Ramkishore vs Smt. Mannaver Begum and Another

Shiv Kumar Sharma, J.—Both these cases relate to the execution of a decree as such, are decided by a common order.

Ex parts eviction decree was passed on 14.2.1992 in favour of Smt. Mannaver Begum and against Udai Lal with respect to a shop situated at Ramgarh Mod, Amer Road, Jaipur. Smt. M. Begum put the decree into execution, in compliance of warrant of possession issued by the executing Court, the Court Ameen went at the spot and found that Ram Kishore, was in the possession of the shop in the name and style of M/s. Mangal Kirana and General Store. The warrant of possession could not be executed as Ram Kishore resisted it. Court Ameen referred the warrant with his report and sought police help.

On the request of Smt. M. Begum, the decree holder, executing Court ordered to arrange police help for delivery of possession. Ram Kishore thereafter, moved an application on 25.2.1994 u/s 151, CPC before the executing Court stating therein that since he had an independent title in the shop, he was not bound by the decree and the warrant could not have been executed against him. Smt. M. Begum filed reply to the application on 1 ..1.1994 and prayed for rejection of the said application on the ground that Ram Kishore being sub-tenant, was bound by the decree. In support of the reply Smt. M. Begum filed and affidavit on 5.8.1994.

On 2.9.1994 Ram Kishore moved another application and prayed that reply dated.21.3.1994 and affidavit dated 5.8.1994 filed by Smt. M. Begum may be treated as application under Order XXI, Rule 97 CPC. and the matter be investigated and adjudicated according to law.

Vide order dated 12.9.1994 the executing Court rejected the applications of Ram Kishore and directed that warrant of possession be executed with the help of police. This order has been assailed by Ram Kishore in Revision No. 1149 of 1994 on the ground that applications were rejected without adjudicating the claim to resistance.

Ram Kishore also instituted civil suit seeking declaration and injunction in the Court of the District Judge Jaipur City, Jaipur along with an application under Order XXXIX, Rules 1 and 2, CPC which was later on transferred to the Court of Additional District Judge No. 3 Jaipur City. The application was allowed vide order dated 31.10.1394, and M. Begum was restrained from dispossession Rain Kishore from the shop in dispute without due process of law and to maintain status quo. M. Begum has assailed this order in Civil Misc. Appeal No. 56 of 1995 on the ground that the impugned order is violative of Section 41(b) of the Specific Relief Act. The said order was perverse and without jurisdiction and it has overlooked the order of the High Court passed in Civil Revision No. 467193 on 25.1.1994.

I have given my anxious consideration to the arguments advanced before me by the learned Counsel for the parties and carefully perused the impugned orders.

In Nooruddin v. Dr. K.L. Anand, (1994) 3 CCC 548, the Supreme Court had occasion to deal with such a situation. The question before the apex Court was as to whether the executing Court was right in dismissing the application on the ground that the dispute was adjudicated in the. writ proceedings referred to earlier? It was observed by the apex Court that when the appellant claimed independent right, title and interest and resisted the execution, the decree holder or the appellant should make an application under Order XXI, Rule 97, CPC and the Court in that event, is enjoined to adjudicate the claim and record a finding allowing or rejecting the claim.

In a recent judgment Babulal Vs. Raj Kumar and Others, the Supreme Court has observed thus:

Where in execution of a decree for specific performance of sale-deed of property the objector who was not party to the decree filed an objection on the ground that he could not be dispossessed, the order of the executing Court overruling the objection holding that since he was not dispossessed, his application under Order XXI, 97, CPC was not maintainable, was illegal. Dispossession of the objector from the property in execution is not a condition for declining to entertain the application. An adjudication is required to be conducted under Order XXI, Rule 98, CPC before removal of the obstruction caused by the objector and a finding is required to be recorded in this behalf.

In the case before me, admittedly, Ram Kishore was not a party to the decree and before the executing Court he moved and application raising objections that the decree could not have been, executed against him. The executing Court dismissed the application on the ground that the property the executing Court could not have interfered in any manner. It was also observed that the reply filed by the decree holder could not have been treated as an application under Order XXI, Rule 97, CPC.

The executing Court was enjoined to adjudicate the claim or the objection or the claim to resistance put forth by Ram Kishore. The application submitted by him under the provisions of Section 151, CPC could have been treated as an Application under Order XXI, Rule 97. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be executed under Order XXI, Rule 98 which is an order and is a decree under Order XXI, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the objector had objected to the execution of the decree.

I am of the view that civil suit instituted by Ram Kishore against M. Begum was not maintainable in view of the provisions contained in Order XXI, Rule 101, CPC which provides that all questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or 99 or their representatives and relevant to the adjudication of the application under Rule 97 or 99 or their representatives and relevant to the adjudication of the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

The order dated 12.9.1994, passed by the Additional District Judge No.7 Jaipur City in execution case No. 21/92 suffers from grave jurisdiction error. The order under Civil Misc. Appeal dated 31.10.1994 suffers from illegality as no temporary injunction could have been issued as the suit itself was not maintainable.

In the result, I allow the revision as well as the appeal and set aside the impugned orders. The matter is remitted to the executing Court to adjudicate the questions raised by the objector Ram Kishore in accordance with law treating his application under the provisions of Order XXI, Rule 97, CPC. Till the decision of the application objector Ram Kishore shall not be dispossessed from the shop in dispute. The record of the case be returned forthwith and parties are directed to appear before the executing Court on 13.12.1996. No costs.