Gujarat High Court Case Information System
Print
SCA/11749/2008 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11749 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
LEELAVANTIBEN
MOHANBHAI DABHI - Petitioner(s)
Versus
PRAKASHBHAI
NATHABHAI SONAGARA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
YM THAKKAR for
Petitioner(s) : 1,
MS SEJAL K MANDAVIA for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 07/10/2008
ORAL
JUDGMENT
Rule.
Ms.Sejak K.Mandavia, learned advocate waives the service of notice
of rule on behalf of the respondent No.1.
With
the consent of the learned advocates appearing on behalf of the
respective parties, present petition is taken up for final hearing
today.
Present
petition is filed by the petitioner ? original objector, under
Article 227 of the Constitution of India for appropriate order,
order and/or direction quashing and setting aside the impugned order
dtd.7/8/2008 passed by the learned 4th Additional Senior
Civil Judge, Junagadh below application Ex.5 in Special Execution
Petition No.3 of 2006 as well as order dtd.19/3/2008 passed by the
learned Additional District Judge and Presiding Officer, FTC No.5,
Junagadh in Civil Misc.Appeal No.73 of 2007.
Facts
leading to the present Special Civil Application, in nutshell, are
that the petitioner and the respondent No.2 are husband and wife
and their marriage was solemnised in the year 1987 and out of the
wedlock, they have two children. The petitioner and the children are
in possession of the suit property i.e. residential house. The
respondent No.2 was serving as a teacher and he obtained Housing
Loan. As per the petitioner, the loan installments were paid from
their joint salary of the petitioner and the respondent No.1 as per
their mutual understanding. As per the petitioner, after a period of
about one year, the respondent No.2 ? husband deliberately did not
pay the installments towards housing loan only with a view to render
the petitioner and two children homelss. According to the
petitioner, she managed to pay few installments but thereafter she
could not continue to pay the loan installments and as the loan
installments were not paid, the respondent No.3 ? State Bank of
India filed a suit for recovery of due amount being Special Civil
Suit No. 34 of 2005, wherein the petitioner was not joined as party
defendant and the respondent No.2 in the said suit, on the first
date of hearing, admitted the liability and accordingly, consent
decree was drawn on 15/6/2005. The respondent No.2 husband also
filed a purshish declaring that the decretal amount to the tune of
Rs.3,14,059=00 should be recovered from the residential house
occupied by the petitioner and two children. That the respondent
No.3 Bank ? decree holder initiated execution proceedings by way
of filing Special Execution Petition No.3 of 2006 before the learned
Civil Judge, Junagadh and the learned 4th Additional
Senior Civil Judge vide order dtd.10/10/2006 directed to realise the
decretal amount by selling the residential house occupied by the
petitioner and her two children by way of public auction and
accordingly, the house occupied by the petitioner and two children
was auctioned and the same has been purchased by the respondent
No.1, who is cousin of the
respondent No.2, on 23/3/2007. The auction purchaser – respondent
No.1 had moved application Ex.33 for delivery of possession of the
auctioned property occupied by the petitioner. The petitioner filed
her objection vide Ex.38 on 24/7/2007 contending that the petitioner
is in occupation of the property in question and the said fact was
within the knowledge of the respondent Nos.1 and 2, however the said
property was allowed to be auctioned and that the petitioner and two
children have right, title and interest in the property and
therefore, the auction purchaser ought to have moved an application
under Order 21 Rule 97 of the Code of Civil Procedure instead of
filing application under Order 21 Rule 95 of the Code of Civil
Procedure. The learned 4th Additional Senior Civil Judge,
Jungadh allowed the application made under Order 21 Rule 95 of the
Code of Civil Procedure, vide order dtd.20/9/2007, directing the
petitioner to hand over the possession of the residential premises
to the auction purchaser ? respondent No.1. Being aggrieved by and
dissatisfied with the order dtd.20/9/2007 passed by the Executing
Court below Ex.1 in Execution Petition No.3 of 2006, the petitioner
preferred Civil Misc.Appeal No.73 of 2007 before the District Court,
Junagadh. The respondent No.1 auction purchaser moved an application
Ex.42 under Order 21 Rule 98 of the Code of Civil Procedure with a
prayer to send the petitioner in Civil Prison as she has not handed
over the possession, against which the petitioner filed her
objection vide Ex.48 on 9/4/2008 which is pending. That the
learned Additional District Judge and Presiding Officer, FTC No.5,
Junagadh rejected the Civil Appeal No.73 of 2007 vide judgement and
order dtd.19/3/2008 mainly on the ground that since the petitioner
was not party to the suit and the execution proceedings, the
petitioner has no right to prefer the appeal and the petitioner was
not the decree holder and therefore, Order 21 Rule 97 of the Code of
Civil Procedure is not attracted. It appears that the petitioner
also filed application Ex.49 inter-alia contending that before
hearing of application under Order 21 Rule 98 of the Code of Civil
Procedure, since no order is passed under Order 21 Rule 92 of the
Code of Civil Procedure, the auction purchaser does not become owner
and therefore, before deciding the application under Order 21 Rule
98 of the Code of Civil Procedure, objection raised by the
petitioner may be decided. However, the learned 4th
Additional Senior Civil Judge by the impugned order rejected the
application Ex.49 and hence the petitioner objector has preferred
present Special Civil Application under Article 227 of the
Constitution of India.
