JUDGMENT
B.P. Dharmadhikari, J.
1. Writ Petition 4277 of 2004 is filed by decree holders Ananta and others against the respondent Vijaya and her husband Ramakrishna challenging the order dated 23-7-2004 passed by 15th Ad-hoc Additional District Judge, Nagpur in Misc. Civil Appeal number 118/2004 and Misc. Civil Appeal number 168/2004 whereby while dismissing the appeals filed by respondent Vijaya, the said Court has held that determination made in M.J.C. No. 62 of 2001 and confirmed in Misc. Civil Appeal number 118 of 2004 shall be subject to result of Regular Civil Suit No. 1421/1999. Respondent Vijaya also filed a Writ Petition on 16 December, 2004 challenging the very same judgment. Said Writ Petition was found containing certain objections and as the objections were not removed, ultimately office refused registration in it on 8 February, 2005. Thereafter on 23rd February, 2005 Vijaya filed Civil application 1278 of 2005 under Section 5 of Indian Limitation Act for condonation of delay in moving application for restoration of rejected Writ Petition back to file. With the consent of parties, both these matters were taken up together as advocate for Ananta and others contended that the latter Writ Petition is filed with a oblique motive by Vijaya only to delay the execution. Both the advocates have filed their written notes of arguments in these matters.
2. By consent delay in moving M.C.A. for restoration as prayed for vide C.A. 1278/2005 is condoned and M.C.A. (Revn.) St. No. 4252/2005 is also allowed. Order dated 24-1-2005 refusing registration is hereby set aside. Office to register above M.C.A. as also Rej. W.P. 87/2005 as per procedure.
3. Rule made returnable forthwith by consent of parties in both matters.
4. The history of litigation between parties is interesting. Balaji, father of Ananta had filed Regular Civil Suit No. 1021 of 1978 against Ramakrishna for possession and for arrears of rent and that suit was decreed on 13th July, 1982. Ramkrishna challenged this judgment and decree are filing regular Civil Appeal 316 of 1982 but the same was dismissed as abated on 9th November, 1987 as Balaji expired and his legal heirs were not brought on record. Then Ramakrishna husband of Vijaya filed special Civil Suit No. 286 of 1982 against Balaji, father of Ananta for specific performance. In this suit, after death of Balaji, application at Exhibit 83 was moved for bringing legal heirs on record and at that time claim of Shantabai wife of Balaji to be brought on record was rejected and Ananta as also other petitioners in Writ Petition 4277 of 2004 were held to be Balaji’s heirs after inquiry as per provisions of Order 22, Rule 5 of Code of Civil Procedure. This suit was dismissed on 16th September, 1992 in view of bar of res-judicata contained under Section 11 of the Code of Civil Procedure in view of decision in Regular Civil Suit 1021/1978. Ramkrishna challenged this in first Appeal No. 71/1993 in High Court but ultimately withdrew this first Appeal on 7th February, 1995. Ramkrishna had also filed Regular Civil Suit No. 355/1994 against Ananta and others for declaration and injunction but that suit was dismissed in default on 14th July, 1995. Balaji had also filed Civil Suit 550/1994 against Ramakrishna for recovery of arrears of rent and the same came to be decreed. Regular Darkhast 304/1995 is for execution of said decree. Vijaya filed Regular Civil Suit 48/1998 against Ananta and others for declaration of ownership and injunction. Said suit came to be dismissed for want of prosecution on 22-6-1999. Then Vijaya filed Regular Civil Suit 1421/1999 for declaration that decree obtained by Balaji in Civil Suit 550/1994 is fraudulent and not binding on her. Said suit is still pending.
5. Ananta and others had filed Civil Suit of 243/1997 for possession against Ramakrishna and the same came to be decreed. Regular Darkhast 159/2001 is for execution of that decree. In said execution, Vijaya filed objection by M.J.C. 62/2001 contending that decree obtained against Ramakrishna cannot be executed against her. The executing Court has rejected this objection under Order 21, Rule 97 of Civil Procedure Code on 20 February, 2004 and MCA 118/2004 was filed by Vijaya challenging that rejection. The executing Court issued warrant for possession and Vijaya filed application vide Exhibit 54 to recall it. Trial Court rejected the same on 28 April, 2004 and Vijaya filed MCA 168/2004. challenging it. Vijaya has claimed that she has purchased suit property vide sale deed dated 6th May, 1994 executed by Shantabai widow of Balaji in her favour and further states that Ramakrishna i.e. her husband is leaving separately since 1995. It is her case that Balaji before his death had executed will and bequeathed suit house in favour of Shantabai. However, this has not found favour with the trial as also the appellate Court. The appellate Court however found the issue regarding tenability of Regular Civil Suit No. 1421/1999 is to be considered by the Court before whom it is spending. Similarly, it also found that effect of abatement of Regular Civil Suit No. 48/1998 on Civil Suit 1421/1999 will also be required to be considered in latter suit. It has therefore while dismissing Misc. Civil Appeals 118/2004 and 168/2004 clarified that determination made by trial Court i.e. executing Court in M.J.C. No. 62/2001 shall be subject to the result of Regular Civil Suit No. 1421/1999. Ananta and others have challenged this “subject to” part of the impugned order while Vijaya has challenged the entire order.
