Ramachandra vs Smt. Kempamma and Others

K.L. Manjunath, J.—This petition is filed by the petitioner being aggrieved by the rejection of his application filed under Order 41, Rule 5 of the CPC in R.A. No. 56 of 2002 on the file of the Civil Judge (Senior Division), Nanjangud, which appeal was filed against the rejection of his application filed under Order 21, Rules 97 to 99 and 101 of the CPC in Execution No. 93 of 2000, on the file of the Principal Civil Judge (Junior Division), Nanjangud.

The respondent 1-Smt. Kempamma in this revision petition, filed a suit for declaration and for possession in O.S. No. 30 of 1990 on the file of Civil Judge (Junior Division), Nanjangud, against respondents 2 and 3 herein. The said suit was hotly contested and a decree was passed in favour of the 1st respondent against which, respondents 2 and 3 filed an appeal before the Civil Judge (Senior Division), Nanjangud in R.A. No. 10 of 1997. The said appeal also came to be dismissed on merits. After the confirmation of the judgment and decree passed in O.S. No. 31 of 1990 in R.A. No. 10 of 1997, respondents 2 and 3 filed a second appeal before this Court in R.S.A. No. 829 of 2000. The second appeal filed by the respondents 2 and 3 was also dismissed, confirming the judgment and decree of the lower Courts. Thereafter, the respondent 1 filed the execution petition to execute the decree obtained by her against respondents 2 and 3 in Execution No. 93 of 2000. The judgment-debtors objected for delivery of Delivery Warrant being issued by the executing Court. Thereafter, the present revision petitioner filed an application under Order 21, Rules 97 to 99 claiming to be a tenant of the decree-holder; as if under an oral agreement, he was inducted as a tenant initially on a monthly rent of Rs. 100/- and the same was enhanced to Rs. 150/- and that he has been tethering the cattle in the premises in question. He further contends that he was aware of the litigation pending between the parties and that the decree-holder had promised him that his possession would not be disturbed. Based on the alleged oral promise of the decree-holder, he requested the executing Court to adjudicate his claim, without producing any material along with the application.

The said application was resisted by the decree-holder contending that, at no point of time the present revision petitioner was inducted as a tenant and that the applicant has been set up by the judgment-debtors. The application filed by the petitioner herein was dismissed by the executing Court by its order dated 3rd April, 2002. Against the dismissal of his application, the petitioner filed an appeal u/s 96 of the CPC in R.A. No. 56 of 2002 on the file of the Civil Judge (Senior Division), Nanjangud. In the said appeal, the petitioner filed an application under Order 41, Rule 5 of the CPC to stay the further proceedings in Execution No. 93 of 2000 pending disposal of the appeal. The Civil Judge (Senior Division) also rejected the application and refused to grant an interim order of stay.

Being aggrieved by the said order, the present revision petition is filed. The petitioner has raised two grounds in this revision. According to him, (a) the executing Court has committed an error in not conducting a full-dressed trial before rejecting his application; (b) when the petitioner is claiming an independent right through the decree-holder, it was incumbent upon the executing Court to conduct a trial and to dispose of the application.

He has also relied upon the judgment of the Supreme Court in the case of N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, . Relying upon this judgment, he requests this Court that if the further proceedings before the executing Court is not stayed, the appeal filed by him before the Civil Judge (Senior Division) and Judicial Magistrate First Class, Nanjangud, will become infructuous and that the decree-holder will execute a decree. Therefore, he requests this Court to set aside the order passed by the Civil Judge (Senior Division), Nanjangud on I.A. No. I in R.A. No. 56 of 2002,

After hearing the learned Counsel for the petitioner, two points will emerge for consideration of this Court:

(i) Whether two persons can claim tenancy in respect of single tenement?

(ii) Whether the person claiming tenancy under the decree-holder can maintain an application under Order 21, Rules 97 to 99 and 101 of the CPC?

There cannot be any quarrel over the legal proposition put forth by the learned Counsel for the petitioner. If the petitioner is claiming right, not through the judgment-debtor and claiming right independently, his claim has to be adjudicated on merits. But in the instant case, except filing an affidavit in support of his application, petitioner has not produced anything to show that he is a tenant under the decree-holder. In other words, he pleads oral tenancy. In the affidavit filed in support of the application, petitioner has not even stated the details of his tenancy rights as to when and how he was inducted as tenant, that when judgment-debtors were doing tailoring business. Admittedly, judgment-debtors as well as the applicant are claiming tenancy in respect of the same premises. Judgment-debtors are contesting the case right from the inception of the suit filed by the decree-holder. They have even filed second appeal before this Court. They have also objected for issuing delivery warrant in the execution proceedings bringing obstruction to the execution. Considering the case of the judgment-debtors, it has to be held that they are in possession of the disputed property. The property involved in the decree is only a small room. When the Trial Courts have concurrently held that judgment-debtors are in possession, how can the present revision petitioner contend that he was inducted as tenant by the decree-holder. According to him, he has occupied the premises knowing fully well the litigation pending between the decree-holder and the judgment-debtors. There cannot be any two tenancy in respect of a single tenement and that the contention of the petitioner that he was inducted during the pendency of the litigation by the decree-holder cannot be accepted, since the judgment-debtors are claiming right of tenancy during the pendency of civil suit. So, in the circumstances, this Court has to hold that petitioner herein has failed to prove the tenancy under the decree-holder and that the executing Court has rightly rejected the application disbelieving the contentions urged by the petitioner and which order has been rightly affirmed by the Appellate Court.

It is not in dispute that a third party who is claiming right in respect of a property involved in the execution and that who is not claiming through a judgment-debtor can maintain an application and requests the Court to adjudicate his application in accordance with the provisions of Order 21, Rules 97 and 98 of the CPC treating the same as a regular suit. From this, it is clear that obstructions can be made only by a stranger to the decree and that who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. As a matter of fact, he is also entitled to agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99 of the CPC. Order 21, Rule 97 deals with the stage which is prior to the actual execution of the decree for possession. "Therefore, whether a person claiming under the decree-holder can invoke the provisions of Order 21 to retain his possession or to resist the execution?" A decree-holder who has obtained the decree seeking possession from the judgment-debtor can apply for execution and request the Court to issue delivery warrant. In the said process, only a stranger to the decree and that, who is not claiming right through judgment-debtor can make an application. But in the instant case, petitioner is claiming right under the decree-holder as a lessee. Therefore, the application filed by the petitioner could not have been considered by the Court as he is claiming through decree- holder and that his remedy is elsewhere and not before the executing Court by invoking the provisions of Order 21, Rule 97 of the CPC. No doubt, petitioner herein is also claiming an independent right but not as a stranger to the decree-holder, but he is seeking adjudication of his claim as a tenant of the decree-holder. Therefore, if the decree-holder is intending to dispossess the petitioner, petitioner cannot approach the executing Court under Order 21, Rule 97 of the CPC, but his remedy is elsewhere. Since Order 21, Rule 97 is applicable to the person who claims an independent right not either under the judgment-debtor or decree-holder, the petitioner cannot invoke the provisions of Order 21, Rule 97 of the CPC.

Accordingly, I see no reason to interfere and this revision petition is dismissed.