Sarva Prakash Anand vs Jugal Kishore and Others

Guman Mal Lodha, J.—This is a decree holder''s appeal against the judgment rejecting his application under Order 21, Rule 97 CPC, and accepting the appeal filed by the obstructor, namely Jugal Kishore, the respondent No. 1, and, reversing the judgment of the Executing Court. The Executing Court has held that Jugal Kishore was holding possession on behalf of the judgment debtor Babulal and he cannot be allowed to obstruct the execution of the decree against Babulal.

The learned Additional Civil Judge, Ajmer, has accepted the appeal of Jugal Kishore on the ground that though he was paying the rent of this shop in dispute upto 1960 on behalf of Babulal, the judgment debtor, but, there is no evidence that after that he continued in the same capacity. It has been further observed that all that was required to be sent for an enquiry under Order 21, Rule 97 or Order 21, Rule 100, CPC, about his possession and not right or title.

Shri D.L. Bardar has invited my attention to Rule 101 of Order 21 CPC which reads as under:

Rule 101--Question to be determined: All questions (including questions relating to right title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, not with standing any thing to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

The above rule clearly mentions that the question to be determined include right, title or interest in the property and separate suit is barred.

Shri Bardar has also invited my attention to the judgment of this court in Ganga Ram Vs. Devi Singh and Others, where in has been held that whereas an application is made for obtaining police help for removal of obstruction then no inquiry is necessary. Paras 13 & 14 read as under:

In Smt. Shri Devi Vs. Kashiram and Others, it was observed as under:

"So far as providing of police help is concerned, I may observe that if at the time of executing the decree, there is likelihood of breach of peace, then the officer executing the decree may avail the police assistance directly from the concerned police station or may approach the court of provide the police aid. The Court may provide aid only when such a situation, arises at the spot, where is likelihood of breach of peace. That stage has not reached so far in the present case, as it is not reported by the Nazir that there is likelyhood of breach of peace, so at the present stage, of the case, the question of use of force may not arise. However, 1 may make it clear that the above observation has only been made for the guidance. So far as the impugned order is concerned, the learned Munsif has observed that Smt. Shri Devi would not be put out of possession of the property forcibly, in case it is found that she is in occupation of the property independently. As that investigation is not required so it will be open to the learned Munsif to consider the question of providing the police help if such an eventuality arises."

I may further state that in Ibrahim v. Phool Chand 1960 RLW 618, it has not been considered as to what is, the nature of their provisions whether the provision is mandatory or an enabling or permissive one and whether the court can direct the decree holder to move the application under Order 21, Rule 97, CPC and whether the court can stay the execution proceedings when the decree holder does not move an application under the aforesaid provision. Without adverting to these questions, the observations have been made that the court cannot pass an order directing delivery of possession by the use of force unless the decree holder moves an application under rule 97 of Order 1 and a decision is given in his favour on this application after issuing notice to the person obstructing the delivery of possession. The view appears to be per incuriam. Besides that in that case the obstructionist claimed to be in possession of the property as owner. But it is not so in the present case. Nothing has been shown by the petitioner as to how he is in possession and what is his right, title and interest in the premises in question.

On a thoughtful consideration of the submission of Shri Barder and on perusal of the relevant record shown by Shri Bardar I am of the opinion that the first appellate court has committed serious error of law in accepting the appeal merely on the ground that after 1960, it has not been shown in what capacity Jugal Kishore was in possession of the shop in question. The Executing Court has clearly discussed the'' entire evidence and the facts and circumstances of the case, and observed that Jugal Kishore was depositing the rent on behalf of Babulal and he had no independent right, title or interest in the shop. Since the rent was being paid by Jugal Kishore on behalf of Babu Lal continuously, therefore, the same would be presumed unless the contrary is shown. The capacity of Jugal Kishore as an agent of Babu Lal who was nobody else but was his brother cannot be disputed unless, it is shown that Jugal Kishore was having right, title or interest independent of Babu Lal in the property. Obviously, the property belongs to the decree holder and the defendant Judgment-debtor were tenants and the rent was being paid for the tenancy of Babu Lal by Jugal Kishore as they were brothers. That being so, merely because, some licences of running a business dealing in some articles, in the shop are produced in the name of Jugal Kishore, it cannot be said that such licences has created any right, title or interest in the property of the shop, itself. The licenses only show that Jugal Kishore was authorised to deal with in a particular business. The licences are not given either under any Shop Act or Special Act or under such clause for creating right, title or interest in the shop on the premises of any third persons. Such licences only authorised them to do the business.

In view of the above, the finding of the first appellate court is obviously erroneous and against law.

In the result, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the Additional Civil Judge, Ajmer, is set aside, and that of the Executing Court is restored and upheld.

Since no one has appeared on behalf of the respondents, the parties would bear their own costs.