Sri Krishna Dutta vs Vishwanath and Others

K.N. Srivastava, J.—This is an appeal by the unsuccessful plaintiff-appellant, arising out of the following facts:

The plaintiff is said to be the auction-purchaser of the disputed property. He was resisted by the contesting defendants in giving the delivery of possession. The plaintiff then filed an application under order XXI Rule 97, CPC that the resistance was being caused by the contesting defendants on behalf of the judgment-debtor and at his instance. This application was dismissed as barred by time. Thereupon, the plaintiff filed a suit, as provided under order XXI, Rule 103, Civil Procedure Code. The trial Court dismissed the plaintiff''s suit holding that Order XXI, Rule 103, CPC did not apply to the facts of the case and the suit should not have been filed under the aforesaid provision. The appeal filed by the plaintiff was also dismissed by the lower appellate court. Hence, this second appeal.

The main question for determination in this appeal is as to whether the application under Order XXI, Rule 97, CPC gave a right to the appellant to bring a suit under Order XXI, Rule 103, Civil Procedure Code.

In order to attract the provisions of Order XXI, Rule 103, Civil Procedure Code, one has to see the provisions of Order XXI, Rule 98 and Order XXI, Rule 99, Civil Procedure Code. Under Order XXI, Rule 98, CPC when the court is satisfied that resistance or obstruction was occasioned without any just cause by the judgment-debtor or at his instance, It shall direct that possession be delivered to the applicant. Order XXI, Rule 99, CPC provides that when the court is satisfied that resistance is by a third person under a bona fide claim then the application under Order XXI, Rule 99, CPC shall be rejected. In the Instant case, there was no order under Order XXI, Rule 99, CPC Which could give rise to a suit under Order XXI, Rule 103, Civil Procedure Code.

Learned counsel for the appellant contended that the dismissal of the objection under Order XXI, Rule 97, CPC on the question of limitation was a decision on merits and, therefore, the suit was competent under Order XXI, Rule 103, Civil Procedure Code. The question is not as to whether the order was on merit or not. But, the question is as to whether the dismissal of such an objection on the question of limitation would amount to dismissal of the objection under Order XXI, Rule 99, Civil Procedure Code. As there was no satisfaction of the court that the objection was made by a third person, therefore, it cannot be said that the order passed was one under Order XXI, Rule 99, Civil Procedure Code. The objection was dismissed under the rule of limitation.

Learned counsel for the appellant relied on the observation made in a Division Bench case in Divisional Superintendent, Northern Railway Vs. Hukum Chand Jain, . The observation made in this case reads as below:--

"With great respect, we are unable to subscribe to this view. A decision which has the effect of reviving a right or a remedy which but for that decision, would no longer be enforceable must in our opinion be regarded as affecting the merits of the case."

The decision might affect the merits of the case. But would it also mean that this order would give rise to a suit under Order XXI, Rule 103, Civil Procedure Code. In my opinion, an order passed on an application under Order XXI, Rule 97, CPC would only give rise to a suit under Order XXI, Rule 103, CPC if the order conforms with the provisions of Order XXI, Rule 98, CPC or Order XXI, Rule 99, Civil Procedure Code. Dismissing an application on the ground of limitation is one thing and dismissing it on being satisfied that the resistance is by a third person, as provided under Order XXI, Rule 99, Civil Procedure Code, is another thing.

Similar view was taken by a Single Judge of this Court in Bahadur Khan Vs. Bari Tala and Another, .

Learned counsel for the appellant relied on a decision of the Mysore High Court in S. M. Papiah v. K. N. Papaiah AIR 1959 Mys 169. The reasoning given in this case is based on the decision of this Court in Bahadur Khan''s case. In this case the Single Judge of the Mysore High Court did not consider the provisions of Order XXI, Rule 98, and Order XXI, Rule 99, CPC in the above light Besides this, the view which I have taken is supported by a decision of this Court and also by a decision of the Gujarat High Court in Vasudev Devnath Pandya Vs. Karsan Kamshi Bharwad, .

The lower appellate court, therefore, correctly held that the suit was not one under Order XXI, Rule 103, CPC and the appeal filed by the plaintiff-appellant was rightly dismissed.

During the course of the arguments, an application for amendment was made for bringing the suit under the General Law, but the same has been rejected by me for the reasons given in that application.

In the result, the appeal fails. It is hereby dismissed with costs.