Court of law.

In the above case, a portion of the property had already gone into possession of a third party who was a bona fide purchaser for value and who had no notice of the decree. Basing on the decisions of the two Privy Council cases, the High Court of Patna ordered that there could be no order of restitution.

In Ram Chandra Verma Vs. Manmal Singhi and Another, the Sikkim High Court has held that where in the course of the execution of a decree for the delivery of any immovable property, a person in possession of the property, who was not a party to the decree, preferred an objection to the execution of the decree by filing an application that, he was not bound by the decree, the executing Court, without holding the person to be bound by the decree, could not reject the application as not maintainable under the law and Order the execution to proceed. The executing Court should have stayed its bands in the matter leaving it to the decree bolder to proceed under Rule 97 or in such other manner as he might have thought fit.

In Tahera Sayeed (AIR 1987 AP 209), the High Court of Andhra Pradesh has held that when the third party, who is not bound by the decree, approaches the Court to protect his independent right, title or interest before be is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as caveat to the decree holder or purchaser or a person claming through him and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97, CPC and to adjudicate it under Rule 98 or Rule 101, CPC which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103, CPC and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi Jas, Ibi remedium and it shortens the litigation preventing needless protraction and expenditure and, therefore, application under Order 21 Rule 97, CPC is maintainable.

The Andhra Pradesh High Court has further hold that even otherwise, the inherent power u/s 151, CPC could also successfully be invoked by the Petitioner and as such, the application of the Petitioner could be treated as one filed u/s 151, CPC the procedure envisaged under Order 21, Rule 98 and 101 is to be followed Order 21, Rule 103, Code of Civil Procedure.

I shall discuss the decision of the Mysore High Court in (sic) case (AIR 1961 Mys 248) later in this judgment.

With respect to Rule 97, in my judgment, it is the right and privilege of a decree holder or auction purchaser alone to move the executing Court under Order 21, Rule 97 when either of them is resisted or obstructed in obtaining possession and that a third party cannot file an application under Order 21, Rule 97, Code of Civil Procedure. As regards Rule 99, I am of the opinion that the rule will come into play when the third party is dispossessed and the third party shall have no cause of action in anticipation that he would be dispossessed. Procedure for adjudication of the claim under Rule 97 or 99 has been provided in the Code. However, an application u/s 151 is maintainable, if the equity intervenes in a case where a third party has been in possession of the decrial land or a part of it. In that case, the Court is to make are enquiry into the the question as to whether the rule of equity is attracted. Therefore, I respectfully agree with the decisions of the above cited cases so far as it relates to provisions u/s 151, Code of Civil Procedure, but with respect, I am unable to agree with the views expressed regarding Order 21, Rule 97, and 99 in those cases.

In the present case, the petition was filed under Order 21, Rule 97 and 99 read with Section 151, Code of Civil Procedure. As already stated, the learned Munsiff has rejected the petition on the ground that the Petitioner was a third party and that the petition was premature. In view of the above discussions and conclusion, the learned Munsiff should have dealt with the application if the inherent power u/s 151, CPC could be exercised.

The next question which arises for consideration is whether the matter should be sent back to the learned Munsiff for disposal of the matter afresh. I am not inclined to do so considering the facts and circumstances of the case. I approach the matter as follows. In Civil Revision 156 of 1987, this Court has ordered that Ahiya, brother of the Petitioner should not make any construction on the suit land without obtaining prior permission from the Assistant District Judge (I) Gauhati. The Privy Council in Jai Berham v. Kedar Nath AIR 1922 P.C. 269 has held that principle underlying Section 144, CPC is that it is one of the first and highest duties of all the Courts to take care that act of Court does not cause injury to any of the suitors. In Anusuya''s case (AIR 1961 Mys 238), basing on the above decision of the Privy Council, the Mysore High Court has held that the injury, if any, is not attributable to an act of court but is an injury in consequence of an act of the party himself, no question of affording relief in respect of such injury can properly arise u/s 114. In Anusuya''s case (supra), the case was that after execution of decree and before order of restitution, an Improvement was made, and it was contended that the restitution could be ordered only on condition that if the value of the improvement is paid before possession could be delivered back. I respectfully agree with the decision of the Mysore High Court.

In the present case, the construction was not made under order of the Court therefore it was not attributable to any act of Court. As already stated, the Court ordered Ahiya not to make any construction without prior permission. There is no materials on record that the construction was made with the permission of the Court. Inspite of the order of injunction directing not to make any construction she and her brother constructed the house mutually and/or in collaboration with each other. Therefore, the possession of Rezia is not absolutely an independent possession. That apart, she come into possession pendente lite of title suit No. 192 of 1986. For the reason stated, the principle of equity is not attracted.

For the foregoing reasons, the petition is dismissed. No costs.