6. Advocate Purohit appearing for Ananta and others has given the history as mentioned above and has contended that Civil Suit 1421/1999 does not meet the requirements of Rule 104 of Order 21 and as such, execution of decree by Ananta and others cannot be made “subject” to it. He states that Ananta and others are fighting for possession since 1978 and Ramkrishna as also his wife Vijaya are acting in collusion to prolong the vacation of suit premises. He has relied upon certain judgments to define the exact scope of phrase “subject to”. As against this, advocate Kshirsagar appearing for Vijaya has contended that Vijaya is occupying suit premises in her own independent rights and judgment and decree obtained against Ramakrishna cannot be used to evict her. He has argued that dismissal of Civil Suit 48/1998 was for non-payment of the process fees and it does not operate as res judicata as Court has not decided any issue. He further states that causes of action in both suits are different. It is his case that M.J.C. 62 of 2001 came to be dismissed without any opportunity to Vijaya and he further contends that appreciation of document of sale dated 6th May, 1994 by both the Courts below is perverse and unsustainable. He has also relied upon certain judgments to point out the exact meaning of words “subject to”. He states that decision under Order 21, Rule 97 is summary decision and rights of parties must be adjudicated in Civil Suit No. 1421 of 1999. He has further contended that the finding under Order 22, Rule 5 inquiry in C.S. 286 of 1982 cannot operate as res-judicata and has also placed reliance upon certain rulings in support of this contention. He contends that application under Order 21, Rule 97 has not been decided on merits by trial Court and evidence of Vijaya was closed when Writ Petition challenging it was pending in High Court. He contends that Vijaya therefore did not get opportunity to lead positive evidence about the said sale deed or about the Will of Shantabai.
7. Rule 104 of Civil Procedure Code states that “every order made under Rule 101 or Rule 103 shall be subject to result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the Order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property”.
8. Both the advocates have got different arguments about the effect of phrase “subject to result of any suit” in this rule. Advocate Purohit has relied upon judgment of Hon’ble Apex Court reported at between Bar Council of India v. High Court of Kerala and between Rai Vimal Krishna and Ors. v. State of Bihar to contend that “subject to” only expresses limitation but the order is conclusive for all purposes. Perusal of paragraph 31 and 32 reveal that the words “subject to” only denote that the order of execution in this case is the subordinate to and will be affected by decision of Civil Suit 1421 of 1999. Same interpretation follows when paragraph 34 of latter ruling is taken into consideration. Advocate Kshirsagar has relied upon the judgment of K.R.C.S. Balkrishna Chetty v. State of Madras, to state that in view of use of those words by appellate Court, the execution is conditional upon decision of C.S. 1421 of 1999. He has also relied upon judgment between South India Corporation v. Secretary, Board of Revenue reported at for same purpose. However, both these judgments show that word “subject to” has been used in totally different background there. In first ruling, provisions of Madras General Sales Tax Act were considered and it was found that Section 3 is the charging section and Section 5 gave the exemption from taxation but that section clearly makes the holding of license subject to restrictions and conditions prescribed under the provisions of Act and Rules. The Hon’ble Apex Court has held that expression “subject to” means exemption under the licence is conditional upon the observation of conditions prescribed and the restrictions imposed by Rules. In latter judgment, the Hon’ble Apex Court has interpreted said phrase appearing in Article 372 to conclude that if there is conflict between the pre-existing laws and the provisions of the Constitution, latter will prevail. Use of that phrase in Order 21, Rule 104 of Civil Procedure Code reveals that the determination of issue under Rule 101 or 103 by executing Court is conclusive and execution is not to be stayed during pendency of suit but execution is to be carried out and can be undone if the suit is decreed. The phrase “subject to” cannot be construed to mean that such determination by executing Court remains stayed till and during pendency of the other suit filed by obstructionist. I find that the appellate Court has correctly considered the controversy and answered it in accordance with law. There is no jurisdictional error or error apparent in this respect.
