Pokarram vs Anand Rop and Others

Dr. Vineet Kothari, J—This revision petition is reported to be time barred by 323 days.

For the reasons mentioned in the application under Section 5 of the Limitation Act, the delay of 323 days in filing this revision petition is condoned. The application seeking condonation of delay thus, stands disposed of and the petition heard on merits.

The present revision petition has been filed by one Pokar Ram, claiming to be the adopted son of Late Shri Ghasiram, aggrieved by the orders dated 20.02.2013 and 06.03.2013 passed by the executing court of Civil Judge (Junior Division) & Metropolitan Magistrate, Jodhpur Metropolitan, Jodhpur. By the said order, the learned executing court has rejected the application/objection of the present petitioner Pokar Ram filed under Order 21 Rule 97 CPC in the execution of a decree dated 15.02.2007 passed in favour of respondent-Kumari Anand Rop, in whose favour the said Ghasiram had executed a Will on 31.03.1992 for The suit property in question, which is a residential house at Bagar Chowk, Kila Road, Jodhpur.

The reasons assigned by the learned executing court below for rejection of the said application of Pokar Ram, are as follows:--

Subsequently, the application for recall of the said order was also rejected by the learned court below on 06.03.2013, and both these orders have been challenged by the petitioner in the present revision petition.

The present revision petition itself has been filed by the petitioner in this Court on 23.04.2014, after several misconceived remedies availed by the said petitioner before this Court itself.

Initially, the said petitioner-Pokar Ram filed a writ petition challenging the very same impugned order dated 20.02.2013, namely, S.B. Civil Writ Petition No. 6468/2013 (Pokar Ram v. Anand Rop & Anr.), in which the stay application filed by him was rejected on 30.05.2013. Even without obtaining the certified copy of the said order dated 30.05.2013, the petitioner filed D.B. Civil Special Appeal (Writ) No. 290/2013 (Pokar Ram v. Kumari Anand & Ors.), and on the very next day i.e. 31.05.2013, the Division Bench of this Court granted limited interim relief to the petitioner, directing status quo in relation to the property to be maintained, and keeping the execution warrant in abeyance, till the next date i.e. 02.07.2013. The said appeal No. 290/2013 was however, held to be not maintainable by the Division Bench, as no intra-court appeal was maintainable against an order passed in writ jurisdiction under Article 227 of the Constitution of India. The appeal was accordingly dismissed as not maintainable on 26.08.2013, and the matter was directed to be listed for final hearing. However, on 05.09.2013, writ petition No. 6468/2013 itself was withdrawn by the learned counsel for the petitioner Mr. M.S. Purohit, with liberty to file an appeal before the learned Additional District Judge. Accordingly, the appeal was preferred before the learned Additional District Judge No. 3, Jodhpur Metropolitan, Jodhpur, against the said order dated 20.02.2013, which too came to be dismissed on 21.11.2013, affirming the orders dated 20.02.2013 and 06.03.2013 passed by the learned executing court below. A second appeal under Section 100 of the Code of Civil Procedure was filed against the said order of the learned Additional District Judge dated 21.11.2013, namely, S.B. Civil Second Appeal No. 209/2013 (Pokar Ram v. Kumar Anand & Anr.), which was also dismissed, as not maintainable, on 18.04.2014 by a coordinate Bench of this Court. Thereafter, it seems that the present revision petition was filed after a week or so by the petitioner in this Court on 23.04.2014. The relevant portion of the order dated 21.11.2013 passed by the learned Additional District Judge No. 3, Jodhpur Metropolitan, Jodhpur and the relevant portion of the order passed by the coordinate Bench of this Court, dismissing the second appeal on 18.04.2014 are also quoted below for ready reference:--

"In view thereof, the objection raised by the respondent regarding maintainability of the first appeal as well as the present second appeal is sustained and the appeal is held to be not maintainable.

So far as the judgments cited by learned counsel for the appellate on merits of the objections as well as maintainability of the application under Order XXI, Rule 97 CPC before the executing court at the instance of the appellant is concerned, besides the fact that appellant''s suit seeking cancellation of Will already stands dismissed, in view of the fact that the present proceedings itself have not held as not maintainable, the said judgments on merits are of no avail.

In view of the above discussion, the present second appeal filed by the appellant is not maintainable and the same is, therefore, dismissed.

Sd/- (ARUN BHANSALI),J."