Mr.Yogesh
Thakkar, learned advocate appearing on behalf of the petitioner ?
objector has submitted that the trial court has erred in not
appreciating the fact that since the petitioner and her two children
are occupying the residential house, application preferred by the
respondent No.1 under Order 21 Rule 95 of the Code of Civil
Procedure is not tenable and order dtd.20/9/2007 passed by the
executing court below application Ex.33 directing the petitioner to
hand over the possession to the respondent No.1 was illegal, unjust
and contrary to law and consequently, the order passed in appeal
deserves to be quashed and set aside.
It
is submitted that, as such, the respondent No.1 could not have given
the symbolic possession as per Order 21 Rule 96 of the Code of Civil
Procedure, as the petitioner and her two children are in occupation
and possession of the suit property. It is further submitted that
when the petitioner had raised objections, the same are required to
be decided and adjudicated by the Court as per Order 21 Rule 97 of
the Code of Civil Procedure and the learned executing court has
committed an error in not adjudicating the objections raised by the
petitioner under Order 21 Rule 97 of the Code of Civil Procedure
and has erred in allowing the application Ex.49. Submitting
accordingly it is requested to allow the present Special Civil
Application.
Present
petition is opposed by Ms.Sejal Mandavia, learned advocate appearing
on behalf of the respondent No.1. It is submitted that as the
property has been purchased by the respondent No.1, the remedy
available to the auction purchaser is Order 21 Rule 95 of the Code
of Civil Procedure and Order 21 Rule 97 of the Code of Civil
Procedure would not be applicable. It is submitted that even the
objections submitted by the petitioner could not have been
considered and/or adjudicated upon under Order 21 Rule 97 of the
Code of Civil Procedure, as application Order 21 Rule 97 of the
Code of Civil Procedure would be maintainable only if the same is
by decree holder and/or purchaser. It is submitted that after the
order was passed by the learned executing court in an application
under Order 21 Rule 95 of the Code of Civil Procedure, when the
petitioner did not hand over the possession and thereafter when the
respondent No.1 submitted application for delivery of the property,
under Order 21 Rule 96 of the Code of Civil Procedure and when the
order has been passed by the trial court below application Ex.49,
the same cannot be said to be illegal and/or contrary to the
provisions of Order 21 Rule 95 of the Code of Civil Procedure.
Submitting accordingly it is requested to dismiss the present
Special Civil Application.
The
learned advocate appearing on behalf of the respondent No.1 has
relied upon the decision in the case of Chandravati
Co.Op.Housing Society Ltd., Maninagar Vs. Bhairavnath Education &
Cultural Society Trust & Ors., reported in 1993
(1) GLR 116 in support of her submission that the
application under Order 21 Rule 97 Code of Civil Procedure at the
instance of the petitioner was not maintainable.
Heard
the learned advocates appearing on behalf of the respective parties.
At
the outset it is required to be noted that the respondent No.1
herein is the auction purchaser of the property in question. The
disputed property in question is in occupation and possession of
the petitioner and her two children. The execution petition came to
be submitted by the respondent No.1 ? auction purchaser and in the
said proceedings, the petitioner has submitted objections.
