JUDGMENT
S.B. Sinha, J.
1. This civil revision is directed against an order dated 15.4.1988 passed by Shree S. Kumar, Munsif, 2nd Court, Bliagalpur in Miscellaneous Case No. 7 of 1988 arising out of Execution Case No. 14 of 1985.
2. Shorn of all unnecessary details the facts of the case are as follows:
The decree holder opposite party had obtained a decree against the second party-opposite party in title Suit. Nos. 41/43 of 1968/1975. By reason of a judgment and decree passed in the aforementioned suit the Additional Munsif, Bhagalpur, directed the defendant of the said suit to vacate the said premises within one month from the date of the said decree.
The said decree was, thereafter, put in execution by the decree holder opposite-party No. 1 which was registered as execution Case No. 14 of 1985.
3. In the said execution case the petitioner filed an application purported to be under Order XXI, Rule 35 of the Code of Civil Procedure alleging inter alia therein that he was the owner absolute of the gali in question which was under the tenancy of Jagernath Prasad Sah, the judgment-debtor in this case.
According to the petitioner, the said opposite party third party surrendered the entire lease hold premises to the petitioner who came in exclusive possession thereof. It was further alleged that the suit premises was a part of the said tenancy. The petitioner also contended that as he was to be dispossessed from the suit premises which was in his exclusive possession, he was entitled to object to the execution of the decree and pray for holding an inquiry as to whether he was in possession in respect of the said premises or not.
4. By reason of the impugned order, the learned Court below had dismissed the said petition in limine. It appears that the petitioner had already filed an objection purported to be under Section 151 read with Section 47 of the Code of Civil Procedure which was rejected by the Executing Court. The petitioner, thereafter, filed a revision application against the said order which was registered as Civil Revision Application No. 197 of 1988. The aforementioned civil revision application was also dismissed by this Court by an order dated 28.2.1988.
5. Mr. Kumar Sinha, the learned Counsel appearing on behalf of the petitioner, firstly submitted that the learned court below has misdirected itself in relying upon the order of this Court dated 28.2.1988 passed in the civil revision application No. 197 of 1988 inasmuch as this Court categorically observed therein that no observation or finding given in the order impugned is the said civil revision application on the merit of the case shall prejudice the petitioner in any future litigation nor he would be bound thereby. The learned Counsel, therefore, contended that it was not permissible for the learned Court below to dismiss the petitioner’s application on the basis of the aforementioned order dated 28.2.1968 passed is the said Civil Revision No. 197 of 1988. The submission made on behalf of the learned Counsel appears to be correct.
6. The learned Counsel further submitted that an enquiry in the nature as prayed for by the petitioner is contemplated under Order XXI, Rule 35 of the Code of Civil Procedure inasmuch as in terms thereof delivery of possession in respect of the property in question has to be obtained from person who was bound, by the decree. According to the learned Counsel, as the petitioner claims independent title in the property in question being not bound by the decree he could not nave been dispossessed by the executing court pursuant to or in furtherance of the decree passed in the aforementioned suit. In this connection the learned Counsel has strongly relied upon a decision in Ram Chandra Verma v. Manmal Singh and Anr. reported in AIR 1983 Sikkim, page 1.
7. Mr. S.S. Dwivedi, the learned Counsel appearing on behalf of the opposite party, on the other hand, submitted that no enquiry is contemplated under Order XXI, Rule 35 of the Code of Civil Procedure and as such the application filed on behalf of the petitioner was not maintainable and in that view of the matter the impugned order cannot be set aside in the civil revision application.
8. Order XXI, Rule 35(1) of the Code of Civil Procedure reads as follows:
Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree who refused to vacate the property.
From a plain reading of the aforementioned provisions it is evident that it merely provides for a mode of delivery of possession in respect of an immovable property.
9. Order XXI, Rule 35 and other provisions of the Code of Civil Procedure provides for the manner in which different decree can be executed. Plainly enough Order XXI, Rule 35 of the Code of Civil Procedure deals with procedural matters and by itself does not confer any substantive right upon any person nor the same requires the court to hold an enquiry as to whether any other person who is not bound by the decree is going to be dispossessed or not. In other words the said provision does not contemplate an enquiry as to whether a person who alleges himself to be in possession of the property in question is bound by the decree or not.
10. Order XXI of the Code of Civil Procedure lays down provisions viz., Order XXI, Rule 97 as to how and in what manner a third party who is not bound by a decree can resist delivery of possession and if such resistance is effected how the decree-holder can get the matter adjudicated before the executing court.
In this connection reference may be made to Order XXI, Rule 97 of the Code of Civil Procedure which reads as follows:
Whether the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
11. In terms of Order XXI, Rule 99 of the Code of Civil Procedure, if a person other than the judgment debtor is dispossessed from immovable property he may make an application to the court complaining of such dispossession. These provisions evidently confer substantive rights upon a third party who is not bound by the decree.
