Umajirao vs Ramsaran and Another

Dixit, J.—This is an application in revision against an order of the Civil Judge First Class, lashkar (sic), accepting the non-applicant Ramsaran''s application under Order 21, Rule 100, CPC The cant held a decree for arrears of rent and document (sic) from a house against the non-applicant Lakhmichand (sic). The house belonged to one Rao (sic) Bhonsle. After his death the Court of assumed the superintendence of his estate (sic) let out the house to Lakhmichand under a nya (sic). The suit in which the decree was passed as bassed on the kirayanama executed by Lakhamichand in favour of the Court of Wards. A decree rears of rent and ejectment was passed in fovour of the Court of Wards and against Lakhamichand. It appears that after the passing of this decree the Court of Wards relinquished the management of Rao Saheb Bhonsie''s estate and handed (sic) the property to the applicant recognizing, in (sic) as Rao Saheb Bhonsie''s heir. When Umajirao execution proceedings of the decree, the Milt-debtor Lakhamichand objected to the ruction (sic) of the decree by Umajirao on the ground the relinquishment of the management of Saheb Bhonsle''s estate by the Court of Wards, widow (sic) Indrabai Bhonsle was in possession of property and as such entitled to execute the (sic) that after the passing of the decree Indrabai Bhonsle had realised from him the entire. It (sic) of rent and that she had also obtained (sic) the Judgment-debtor a kirayanama in her (sic).

Indrabai Bhonsle also presented an application in execution proceedings claiming that she was execute the had (sic) to decree. Indrabai''s claim the decree was rejected by the lower (sic) On 25-3-1952 Lakhamichand again prepared (sic) application saying that Indrabai had the arrears of rent from him and inform-Court that he had given up possession of hence (sic). On this very day the non-applicant (sic) executed a Kiravanama in favour of Indrabai (sic) in respect of the house, which was in possession (sic) Lnklmmiehand. In execution of his (sic) Umajirao obtained possession of the house, (sic) on 4 4-1952 Ranisaran presented an on application (sic) to the court complaining that he had dispossessed by Umajirao and that as he was possession of the property as a tenant of Indrabai be put into possession of the property.

The learned Civil Judge inquired into the complaint and held that Ramsaran was in possession of the house as a tenant of Indrabai at the time of the delivery to the applicant in execution of his decree and that therefore the applicant was-not entitled to dispossess Ranisaran from the-house in execution of his decree against Lakhamichand.

The learned Civil Judge rejected the contention, of the applicant that Order 21, Rule 102 was applicable to the present case and that, therefore, Ramsaran was not entitled to any relief under Rules 100 and, 101. Accordingly the learned Civil Judge accepted Ramsaran''s application and directed the Petitioner to restore the possession of the property to Ramsaran.

In my view, in holding that Order 21, Rule 102 was not applicable to the facts of the case, the learned Civil Judge has arrived at a wrong decision. Rule 102 reads as follows:

Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person, to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

This rule recognizes the doctrine of lis pendens and is intended to prevent the judgment- debtor from transferring the possession of the immovable property in dispute to others, pending litigation of the rights to the property, so as to prejudice the opposite party. The transfer of the property spoken on in Rule 102 refers primarily to transfer of possession whether accompanied by a purported transfer of title or not. This is clear from the fact that this rule and the preceding Rules 99 to 101 deal with the question of the restoration of possession of the property to the person who has been dispossessed by the decree-holder in the course of execution and who claims that he was in possession on his own account or on account of some one other than the judgment debtor. A similar view has been taken by the Madras High Court in - Kanagasabhai Pathar Vs. Poornathammal, . In that case it was held that the words "transferred the property" in Rule 102 should be understood In a wide sense so as to include both "transfer of title" as well as "transfer of possession" and that primarily the rule refers to transfer of possession whether accompanied by a purported transfer of title or not.

It is thus plain that for the applicability of Rule 102, it is not necessary that the judgment-debtor should have executed any conveyance, in favour of the person dispossessed. Nor is it necessary that the judgment-debtor should have assigned or transferred any title to the property to the person claiming the restoration of possession of the property. If the judgment-debtor has done any act which in effect amounts to a transfer of possession of the property to such a person, then Rule 102 would apply. In the present case the judgment-debtor Lakhamichand who was in possession of the property at the time when the Petitioner applied for execution of the decree for arrears of rent and ejectment, resisted the execution proceedings on the ground that he had paid the amount of rent to Indrabai and that after the passing of the decree he had also executed a kirayanama in her favour. Later on the judgment-debtor informed the Court on 25-3-1952 that he was no longer in possession of the house. On this very date the non-applicant Ramsaran executed a kirayanama in favour of Indrabai.

There can, therefore, be no doubt that when the judgment-debtor Lakhamichand quitted the house, .he voluntarily relinquished possession in favour of Indrabai. The learned Civil Judge has said that there is no specific evidence that the judgment debtor Lakhamichand surrendered possession of the .property to Indrabai. While recognizing that on the circumstances referred to above the inference that Lakhamichand relinquished possession in favour of Indrabai could be drawn, the learned Civil Judge went on to say that there was also the possibility that Indrabai herself might have forcibly dispossessed Lakhamichand. The view taken by the learned Civil Judge is altogether untenable, because there is no indication whatsoever in the objections raised by Lakhmichand or the non-applicant Ramsaran or Indrabai that she herself dispossessed Lakhamichand and then let out the house to Ramsaran. On the other hand the attitude which Lakhmichand took in the execution proceedings and the objections raised to the execution of the decree unmistakably point to the conclusion that he voluntarily surrendered possession of the- house to Indrabai.

When Lakhmichand raised the objections that Indrabai was entitled to execute the decree and that he had executed a kirayanama in her favour, and when on the very day on which Lakhmichand vacated the house, the non-applicant Ramsaran executed a kirayanama in favour of Indrabai, to hold that the disappearance of Lakhmichand from the scene altogether saying nothing and making no arrangement about possession of the house under the Kirayanama executed by him in favour of the Court of Wards, does not constitute a voluntary surrender of the possession to Indrabai, is to recognize and encourage arrangements about the possession of the property between the judgment-debtor and third party for keeping out the decree-holder from the possession of the property. In my judgment, on the facts and circumstances of the present case it is clear that Lakhmichand transferred the possession of the property to Indrabai. That being so, Rule 102 applies to the facts of the case and the remedy under Order 21, Rule 100 cannot be availed of by the non-applicant Ramsaran.

In the order of the lower court is set aside and the application of Ramsaran under Order 21, Rule 100 is dismissed with costs in both Courts.