Pt. Har Sarup vs Municipality, Karnal and others

R.S. Narula, J.—The plaintiff-petitioner obtained a decree against the Municipal Committee, Karnal (Respondent No. 1) restraining the Committee from interfering with the lawful possession of a certain tract of land described in the decree by getting Khokhas constructed thereon or otherwise changing the nature and shape of the suit property. The decree further provided that the Municipal Committee should get the Khokhas constructed by their lessees removed and the land be restored to its former condition. It is stated that at one stage the contesting respondents resisted the execution of the decree regarding their Khokhas and the decree holder at that time made statement to the effect that the decree in respect of the rest of the property be executed and the Khokhas of the objectors dealt with subsequently. After getting the decree executed in respect of the rest of the area, the decree-holder made an application to the executing Court for issue of a warrant against not only the judgment-debtor Committee but also against the proprietors of Guru Nanak Furniture House and Ahuja Furniture House regarding the sites in the occupation of the above mentioned two parties on the ground that they had been inducted into possession by the judgment debtor Committee or by the lessee of the Committee. Notice of the application of the petitioner was given to the said private parties. They contested the application and put in objections claiming that their khokhas were not on the land covered by the decree and they were in occupation thereof in their own right and no warrant could be issued against them. The objections have not yet been inquired into by the executing Court. All that the Court below has done so far is to decline to issue a warrant of possession against the persons who are not parties to the decree and has said that such a course could be adopted only after bearing and disposing of their objections.

Mr. P.S. Jain, the Learned Counsel for the decree holder petitioner, has referred to the cases hereinafter mentioned in support of his proposition that however bona fide may be the objection of the objectors to the execution of the decree against them, the objectors must be left to the mercy of the decree-holder and if the decree holder does not choose to make an application under Order 21, rule 97 of the Code of Civil Procedure, the Court should, on the application of the decree holder, issue warrants against the non-party objectors and pet the decree executed against them. The proposition canvassed by Mr. Jain is not borne out by any of these cases. Counsel has referred to the authoritative pronouncement of their Lordships of the Supreme Court in Shri Jagadguru Gurushiddaswami Guru Gangadharswami Murusavirmoth v. The Dakshina Maharashtra Pigambar Jain Sabha AIR 1955 SC 514. All that was laid down in that case was that a sub-lessee can be assumed to be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub lease was created before or after the suit. An exception even to that rule was referred by the Supreme Court when it said that this rule would apply provided the eviction is based on a ground which determines the sub lease also. At the same time, their Lordships made it clear that the above mentioned principle cannot be applied where the decree was obtained by the decree bolder, not in a Suit brought by him as the holder or manager of the Math to recover possession of Math property. No lease has been determined in this case. The law laid down by the Supreme Court in Jagadguru Guruchiddcswami case AIR 1955 SC 514 has, therefore, no application to the facts of the instant litigation.

Sheikh Yusuf Vs. Jyotish Chandra Banerjee and Others, was again an execution under O.21, R.35 of the code of Civil Procedure, where a decree for possession had to be executed. The instant decree is not for possession out only for a prohibitory and a mandatory injunction. The Calcutta High Court held in Sheikh Yusuf''s case that the words "any person bound by the decree" in O. 21, R. 35 include the judgment debtor as Well as any person who may be held under the law as bound by the decree. That was also a case where the question was whether a sub tenant of the judgment debtor tenant was or was not bound by the decree for eviction.

The judgment of the Full Bench in Kesavan Padmanabhan and another v. Neelkantan Narayanar AIR 1955 T.C. 225, does help the petitioner to some extent, but does not go far enough to make him to succeed. That case also related to the execution of a decree for possession of immovable property and it was canvassed on behalf of the objectors that when they refused to give possession and come to the Court with their objections, this should be treated as passive obstruction to the execution of the decree within the meaning of Order 21, rule 97, and that the said provision covers passive as well as active obstruction or resistance. That plea of the objectors was turned down by the Full Bench. To that extent, it may be said that by merely filing objections against execution, the objectors have not resisted or obstructed the execution of the decree, but I cannot lose sight of the fact that they had actually actively obstructed the execution of the decree at an earlier stage when the decree holder had made a statement leaving them out for the present. It is not necessary that the objector must continue to obstruct so long as the decree holder is not able to muster strength, enough on some occasion to forcibly throw them out despite their obstruction.

Counsel has also relied on a judgment of a learned Single Judge of this Court in Smt. Kamla and others v. Surinder Kumar (1969) 71 P.L.R. 313. All that was held by implication in Kamal''s case was that the right to make an application under Order 21, rule 97 has been vested by the Code in the decree holder and in no one else. There is no quarrel with that proposition of law.

There is a clear distinguishing feature between all the cases to which the counsel has referred and the case in hand. In none of those cases on which counsel 1 as relied was ever an application made or a prayer pressed for issuing a warrant against some one who was not a party to the decree. In the instant case also, the Court could not have refused the issuing of a warrant against the judgment debtor but it has rightly declined the request of the decree holder to issue a process in execution or a warrant against the objectors who were not judgment debtors and were never impleaded as parties to the litigation in which the decree under execution has been passed, and against whom no finding has at any stage been given that they are bound by the decree or ate claiming under the judgment debtor. Counsel has not been able to cite a single case, and I am afraid there would not be any In which it might have been held that the court can issue a warrant for the execution of a decree against some one who is not a judgment debtor and not a party to the decree, nor found to be bound by the decree, nor claiming under or through the judgment debtor. If Mr. Jain''s argument were to be accepted that merely because a decree holder asks for execution of his decree against a person who is not a party to the decree nor shown to be bound by it without hearing the cries of such a person that he has nothing to do either with the judgment debtor or with the property covered by the decree, the Court is bound to issue a warrant against such person and tell him that his objections would be heard only if the decree holder is pleased to ask for such adjudication, it would open a floodgate For collusive decrees and play havoc in a country committed to the rule of law. I ad not prepared to subscribe to any such bourgeois proposition of law which may unjustifiably cause hardship and misery to the innocent citizens at the hands of unscrupulous decree holders.

For the reasons recorded above, I am unable to interfere with the order of the trial Court and upholding the same, dismiss this petition. The parties are, however, left to bear their own costs.