12. It is, therefore, clear that Order XXI, Rule 97 of the Code of Civil Procedure does not contemplate any application filed on behalf of a third party to get his claim adjudicated before a delivery of possession is effected. In this connection it may be mentioned that in term of Patna High Court Amendment of Order XXI, Rule 58 of the Code of Civil Procedure such an adjudication was possible but after coming into force of the Code of Civil Procedure (Amendment) Act, 1976, the said Patna High Court amendment stands repealed as has been held by this Court in various decisions.
13. In Ram Chandra Venna’s, case the learned Judge of Sikkim High Court relied upon a decision of Madhya Pradesh High Court in Bhagawat v. Kasturi and some other decisions in which it was held that if an application is filed by a third party before delivery of possession is effected, it is obligatory upon the executing court to make an enquiry in order to find out as to whether such a person has been set up by the judgment-debtor or not. With utmost respect to the learned Judge, I am unable to subscribe to the views expressed in the aforementioned judgment.
14. The aforementioned decision of Madhya Pradesh High Court in Bhagawat’s case (supra) has expressly been overruled by the Full Bench of the said Court in Smt. Usha Jain and Ors. v. Manmohan Bajaj and Ors. reported in AIR 1900 MP 146. The Full Bench of Madhya Pradesh High Court in the aforementioned decision clearly held that no enquiry into the title and possession of a third party is contemplated and at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96 of Rule 21 of the Code of Civil Procedure when the decree-holder applies for obtaining possession. It was further held therein that subsequently when the decree holder or auction purchaser is met with obstruction or resistance in obtaining possession, one of the options open is to apply under Rule 97. It was also held that on enquiry at the instance of a third party in possession is contemplated only under Order XXI, Rule 100 after he is dispossessed and not before it. The Full Bench of the Madhya Pradesh High Court also took into consideration the amendment made in various rules of Order XXI carried out by Civil Procedure Code (Amendment) Act, 1976.
15. It may be mentioned herein that various other High Courts including the Full Bench of Orissa High Court in Nityananda Kanango v. Pala Devi and Kesavan Padmanabhan v. Neelkantan Narayanan, reported in 1955 T&C 225, took the tame view. Reference in this connection may also be made to United Bank of India v. C. Mitra reported in AIR 1962 Assam 150, Janki Mohan v. Dr. S. Samaddar , Narotam v. Sardaru, and in Premjee v. Mithabai reported in AIR 1955 Kutch 17, wherein it was held that an application under Order XXI, Rule 97 of the Code of Civil Procedure is not contemplated at a stage before issuance of a writ of delivery of possession at the instance of a third party.
16. It is further well settled by various decisions of High Courts that an application as contemplated under Order XXI, Rule 97 of the Code of Civil Procedure can be filed only by the decree holder in case a third party is in possession of the suit offers resistance or put obstruction in delivery of possession in favour of the decree holder by the Court. In Janki Mohan and Anr. v. Dr. S. Samaddar a Division Bench of this Court held as follows:
In our opinion, the application of the petitioners is premature because there is no application under Order XXI, Rule 97 of the Civil Procedure Code on behalf of the decree holder alleging that there was resistance or obstruction made by the third party in obtaining possession of the property. Unless and until the decree holder makes such an application under Order XXI, Rule 97 of the Civil Procedure Code, there is no locus standi on the part of the petitioners to move the executing court for adjudication of their claim of title or possession over the disputed property. There are specific provisions in Order XXI, Rule 97, Civil Procedure Code, providing in what manner claims of third parties with regard to possession of immovable property are to be adjudicated by the executing Court, In view of these specific provisions it is not open to the petitioners to invoke the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code, it is, therefore, obvious that the application of the petitioners purporting to be made be under Section 151 of the Civil Procedure Code is entirely premature, and on this ground alone we think that the application of the petitioners has been rightly rejected by the executing court.
17. It is also now well settled that an application for delivery of possession under Order XXI, Rule 35 of the Code of Civil Procedure is made, the only question which has to be examined by the Executing Court is whether the decree holder is entitled to obtain delivery of possession sought for by him. At that stage no claim of a third party or a stranger can be taken notice of. If he claims himself to be in actual possession he may assert his own possession and obstruct delivery of possession if he has such a right to obstruct but the court at his instance at that stage cannot embark upon an enquiry with regard to the title or possession of a stranger as at that stage the court is concerned with the matter as to whether the decree holder is entitled to be issued with writ of delivery of possession or not? In my opinion, it is therefore, not possible to read a right to invoke the jurisdiction of the court at that stage at the instance of a third party when no relief is actually sought for by him.