Considering the provisions of Order 21 Rule 97 of the Code of Civil
Procedure, where holder of a decree for the possession of immovable
property or 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 and as per sub rule 2 of Order 21 Rule 97 of the
Code of Civil Procedure, where any application is made sub rule 1,
Court shall proceed to adjudicate the application. As per order 21
Rule 101 of the Code of Civil Procedure, the said objections are
required to be dealt with and adjudicated upon considering the Order
21 Rule 98 of the Code of Civil Procedure and therefore,
considering the above, when the petitioner resisted the execution by
submitting the objections, the said objections are required to be
dealt with under Order 21 Rule 97 of the Code of Civil Procedure.
Now, considering the Order 21 Rule 97 of the Code of Civil Procedure
, decree holder and/or purchaser has to submit an application to the
Court complaining of resistance or obstruction in enjoying the
possession. As held by the learned Single Judge of this Court in the
case of Chandravati Co.Op.Housing Society Ltd., Maninagar
(supra) any application made by the person other than decree holder
and/or purchaser under Order 21 Rule 97 is not maintainable. Now the
question is when the decree is resisted and obstructions are raised
in the execution, what will happen when the decree holder and/or
purchaser do not submit any application to the Court complaining of
such obstruction or resistance as contemplated under Order 21 Rule
97 of the Code of Civil Procedure. In such a situation when the
decree is resisted and obstructions are raised in the execution,
unless and until the objections are decided and/or adjudicated upon,
the executing court cannot pass any order directing obstructer
and/or occupier to hand over the possession, otherwise, Order 21
Rule 97 of the Code of Civil Procedure would become nugatory. On
the one hand, considering Order 21 Rule 97 of the Code of Civil
Procedure only decree holder or purchaser can submit the
application and when the decree holder or purchaser do not submit
the application and some third party submits the application under
Order 21 Rule 97 of the Code of Civil Procedure, it is said that the
same is not maintainable, under the circumstances, the objector
would have no remedy. Such an interpretation would make Order 21
Rule 97 nugatory. Under the circumstances, it is to be held that
when the decree is resisted and objections are raised, decree holder
or purchaser has to submit the application for removing the
obstructions as contemplated under Order 21 Rule 97 of the Code of
Civil Procedure, and until then the executing court cannot pass any
order delivering the possession and the executing court has to
adjudicate upon the objections submitted by the objector before
directing to hand over the possession.
Realising
the above position of law, Ms.Sejal Mandavia,
learned advocate appearing on behalf of the respondent No.1 has
submitted that the respondent No.1 would make an appropriate
application before the executing court as contemplated under Order
21 Rule 7 of the Code of Civil Procedure complaining of resistance
or obstructions by the petitioner and it is requested that the
learned executing court be directed to decided and disposed of the
same at the earliest.
Considering
the above provisions of law and the discussion made hereinabove, the
impugned orders passed by the executing court deserves to be
quashed and set aside and the learned executing court is to be
directed to decide and dispose of the application to be submitted by
the respondent No.1 under Order 21 Rule 97 of the Code of Civil
Procedure and adjudicate the objections submitted by the petitioner
in light of the Order 21 Rules 98, 100, 101 of the Code of Civil
Procedure.
For
the reasons stated above, the impugned order dtd.7/8/2008 passed by
the learned 4th Additional Senior Civil Judge, Junagadh
below application Ex.5 in Special Execution Petition No.3 of 2006 as
well as order dtd.19/3/2008 passed by the learned Additional
District Judge and Presiding Officer, FTC No.5, Junagadh in Civil
Misc.Appeal No.73 of 2007, are hereby quashed and set aside and as
submitted by Ms.Mandavia,
learned advocate appearing on behalf of the respondent No.1, let
the respondent No.1 submit appropriate application under Order 21
Rule 97 of the Code of Civil Procedure complaining of resistance and
obstruction by the petitioner and as and when such an application
is submitted by the respondent No.1, the executing Court shall
decide and dispose of the same at the earliest but not later than
three months from the date of receipt of such application and shall
consider and adjudicate upon the objections considering Order 21
Rule 97, 98, 100 and 101 of the Code of Civil Procedure and shall
pass appropriate order in accordance with law and on merits. Rule
is mad absolute to the aforesaid extent. No costs.
rafik [M.R.
SHAH, J.]
Top