9. Advocate purohit has relied upon judgment of Hon’ble Apex Court reported at between Shreenath v. Rajesh to contend that for possession of Vijaya is not in pursuance of any independent title. He states that her claim has been adjudicated upon in execution under Rule 101 read with Rule 97 and Civil Suit for that purpose is not maintainable. Facts before the Hon’ble Apex Court reveal that even persons with independent title can raise objections under Order 21, Rule 97. Reference to this case in details is called for. The question which Hon’ble Apex Court has considered as is apparent from paragraph 5 is whether the third party in possession of property claiming independent right as a tenant not party to decree under execution could resist such decree by seeking adjudication of his/her objections under Order 21, Rule 97 of the Civil Procedure Code? In paragraph 10, Hon’ble Apex Court observed thus :
“10. Under sub-clause (1), Order 21, Rule 35, the executing Court delivers actual physical possession of the disputed property to decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing the copy of warrant in some conspicuous place of said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, Rule 99 conceives of resistance or obstruction to the possession of immovable property when made in execution of decree by “any person”. This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing Court when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 shall be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by stranger is adjudicated and finality given even in the execution proceedings. We find the expression “any person” under sub-clause (1) is used deliberately for widening the scope of power so that the executing Court could adjudicate the claims made in any such application under Order 21, Rule 97. Thus by use of the words “any person” it includes all persons resisting the delivery of possession, claiming the right in property even those not bound by the decree, includes tenants or other persons claiming right on their own including the stranger.”
10. In paragraph 11 the Hon’ble Apex Court observes, “So, under Order 21, Rule 101 all disputes between the decree holder and any such person is to be adjudicated by the executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of fresh suit.” Observations made at the end of paragraph 13 and even in paragraph 16 of this ruling reveal that the Hon’ble Apex Court has also laid down that under old Civil Procedure Code a person resisting possession under Rule 97 read with Rule 99 was required to file suit to establish his right. However, there is no such requirement after 1976 amendment to the Code of Civil Procedure. It is thus clear that Vijaya tried to resist possession of Ananta but could not succeed and findings recorded by both the lower Courts in this respect are already stated above. However, in this ruling, the Hon’ble Supreme Court has not considered Rule 104 of the Code of Civil Procedure.
11. As already discussed above Civil Suit 1421/1999 was very much pending when execution was started by Ananta. The relevant dates are already mentioned above. Thus Order made against Vijaya is subject to decision of Civil Suit 1421/1999 as directed by the appellate Court. However, in view of adjudication of claim of the Vijaya in execution proceedings under Order 21, Rule 97 read with Rule 101 and Rule 103, the execution is bound to proceed further and pendency of suit 1421/1999 by itself does not amount to staying delivery of possession by the Vijaya to Ananta.
12. Advocate Kshirsagar has relied upon the judgment of Mohinder Kaur v. Piarasingh reported at . In this judgment the full bench of Punjab and Haryana High Court has held that decisions of inquiries conducted under Order 22, Rule 5 can not operate as res-judicata between parties in subsequent proceedings and said inquiry is only directed to answer an orderly conduct of proceedings with a view to avoid delay in final adjudication. He has relied upon for same purpose. Again I find that the appellate Court has rightly considered this issue and there is no jurisdictional error or error apparent in this respect.
13. Advocate Kshirsagar has relied upon the judgment between H. Sesadri v. K.R. Natrajan reported at to contend that a person with independent title is entitled to protect his possession. He contends that Vijaya being owner, is entitled to oppose execution and protect her possession. In reported case, independent tenant was sought to be removed as trespasser or subtenant under judgment-debtor. High Court did not record any express finding about the status of such independent tenant and Hon’ble Apex Court noticed that there was material on record to show that shop in his possession was not part of premises rented out to judgment-debtor. It is also noticed that High Court there did not consider such material. Position in this case is not identical. The learned trial Court has considered the plea as raised and has negated it. The appellate Court has found that this answer given by trial Court deserves to be maintained. The discussion in this respect as contained in paragraph 28 of impugned judgment of appellate Court is not demonstrated to be either perverse or suffering from any jurisdictional error.
