Syed Abdut Hakim vs Mangal Chand and Another

Wort, J.—In this case the point that falls to be determined is the meaning of Order 21, Rule 103, Civil P.C. which provides:

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

An order was made against the plaintiff who is the appellant in this case in the following circumstances: The plaintiff was the assignee of a decree obtained by the Allahabad Bank against defendant 2. He proceeded to execute the decree by selling the property which was the subject-matter of this action and in the result purchased the property and obtained possession. Defendant 1, who is the respondent in this appeal, was a usufructuary mortgagee of the property under a mortgage dated 20th October 1920.

On the next day he gave possession to the mortgagor and allowed him to remain in possession by granting him a lease. In course of time that lease came to an end and the defendant brought an action against defendant 2 who was the mortgagor. In the meantime as I have already indicated the plaintiff, appellant obtained possession and he was resisted in his possession by the defendant-respondent. The defendant-respondent moved the Court under Order 21, Civil P.C. and an order was made in his favour and possession was given to him. In those circumstances the plaintiff brought this action.

The learned advocate who appears on behalf of the appellant, in his argument against the judgment of the learned Judge in the Court below, has contended that all he is bound to show is his right to possession by reason of the execution of the decree and the delivery of possession given to him by Court. The learned Judge, as I have perhaps indicated by the observation which I have already made, has held that the plaintiff is not entitled to possession. There was one contention in the Court below that the plaintiff was the mere benamidar of the judgment-debtor (defendant 2), but that point has been held in favour of the plaintiff-appellant. Now the position is a simple one. The plaintiff when he purchased in execution of the decree which had been assigned to him, purchased the mere equity of redemption: therefore he purchased such rights as his judgment, debtor had and no more and he purchased those rights subject to the rights of the usufructuary mortgagee. It matters not at all whether we consider defendant 1 as the lessor who has obtained a decree for; possession against his tenant, or whether; we consider him as having obtained that decree by reason of his position as a usufructuary mortgagee. The fact remains that he obtained possession because the lease; came to an end by the effluxion of time, There is no doubt that the usufructuary; mortgagee was entitled to possession; the mortgagor was not entitled to possession,; and by his purchase the plaintiff could not j get more than the mortgagor himself was entitled to. That in my judgment disposes; of the matter. As to the scope of Order 21, Rule 103, Civil P.C. there is authority in Unni Maidin v. Pocker A.I.R.1921. Mad. 317. There the learned Chief Justice in course of the judgment said:

The Subordinate Judge allowed the appeal and decreed the suit, holding that the plaintiff having, as he found, been in possession at the date of the order under Rule 98, could not be ousted in execution of a decree to which he was not a party, and that under the Rule the Court was concerned with possession only. The view that in a suit of this, kind the Court has merely to ascertain whether the plaintiff was in possession at the date of the order against him under Rule 98 is based on a misconception of the scope of this Rule. If he was, then the Court ought not to have passed the summary order against him under Rule 98 but ought to have dismissed the decree-holder''s application against him under Rule 99.

The Rule reads: "the right which he claims to the present possession of the property." The contention of the learned advocate for the appellant that his client was ousted from the property he purchased is in my view quite irrelevant. He may have been ousted by force, but not as a result of the decree of the Court. The question is what right he had when he got the property back, had he any title to it. The answer which the learned advocate for the respondent gives is a correct one namely that he had no title.

For those reasons it seems to me that the appeal fails and must be dismissed with costs.

Rowland, J.

I agree. In answering the question propounded it may perhaps assist if we contemplate the consequences of a contrary decision, for, at first sight it may appear an attractive supposition that seeing the duty of the executing Court under Rule 98 or Rule 99, that duty is to refuse to give the decree-holder possession in these execution proceedings if possession is resisted by a person claiming possession in good faith on his own account.

Now the plaintiff, it has been held, was such a person and if the Munsif in the execution proceedings had so held the Munsif ought to have dismissed the application of the decree, holder to be given possession of the property. So Mr. Syed Ali Khan argues, what the Court dealing with the title suit ought to do is the same as what the executing Court ought to have done.

But the consequences of this would be that the present title suit would be decided in favour of the plaintiff and defendant 1, who has been held to be a usufructuary mortgagee, would be defeated in a title suit for the right to possession over the land and this decision would be res judicata in any subsequent suit by him to declare and give effect to his title.

It seems inconceivable that the Legislature should have contemplated or intended such a result and therefore I agree for this reason as well as those given by my learned brother that the appeal should be dismissed with costs.