The operative portion of the order dated 21.11.2013 passed by learned Additional District Judge No. 3, Jodhpur Metropolitan, Jodhpur is also quoted hereinbelow for ready reference:--

Learned counsel for the petitioner Mr. M.S. Purohit, relying upon the decision of the Hon''ble Supreme Court in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 : (1997) 1 JT 641 : (1997) 1 SCALE 437 : (1997) 3 SCC 694 : (1997) 1 SCR 463 , submitted that the petitioner is the adopted son of Bhikhi Bai wife of Ghasi Ram under a registered adoption deed, and therefore, being the owner of the said property, claiming through Bhikhi Bai, he was entitled to obstruct the execution of the decree, even though he was not a party to the suit, in which the decree dated 15.02.2007 was passed, and was a stranger. But without determining his rights under Order 21 Rule 99 read with Rule 101 CPC, the learned court below could not have dismissed his objections. He submitted that the writ petition was filed challenging the said orders, but the same was held to be not maintainable, and therefore, an appeal was filed before the learned Additional District Judge, upon dismissal of which also, a second appeal was preferred, as aforesaid, but since that was also held to be not maintainable, the present revision petition has been filed by the petitioner against the appellate order of the learned Additional District Judge. He further submitted that a suit for declaration of the petitioner being the adopted son of Bhikhi Bai, who since expired on 10.12.2011, is pending in the court of Civil Judge (Junior Division) No. 7, Jodhpur Metropolitan, Jodhpur, as mentioned in the aforesaid quoted portion of the order dated 20.02.2013, namely, C.O. No. 128/2000 (Bhikhi Bai & Ors. v. Anand Rop). It has also filed another suit, namely, Suit No. 28/13 seeking cancellation of Will of Late Ghasi Ram in favour of respondent-Kumari Anand Rop, which is also pending, but his objections deserve to be decided by the learned trial court under Order 21 Rules 97, 99 & 101 CPC, and therefore, the present revision petition deserves to be allowed.

On the other hand, learned counsels for the respondent Mr. M.L. Chhangani & Ms. Madhu Gupta submitted that the petitioner is a distant relative of Late Smt. Bhikhi Bai, whereas the respondent-Kumari Anand Rop is the niece of Late Ghasi Ram being the daughter of his younger brother Goverdhan and the Will was executed by Late Ghasi Ram in favour of Kumari Anand Rop on 31.03.1992 duly attested by two witnesses and also notarized on 02.06.1992, and the said petitioner-Pokar Ram is not only trying to obstruct the execution of the decree in favour of the respondent on the basis of the said Will to somehow to grab the possession of the suit property in question, whereas in the present execution proceedings itself, after rejection of his objections on 20.02.2013, on 14.05.2014, the possession has been handed over to the decree-holder/respondent-Kumar Anand Rop.

Learned counsel for the respondent also relied upon the judgments of this Court in the case of Shri Jai Prakash Vs. Khimaraj and Another, AIR 1991 Raj 136 : (1990) WLN 326 and Full Bench of the Karnataka High Court in the case of V.K. Rama Setty Vs. A. Gopinath, AIR 1998 Kar 186 : (1997) 4 KarLJ 40 , and submitted that a stranger obstructer does not have any right of audience in the execution proceedings before the executing court below, and since the adoption of the petitioner-Pokar Ram has been seriously disputed and denied by the respondent, and he is yet to prove the same in the separate civil suit filed by him, he cannot claim any right, title and interest in the suit property and retain the possession thereof, which has actually been handed over to the decree-holder on 14.05.2014. Distinguishing the judgment of the Supreme Court relied upon by the learned counsel for the petitioner in the case of Brahmdeo Chaudhary (supra), Mr. M.L. Chhangani urged that the said case does not apply to the facts of the present case, inasmuch as there is no occasion for the stranger losing the possession before he can establish his claim in the present execution proceedings for proving his right, title and interest in the said suit property, if at all he can obtain a decree from the competent court in the suit filed by him. Mr. M.L. Chhangani also contended that even assuming for the argument sake that the adoption is upheld on the basis of so called adoption deed, the right of the adoptive father Ghasi Ram to will away his own property cannot be questioned by the adopted son, and therefore, so long as he remains a stranger to the suit and the decree in question, he cannot resort to the Order 21 Rule 97 CPC to establish his right as adopted son, relying upon the judgment of the Hon''ble Supreme Court in the case of Brahmdeo Chaudhary (supra).

I have heard learned counsels for the parties at length, perused the impugned orders, record of the case and the judgments cited above.

In the considered opinion of this Court, the present revision petition filed by the petitioner-Pokar Ram is a sheer abuse of the process of law. He appears to be a cantankerous litigant, exploring every possible avenue and remedy, even though it may not be available to him in law. He is admittedly not a party to the suit, in which decree was passed in favour of the respondent on 15.02.2007. Even his application, to be brought on record as legal representative of Bhikhi Bai, during the course of execution, also failed. The appeal against the same was also dismissed by the appellate court. Against the same impugned orders dated 20.02.2013 and 06.03.2013 itself, the present petitioner had initially filed a writ petition under Article 227 of the Constitution of India, then withdraws it, an intra-court appeal, which was not maintainable, was filed without even certified copy of the impugned order then upon its rejection, files an appeal before the learned Additional District Judge; and upon its dismissal, files a second appeal under Section 100 of the CPC, which too, is held not maintainable, and upon its rejection, finally by the coordinate Bench of this Court on 18.04.2014, files the present revision petition, a week thereafter on 23.04.2014. At least, a period of one year was spent in this process of availing misconceived remedies, dragging the decree-holder into this litigation and successfully avoiding the handing over of the possession in pursuance of decree dated 15.02.2007, until 14.05.2014 after seven years, when the possession was handed over to the decree-holder.