13A. It appears that in M.J.C. 62/2001 Vijaya was examined on commission and thereafter she moved applications at Exhibit 68 to issue summons to and witness who according to her was son of a witness to the execution of Will in favour Shantabai. That application was rejected and Ananta was permitted to examine his witnesses by executing Court. On 25 April, 2003 Vijaya moved application Exhibit 73 to file affidavit of a witness and it was rejected. Said rejection was challenged by her unsuccessfully before District Court in appeal and then before this Court in Writ Petition. Again she moved another application vide Exhibit 102-A for same purpose of and it came to be rejected. Misc. Civil Appeal challenging this rejection also came to be dismissed and after considering this material, the appellate Court has held that there was no denial of opportunity to appellant Vijaya by the trial Court. In view of material available on record, it is apparent that the trial Court gave enough opportunity to Vijaya to substantiate her case and arguments about denial of such opportunity are unsustainable.
14. The appellate Court has considered the story of Vijaya about sale by Shantabai in her favour and about Will by Balaji in favour of Shantabai. It has found that the said Will is not at all pleaded by Vijaya before the executing Court and has therefore refused to look into the same. Even the plea of sale deed is considered and it is found that said sale deed is not proved in spite of adequate opportunity to Vijaya by trial Court. It is noticed that said sale deed is not registered document and it found that the government servant attached to the office of sub-registrar of documents deposed before trial Court that Vijaya was directed to deposit deficit stamp duty along with penalty amounting to Rs. 200488/- only and it was not paid. Appeal against this order was also dismissed and proceedings to recover deficit stamp duty and penalty are going on. The appellate Court has further observed that mere existence of document cannot mean that document is valid or that Vijaya is occupying the suit premises in her own rights. It has also considered the earlier litigation between parties for this purpose in paragraph 22 of its order. It has also considered evidence of Vijaya before trial Court and has concluded that in 1985, i.e. at the time of alleged agreement between Vijaya and Shantabai, respondent number one was held to be in possession as tenant and there was nothing to show that Vijaya came into possession in pursuance of alleged agreement. I do not find any perversity in application of mind by either the trial Court or the appellate Court in this respect. Arguments of learned counsel for Vijaya that said sale deed is not challenged by Ananta, in the background of this case, is misconceived and burden lies upon Vijaya to show that Balaji executed any Will in favour of Shantabai and, thereafter, Shantabai sold suit property to her. No title passes to Vijaya in the absence of valid registered sale deed.
15. Advocate Purohit points out that Regular Civil Suit 1421 of 1999 filed by Vijaya is not for possession and therefore is not a suit of nature contemplated by Order 21, Rule 104, Civil Procedure Code. He further contends that temporary injunction was rejected to Vijaya in that suit. It is to be noticed that claim in said Civil Suit is to declare judgment and decree obtained by Balaji in Civil Suit 550 of 1994 to be fraudulent. Reliance for this relief is upon the sale deed allegedly executed by Shantabai in her favour. Thus the question of title to the property is very much involved in that suit. It is thus clear that in Civil Suit 1421 of 1999 Vijaya is attempting to establish a right which she claims to the present possession of suit property and as such the suit is covered by Rule 104 of Order 21. This suit is filed by Vijaya on 10 August, 1999 while M.J.C. 62/2001 is filed on 15th December, 2001. Thus suit was already pending and situation attracts Rule 104. The appreciation of position by appellate Court in this respect does not call for any interference.
16. The appellate Court has also considered the argument about effect of dismissal of RCS 48/99 filed by Vijaya and has found that its effect on Civil Suit 1421/1999 is to be considered in latter suit. The argument of Ananta that Civil Suit 1421/1999 stood abated against original defendant No. 2 Malatibai and it has been dismissed against original defendant No. 3 (Smt. Rajani) is also correctly appreciated by holding that effect thereof upon Civil Suit 1421/1999 will have to be considered in later suit. The appellate Court has also taken note of the fact that temporary injunction application filed by Vijaya in Civil Suit 1421 of 1999 is already rejected.
17. Advocate Purohit for Ananta and others has relied upon the judgment of this Court reported at 2005 (1) Mh.LJ. 426 between Purushottam @ Nana U. Sanyasi v. A. N. Jog and Ors. to contained that Vijaya and her husband Ramkrishna are resorting to delaying practices and the same should be penalised. Paragraph 18 of this ruling reveals that this Court has observed that every party to the litigation has right to defend his right up to the last stage of litigation but parties do not have right to prolong the matter or to date even by taking shelter of provisions of law. It is observed that the law’s delay are to be condemned and Courts cannot be parties to such tactics and any party attempting to do so must not only ‘be discouraged but should be penalised. As Civil Suit number 1421/1999 is still pending, it will not be proper for this Court to make any comment in this respect at this stage.
18. Thus no case is made out for intervention in both Writ Petitions. Petitions dismissed. Rule in both discharged. No costs.