Sk. Wasi Ahmad and others vs Shanteshwar Mishra and others

S.N. Jha, J.—This second appeal by the defendants arises out of a suit for declaration of title and a further declaration that the auction sale of the property in an execution proceeding and the order passed in a miscellaneous case are illegal, void and inoperative. The facts relevant to the question raised are that the plaintiff filed application under Order XXI Rule 100 of the CPC (in short, ''the Code''), as it stood prior to its amendment by Act 104 of 1976 complaining of illegal dispossession, which was dismissed on November 21, 1977. The suit in terms of Rule 103, as unamended, was instituted on October 6, 1978. The suit was dismissed, by the trial court but has been decreed by the first appellate court holding that it was maintainable and the plaintiff was entitled to declaration of his title and recovery of possession. Mr. Wasi Akhtar, Learned Counsel for the appellants raised a short point. He submitted that by reason of the amended provisions, the suit was not maintainable and, therefore the decree is without jurisdiction.

It would be appropriate at this very stage to refer to the relevant provisions. The Code underwent substantial changes by Amendment Act 104 of 1976 (in short ''the Amendment Act'') which came into effect on February 1, 1977. The scheme of the Code as it stood before its amendment, so far as it is relevant to the instant case, was that if a person other than the judgment-debtor was dispossessed in execution, he could apply under Rule 100 of Order XXI. If the executing court found that the applicant was in possession on his account or on account of some person other than the judgment-debtor, the court would allow the application and put the applicant in possession under Rule 101. Rule 103 which made the orders passed, inter alia, under Rule 101 conclusive subject to regular suit, provided that:

Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property but subject to the result or'' such suit (if any), the order shall be conclusive.

Section 72 of the Amendment Act sets out the amendments made in Order XXI. Old Rules 98 to 103 have been substituted by the new rules. The scheme of new rules is that all questions of right, title or interest arising for consideration in an application under Rule 97 (new) or Rule 99 (new) are to be determined finally by the executing court and not by a separate suit, and an order disposing of such an application has the force of a decree and is appealable. It may be mentioned that new Rule 99 corresponds to old Rule 100. For easy reference, new Rules 101 and 103 may be noticed in extenso :

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, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdication to decide such questions. 103. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the conditions as to an appeal or otherwise as if it were a decree.

It would appear that there was some controversy as to whether the executing court could decide the question relating to right, title or interest. In order to set at rest the controversy and to secure expeditious adjudication of the dispute between the parties to proceeding under Rules 97 or 99, such a jurisdiction was conferred upon the executing court to the exclusion of suit, notwithstanding anything to contrary contained in any other law for the time being in force.

Mr. Wasi Akhtar submitted that the right of suit available to the aggrieved party under Rule 103 was no longer available after the Amendment Act came into force on February 1, 1977. Since the application of the plaintiff under old Rule 100 was rejected on November 21, 1977, i.e. after the new provision came into force, the suit under old Rule 103 was not maintainable, Mr. Narmdeshwar Jha, Learned Counsel for the plaintiff, on the other hand, submitted that the right of suit is a vested right and, therefore, the miscellaneous case under Rule 100 having teen filed prior to coming into force of the Amending Act, this right survived even after the amendment. In other words it was submitted that notwithstanding the provisions as contained in new Rules 101 and, 103, it was competent for the plaintiff to institute the suit in terms of the provisions of old Rule 103. It was also submitted that if this right is taken away from bona fide transferees of the property, they will be rendered remediless resulting in injustice.

The answer to the question lies in the ''Repeal and Savings'' provisions contained in Section 97 of the Amendment Act. Sub-section (1) thereof provides that any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of the Amendment Act shall, except in so far as such amendment or provision is consistent with the Principal Act, as amended by it, will stand repealed. Sub-sections (2) and (3) so far as relevant and material for this case, read as follows :

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897�

(a) .......

(q) the provisions of Rules 31, 32, 48-4, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, substituted or inserted by Section 72 of this Act shall not apply to or affect�

(i) any attachment subsisting immediately before the commencement Of the said Section 72, or

(ii) any suit instituted before such commencement under Rule 63, aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force;

(3) Save as otherwise provided in subsection (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commenment, notwithstanding the fact that the right, or cause of action, in pursuance of which suit proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.

A bare perusal of the provisions makes it abundantly clear that the Amended provisions of Rules 98 to 103 have overriding effect unless the case comes within any of the three categories. In other words, the Amended provisions will not apply to or effect any attachement subsisting immediately before the commencement of the Amended provisions or any suit or proceeding instituted before such commencement to establish possession under Rule 103 or any proceeding to set aside the fate of immovable property. Except incases falling in any or these categories, suit or the proceeding, as the case may be, shall be governed by the amended provisions. Counsel for the plaintiff to point out that the instant case comes in any of the categories.

A Division Bench of the Madhya Pradesh High Court in Dattatray Vs. Mangal and Another, , had occasion to consider an identical question as to whether (on the facts of the case) a right of suit under old Rule 103 of Order XXI can be said to have arisen and preserved by Section 97 (2) of Amendment or Section 6 of the General Clauses Act. It was observed:-

Under, Rules 98 and 101 as amended the executing Court had jurisdiction to deside all questions of right, title or interest in disposing of the application under Rule 97 and the order allowing the application was appealable under Rule 103. Such an order could not be challenged by filing a suit under the old Rule 103 because the right to institute a suit under that rule did not accrue before the commencement of the Amendment Act and was not preserved.

Counsel for the plaintiff placed reliance on Shesh Kumar Pradhan Sheshdeo Vs. Keshbo and Others, . In that case, the claim petition had been decided on January 23, 197, i.e. before the Amendment Act came into force. It was held, and in may respectful opinion, rightly, that right of suit under old rule 100 had accrued the party against whom the claim application was decided, and the right could not be affected by the Amendment Act, therefore the suit although instituted after its commencement, was maintainable. This case was noticed in Dattatray (supra) and distinguished.

The facts of the instant case are almost identical to those of Dattatray (supra) and the ratio laid down therein applies on all fours. The application under Rule 100 having been dismissed well after coming into force of the Amendment Act, it cannot be said that right of suit under old Rule 103 had accrued to the plaintiff. The Apex Court in Sawai Singhai Nirmal Chand Vs. Union of India, , has held that suit under XXI Rule 63 (old) is not a continuity of proceeding. The same principle would apply to suit under Order XXI, Rule 103 (old). Besides, it is well established principle of law that remedy�whether by way of suit, appeal or other wise is a creature of statute and can be taken away by the statute. In the result, the suit instituted by the plaintiff, namely, Title Suit No. 110 of 1978 is held to be not maintainable. Consequently, the judgment and decree under appeal are set aside and the suit is dismissed. This appeal is, accordingly, allowed but without any order as to costs.