18. The learned Judge of Sikkim High Court in Ramnchandra Verma’s case, inter alia, took into consideration the aforementioned decision of Madhya Pradesh High Court in Bhagawat’s case (supra) which as noticed hereinbefore stood overruled by a Full Bench of the same High Court. The learned Judge has further taken into consideration a division bench decision of Calcutta High Court in Sheikh Yusuf v. Jyotish Chandra reported in AIR 1932 Cal 241, wherein a similar claim was entertained under Section 151 of the Code of Civil Procedure.
19. As noticed hereinbefore a division bench of this Court has clearly held that such an application under Section 151 of the Code of Civil Procedure will not be maintainable. The other reasoning adopted by the learned Judge of the Sikkim High Court in Ram Chandra Verma’s case have been taken into consideration by the Full Bench of Madhya Pradesh High Court in Smt. Usha Jain’s case (supra), and the same need not be repeated herein.
20. However, I may add that where the language of the provision as also the intent of the legislature is clear the court is obliged to give effect to the provision of law as has been enacted.
21. Further, while interpreting the provision of statute if it is required, it must be borne in mind that the court cannot amend she statute having regard to the rights and obligations of a party or having regard to the hardship of a person. A statute has to be interpreted cxvisceribus actus i.e, within the four corners of statute. Although under certain circumstances it is permissible for the court to iron out the creases, if an occasion arises therefor but where the language of a section is plain and. Unambiguous the same has got to be given a literal meaning. It must also be remembered that while interpreting the provision of a statute the court cannot add or substract to the word of statute which may amount to making a legislation by itself nor the court can consider itself wiser than the Parliament.
22. In my opinion, if a right of a third party to get his claim adjudicated is read into the provisions of Order XXI, Rules 35 or 36 and Order XXI, Rules 97 and 98 of the Code of Civil Procedure, the same may amount to confer a new right upon a third party which was not contemplated by the legislature. From the scheme and object of the amendments carried out by the Civil Procedure Code (Amendment), 1976, it is clear that the legislature intended that the decree passed in a suit should be executed as early as possible so that the Decree Holder may reap the benefits of the decree passed in his favour. In this view of the matter, it is not permissible to create a right in favour of a third party in getting his independent claim, title or possession adjudicated although there is no provision therefor. It may further be borne in mind that in terms of Civil Procedure Code (Amendment) Act, 1976, an enquiry under Order XXI, Rules 97 and 98 of the Code of Civil Procedure is no longer a summary one.
23. Even assuming for the sake of argument that there are some lacuna in Order XXI of the Code of Civil Procedure in so far as, no provision has been made for adjudication of a claim of a third party who is not bound by the decree but such lacuna has to be filled up by the legislature itself as the court cannot supply cautions omissus.
24. In my opinion, the question as to whether a third party is bound by the decree or not cannot be adjudicated in the manner as laid down under Order XXI, Rules 97 and 98 of the Code of Civil Procedure. A third party if not bound by the decree, can always file a suit for a declaration that the decree in the suit against the judgment-debtor is not binding upon him. As a matter of fact, it is admitted at the bar that such a suit has been filed by the petitioner in the court of Munsif, 2nd Court at Bhagalpur being Title Suit No. 147 of 1986. It is also admitted that the petitioner in the said suit also filed an application petitioner in the said suit also filed an application for injunction which has been rejected by an order dated 29.4.1987. The said order has been confirmed by the appellate and the revisional Court.
25. From a plain reading of Order XXI, Rule 97 of the Code of Civil Procedure, it would be evident that the same becomes applicable only when delivery of possession was going to be effected and obstruction of resistance to obtain possession of such immovable property has been made. An application under Order XXI, Rule 97 of the Code of Civil Procedure can obviously be made by the decree-holder only if an occasion therefor as contemplated under the said provision arises. By necessary implication it excludes filing of any application by the judgment-debtor or any other person who alleges that he is no bound by the decree.
In terms of Order XXI, Rule 97, C.P.C. when such an application is made, the court is to adjudicate as to whether the person resisting or obstructing the delivery of possession of immovable property has been set up by the judgment-debtor or not. It is, therefore, in my opinion, impermissible to read the provisions of Order XXI, Rule 97 and Order XXI, Rule 35 of the Code of Civil Procedure in such a manner so as to enable the executing court to adjudicate that question on an application filed by a third party, as to whether he is or is not bound by the decree or to make an enquiry in respect pf the plea of the decree-holder as to whether he has been set up by the judgment-debtor or not or he is in possession of the property in question under the judgment-debtor or not.
26. In this view of the matter, I am of the considered view that an enquiry of the nature as has been asked for by the petitioner is not contemplated either under Rule 35 or under Rule 97 of Order XXI or under Section 151 of the Code of Civil Procedure. The learned Court below has absolutely no jurisdiction to entertain such an application and thus has rightly rejected the application filed by the petitioner.
27. In the result, this application is dismissed but without any order as to costs.