Velmurugan vs Haridas and Others

K. M. Natarajan, J.—This revision is directed by the decree-holder against the order in EA. No. 1241 of 1985 in E.P. No. 83 of 1985 in

O.S. No. 832 of 1982 passed by the District Munsif, Tirukovilur. The facts which are necessary for the disposal of this petition can be briefly

stated as follows:

The revision-petitioner herein and his father Singaravelu Iyer filed a suit in O.S. No. 832 of 1982 for redemption of the equitable mortgage

executed in favour of one Sivalingam Pillai, who is the husband of the first defendant and father of defendants 2 to 8 in the suit and obtained a

decree for redemption. In execution of the said decree, they filed E.P. No. 83 of 1985 against the judgment-debtors. Thereupon, respondents 1 to

3 herein filed a petition in EA. No. 1241 of 1985 u/s 47 read with Section 151, C.P.C. to set aside the order regarding delivery passed in the E.P.

The case of the respondents 1 to 3 is that the property described in A Schedule and the eastern one cent. originally belonged to three brothers,

namely, Kadirvel, Sivanathabadam and Singaravelu Iyer, the first plaintiff (father of the revision-petitioner). In the oral partition between them,

Kadirvel got 13 cents on the western side, Sivanthabadam got the middle 15 cents and the first-plaintiff-first respondent in the EA. got the eastern

3 cents. Sivanthabadam sold his share to Sivalingam Pillai and Narasingamoorthy Pillai on 6.9.1952 and Kadirvel sold his share on 22.12.1953 to

these two persons and thus, they became entitled as owners of 28 cents. Narasingamoorthy Pillai released his share in favour of Sivalingam Pillai

on 24.8.1963. The first plaintiff (father of the revision-petitioner) was entitled only to 3 cents of land. Sivalingam Pillai constructed a rice mill and

put up a construction annexing 2 cents of land belonging to the first plaintiff Singaravelu Iyer and that he was in actual possession and enjoyment of

the same. The remaining 1 cent was set apart for access to the first plaintiffs lands on the northern side. Sivalingam Pillai died in 1971 and

thereafter his legal representatives, who are the defendants 1 to 4 in the suit enjoyed the same and they perfected title. His sons (Respondents 4

and 5 in E.A. and respondents 5 and 6 in the revision) mortgaged A Schedule property to one Thulasi Ammal for Rs. 9,000. Thereafter,

respondents 3 to 7 in the EA. sold the same on 17-6-1982 for Rs. 40,000 by a registered sale deed in favour of respondents 1 to 3 herein

(Petitioners in EA.) and also the machineries for a sum of Rs. 20,000 by issuing a sale receipt. They also discharged the decree debt in O.S. No.

687 of 1978 and also discharged the mortgage obtained by Thulasi Ammal Subsequently they also hypothecated the property for the purpose of

expanding their business and putting up additional construction. They are in actual possession of the A Schedule property. While such being the

case, a decree for redemption and for recovery of possession was obtained by the revision-petitioner herein and his father against respondents 3 to

10 in the E.A. in respect of the B schedule property which is a part of the A schedule property. There is no such B schedule property separately in

existence. Without impleading respondents 1 to 3 herein in the plaint, the decree is not valid and the decree is not executable and they are entitled

to resist the delivery as they are in possession. Hence, they prayed for setting aside the order for delivery in the execution petition.

The said application was resisted by the revision petitioner herein and his deceased father and in their counter, it is stated that as per the partition

between the brothers, the first respondent-first plaintiff got 15 cents on the east while Sivanthabadam and Kadirvel each got 8 cents on the west

and middle portion. The alleged purchase from Kadirvel and Sivanthabadam and the alleged construction and enjoyment by Sivalingam Pillai are

false and respondents 1 to 3 are put to strict proof of the same. Further, they filed a suit in respect of the B schedule property with reference to the

equitable mortgage dated 17.9.1969 for Rs. 2,000 against the heirs of Sivalingam who were enjoying 15 cents and by virtue of the Debt Relief

Act, they got redemption as the debt is deemed to have been discharged. They are en-titled to execute the decree and respondents 1 to 3

(petitioners in E.A.) can have no objection to the same. Further, respondents 4 to 11 have no right to execute sale deeds. The petition u/s 47,

C.P.C. is not maintainable.