That apart, the very foundation of his claim over the suit property cannot succeed, unless and until (i) Will dated 31.03.1992 executed by Ghasi Ram in favour of his niece Kumari Anand Rop is quashed and set aside by a competent court and (ii) that his adoption by Bhikhi Bai is upheld by the competent court and bequeath of property by Ghasiram in favour of Anand Rop is set aside as illegal. Both these proceedings of whatever merit are as now pending before the competent court in the separate suits filed by him, namely, Suit No. 28/2013 (Hanmana Ram v. Kumari Anand Rop) and C.O. No. 128/2000 (Bhikhi Bai & Ors. v. Anand Rop).

The legal position with regard to maintainability of the objections under Order 21 Rule 97 CPC is well settled and does not require much debate. The judgment debtor, if he obstructs the execution of the decree, the decree-holder can move the court under Order 21 Rule 97 CPC for possession, upon such objection or obstruction of the judgment debtor, and upon determination and adjudication of such objections, the executing court can proceed to execute the decree. The rights of a stranger, who was not a party to the suit and decree, cannot be independently decided under Order 21 Rules, 97, 99 & 101 CPC, as contended by the learned counsel for the petitioner. The judgment cited and relied upon by Mr. M.S. Purohit, learned counsel for the petitioner does not support the present case at all. Where the person, who has a pre-existing right, title and possession in the suit property, even if he was not a party to the suit, can obstruct the execution of decree or his dispossession, and in these circumstances, the court held that he cannot be asked to first to be dispossessed, and then, establish his right, title and interest over the property. It was a case of a true owner of the property, who had been a stranger to the decree and continued to remain in the possession was allowed to hold the possession, till his objections are decided, and the Hon''ble Supreme Court held in the following terms:--

"5. The view that claim of stranger obstructionist would only be considered after he has lost possession to decree-holder would result in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder."

In the present case, the facts are otherwise. The petitioner-Pokar Ram, who claims to be the adopted son of Ghasi Ram, is yet to prove his adoption by Bhikhi Bai wife of Ghasi Ram. He has also challenged the Will of Ghasi Ram dated 31.03.1992. His these two suits are yet to be decided by the competent courts. Therefore, he cannot be said to be a stranger to the present decree, having a pre-existing right, title and interest in the suit property. The right, title and interest of the suit property, flowing through Ghasi Ram to the respondent/decree-holder-Kumari Anand Rop through his wife Bhikhi Bai, have come to her through the Will dated 31.03.1992. In that decree, if the present petitioner was admittedly a stranger, he cannot obstruct the execution of that decree, by way of filing objections under Order 21 Rule 97 CPC. This Court in Shri Jai Prakash (supra) therefore, held that the stranger to the decree cannot maintain his objections under Order 21 Rule 97 CPC, in the following terms:--

"24. It was contended by Mr. K.C. Samariya, the learned counsel appearing for the decree-holder-respondent No. 1 that in view of the decision of this Court in Raghuvar Dayal Vs. Hargovind and Another, AIR 1958 Raj 287 this revision petition is not maintainable. He has submitted that the petitioner has already availed his alternative remedy and he is not at all a party to the execution proceedings. Even the Sale Ameen has not reported in execution of the second warrant of possession issued by the Court that any obstruction has been put by any party. In this case, no second application under O. XXI, R.97, CPC has been filed. The petitioner has no right to file an application under O. XXI, Rule 97, CPC. In the facts and circumstances of the case, I am firmly of the view that the contention of the decree-holder respondent No. 1 that this revision petition is not maintainable deserves to be sustained. This second execution petition relates to the execution of the decree against the judgment-debtor, in which the obstructer-petitioner is not at all a party. No obstruction has been reported by the Sale Ameen in execution of the second warrant of possession issued by the Court and no second application under O. XXI, R.97, CPC has been filed. If the petitioner feels that this second application for execution of the warrant of possession adversely affects him, he may seek any alternative remedy, which is available to him in the suit, which has been filed by him. He cannot be heard in the execution petition and, therefore, in my opinion, the learned lower Court was right in rejecting the application u/S.151, CPC filed by the petitioner. Thus judged from any angle, I am firmly of the view that his revision petition is not maintainable."

Therefore, this Court is of the considered opinion that the objections filed by the present petitioner have been rightly rejected by the learned court below by the impugned order dated 20.02.2013, and subsequent application for recall thereof by the impugned order dated 06.03.2013. There is no force in the present revision petition filed by the petitioner, and the same is liable to be dismissed with costs in view of repetitive and ill-conceived litigation by the petitioner.

Accordingly, the revision petition is dismissed, with costs of Rs. 5,000/- to be paid by the petitioner to the respondent within three months. Copy of this order may be sent to the learned courts below and the concerned parties forthwith.