A commissioner was appointed and his report and plan were marked as Ex.Cl and C2. On the basis of the oral and documentary evidence, the

executing court came to the conclusion that the petition under Sections 47 and 151, C.P.C. is maintainable and also came to the conclusion that the

property described as B schedule is the subject matter of the decree and that the property covered under the sale deed and the decree is one and

the same and allowed the application. Aggrieved by the same, this revision is filed.

Learned counsel appearing for the revision petitioner mainly contended that the very provision of Section 47, C.P.C. does not apply to the case

of respondents 1 to 3 and that their remedy is only to file a suit. On the other hand, the learned Counsel for the contesting respondents submitted

that they are the representatives of the judgment-debtor and that with regard to the dispute regarding identity of the property, the petition u/s 47,

C.P.C. is maintainable; even otherwise it is maintainable u/s 151, C.P.C. Various decisions were cited on behalf of both parties in support of their

contentions.

It is not in dispute that respondents 1 to 3 herein, who are the petitioners in E A. No. 1241 of 1985, claimed independent title to the property

through the legal representatives of one Sivalingam Pillai, and their contention is that the decree O.S. No. 832 of 1982 is not valid as they are in

possession. Hence, they prayed for setting aside the order for delivery in the execution petition. From the very allegations made in the petition, It

cannot be said that they are the judgment-debtors or the representatives of the judgment-debtors and as such, they are not entitled to invoke

Section 47, Code of Civil Procedure, which contemplates decision in respect of questions arising between the parties to the suit or their

representatives and not in respect of third parties. The learned Counsel for respondents 1 to 3 submitted that, as observed by the lower court,

even though the petitions not maintainable u/s 47, C.P.C. it is maintainable u/s 151, C.P.C. and they can resist delivery u/s 151, C.P.C. in

anticipation of their dispossession in execution of the said decree. The question whether a third party is entitled to resist an order for delivery

before it is executed was the subject matter of several decisions of various High Courts. In Smt. Usha Jain and Others Vs. Manmohan Bajaj and

Others, it has been held:

The executing court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder auction-

purchaser under Order 21, Rule 97. This rule is merely permissive and not mandatory so that the decree-holder/auction-purchaser need not resort

to it against his will and may even apply for a fresh warrant under Order 21, Rule 35, C.P.C. Executing Court is not bound to stay its hands the

movement a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder/auction-purchaser is forced to

apply for investigation into the right or title claimed by the third party and negative the claim therein. If the executing Court were to stay its hands till

investigation into a third party''s claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated

spurious claims.

It has been further held:

No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96

of Order 21, C.P.C. when the decree-holder or the auction-purchaser applies for obtaining possession. Subsequently when the decree-holder or

auction-purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under Rule 97 but that

provision is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser to apply instead for a fresh warrant of

possession. An enquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100 after he was dispossessed and

not before it.

Even in that case, it was observed:

Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of

temporary injunction to protect his possession.

The above view was followed in Mohammed Shareef and Others Vs. Bashir Ahmed and Others, . In K.A. Prabhakaran Vs. Kuttian Prakashan

and Another, a Division Bench has held as follows:

A plain reading of Order 21, Rules 97, 98, 99, 100 and 103 makes it clear that no application for adjudication of the right, title and interest of an

obstructor would lie before he is dispossessed in execution of a decree to which he is not a party. If however, he is dispossessed, he is given

remedy under Order 21, Rule 99 to apply for restoration of possession to the execution Court. The execution Court on such application is

required to adjudicate the question of the right, title and interest of the dispossessed obstructor and pass appropriate orders under Rule 100. No

application under Order 21, Rule 97 would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree for

eviction to which he is not a party.

In Smt. Sona Devi and Others Vs. The District Judge, Allahabad and Others, the view taken in the above quoted decisions Smt. Usha Jain and

Others Vs. Manmohan Bajaj and Others, and K.A. Prabhakaran Vs. Kuttian Prakashan and Another, was followed and it was held:

In view of the decisions of various High Courts noted above, it appears that the objection filed by the third party i.e., the petitioners in the present

case was rightly held by the Court below as not maintainable till they have been dispossessed from the premises which constitutes the subject-

matter of the decree and it has been held that if the executing court were to stay its hands till investigation into third party''s claim is not finally

decided then it would result in depriving the decree-holder of his possession by filing repeated sprurious claim.

In the above quoted case, it was noticed that the petitioners have also filed a regular suit and moved for injunction. In the circumstances, it was

held that the petition is not maintainable. In Mohammad Akhtar and Others Vs. Ramhars Chaturvedi and Another, , the above view was reiterated

and it was held:

From a plain reading of Order 21, Rule 99 of the Code, it is evident that when a person other than a judgment-debtor is dispossessed of the

immovable property, such a person (other than the judgment-debtor) may make an application under the aforementioned provisions complaining of

such dispossession only when he is dispossessed therefrom.

The word ''dispossession'' in the teeth of the said provision must be held to mean actual dispossession; even if a symbolic possession is effected to

the auction purchaser the same would not amount to dispossession unless the judgment-debtor himself was in such symbolic possession of the

property in question and auction purchaser is given delivery of the applicant''s right of such possession.

It is also worth while to quote Order 21, Rule 99, C.P.C. (Madras amendment) and it reads as follows:-

Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than those mentioned in Rule 98) claiming in

good faith to be in possession of the property on his own account or an account of some person other than the judgment-debtor, the Court shall

make an order dismissing the application.

Order 21, Rules 97 to 101, C.P.C. deal with resistance or obstruction of delivery of possession of immovable property to the decree-holder of a

decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree, by the judgment-debtor as

well as third party who claimed independent title. It is also to be noted that after the amendment of the CPC in 1976, a full investigation into the

question of title is contemplated under Rule 97 and not a summary enquiry. Therefore, it would cause greater hardships to the decree-holder, if

every claim by the third party is to be investigated by the executing Court, even before warrant is sought to be executed. As pro-. vided under

Order 21, Rule 97 to 101, C.P.C., it is open to the third party who claims independent title and possession on his own account or on account of

some person other than the judgment-debtor, to resist or obstruct delivery, and in that case it is open to the decree-holder or the purchaser in

court auction to apply under Order 21, Rule 97, C.P.C. and on such application notice to the obstructor should be given giving him opportunity to

raise his contention and it would be decided under Order 21, Rule 101, C.P.C. Even if the third party is wrongfully dispossessed it is open to him

to file a petition complaining such dispossession under Order 21, Rule 99, C.P.C. and that it would be tried as if it was a suit.

On the other hand, the learned Counsel for respondents 1 to 3, Mr. R.S. Venkatachari relied on the decision reported in Tahera Sayeed Vs. M.

Shanmugam and Others, where a learned single Judge has held:

When the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually

dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the court as

caveat to the decree-holder or purchaser or a person claiming through him and the Court is to treat it as a complaint or a counter in opposition as

an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the

parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior

pending suit under Rule 104. This approach is consistent with ubi jus ibi remedium, shortens the litigation and prevents needless protraction and

expenditure. Accordingly, application under Order 21, Rule 97 is maintainable.

The learned judge has also held:

Even otherwise, the inherent power u/s 151 also can be successfully invoked by the petitioner. Order 21, Rule 97 if interpreted strictly, could be

available only when the decree-holder or purchaser chooses to make avail of.

The learned judge while doing so, dissented from the view expressed by the Full Beach decision, Smt. Usha Jain and Others Vs. Manmohan Bajaj

and Others, and the Division Bench decision in K.A. Prabhakaran Vs. Kuttian Prakashan and Another, . The learned Counsel for respondents 1

to 3 submitted that in the said decision, Tahera Sayeed Vs. M. Shanmugam and Others, , there is reference to the Full Bench decision of this Cowl

reported in Abdul Aziz v. Chokkan 69 M.L.J. 821: AIR 1935 Mad. 803 (F.B.)and that the decision of the Andhra Pradesh High Court is in

consonance with the above Full Bench decision of the Madras High Court. On a careful reading of the decision in Abdul Aziz v. Chokkan 69

M.L.J. 821: AIR 1935 Mad. 803, (F.B.), I find that the said decision is not helpful to the case of respondents 1 to 3. It is worthwhile to quote the

ratio laid down in that decision for the appreciation of the contention of the learned Counsel for respondents 1 to 3.

It was held therein:

Where a decree-holder-purchaser seeks delivery of possession of an item of property and if the judgment-debtor obstructs, the decree-holder

should make a complaint under Order 21, Rule 97, Civil PC. and the matter must be disposed of in execution. If the judgment-debtor and a third

party both obstruct, the decree-holder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under

Order 21, Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent, raises no objection and makes no

opposition either before the Amin or before the Court, but a third party objects and on account of the thirds party''s objection physical possession

of the property cannot be given, it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be

capable of so far as the judgment-debtor is concerned.

It is also observed:

It is always better that this formal procedure is observed; otherwise in a regular suit which the purchaser has to bring against the obstructor, the suit

being necessitated by his obstruction only, the judgment-debtor may have to be made a formal party and then objection may be raised that so far

as he is concerned, a regular suit does not lie, execution not being complete against him. The obvious reply is that delivery could not be completed

not on account of any obstruction by the third party. So far as he is concerned, there is nothing more remaining with him to be delivered and

therefore the execution proceedings are complete and there is no bar to a regular suit.

It is nowhere held or observed in the said decision that a third party can file a petition u/s 151, C.P.C. even before the warrant of delivery is sought

to be executed and that on the other hand, it is only in consonance with the provision of Order 21, Rule 97 to 101, C.P.C. and the views

expressed in the decision of various High Courts other than the one in Tahera Sayeed Vs. M. Shanmugam and Others, . Thus, on a careful analysis

of the relevant provisions of the CPC and the various decisions, it is clear that the third party''s remedy under Order 21, C.P.C. is to raise

objection at the time of execution of warrant and if the decree-holder does not avail to remove the obstruction under Order 21, Rule 97, C.P.C.

and in spite of the objection, the third party is illegally or wrongfully dispossessed, he can approach the Court under Order 21, Rule 99, C.P.C. for

necessary relief of restoration of possession. He can also protect his possession to the execution of the decree on the basis of his independent title

and possession, by filing an independent civil suit and obtaining temporary injunction. But, the question of filing an anticipatory petition u/s 151,

C.P.C. is not one contemplated under the provisions of the C.P.C. and in view of the amendment of Order 21, C.P.C. in 1976, a full investigation

on the question of title is contemplated only under Order 21, Rule 101, C.P.C. and not by way of summary enquiry. As such, allowing a third

party to file a petition u/s 151, C.P.C. against the order for delivery even before it is implemented would certainly cause great hardship to the

decree-holder as rightly observed by the Full Bench of the Madhya Pradesh High Court quoted above. Thus, for all these reasons, I have no

hesitation in holding that respondents 1 to 3 are not entitled to maintain the application either u/s 47 or u/s 151, C.P.C., and on that ground alone

the petition is liable to be dismissed.

Since this Court has taken the view that the very petition filed by respondents 1 to 3 u/s 47 and 151, C.P.C. is not maintainable, it is needless to

go into the merits and demerits of the respective contentions of both parties as it would prejudice the case of either parties in the proposed action

to be taken by respondents 1 to 3 by instituting a separate suit and also moving for interim relief. Hence, no opinion is expressed on the merits and

demerits of the contentions of either parties.

In the result, the revision is allowed, the order passed by the court below in E A. No. 1241 of 1985 is set aside and consequently the said

petition is dismissed. However, it is open to the contesting respondents 1 to 3 to institute necessary proceedings on the basis of their title and

possession if so advised. There will be no order as to costs.