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Md. Zurat Azad Khan vs Jajati Adhikari on 2 April, 1996

Orissa High Court
Md. Zurat Azad Khan vs Jajati Adhikari on 2 April, 1996
Author: P Misra
Bench: P Misra


JUDGMENT

P.K. Misra, J.

1. The opposite party in a proceeding under Order 21, Rule 97 of the Code of Civil Procedure (hereinafter referred to as the “Code”) is the appellant against a confirming judgment.

2. Bereft of unnecessary details, the brief facts giving rise to this second Appeal are as follows. The decree in Money Suit No. 136 of 1985 for realisation of certain amount was put to execution in E. P. No. 49 of 1988 in the Court of the subordinate Judge, Jeypore. The disputed property was attached and put to auction wherein the present respondent was the purchaser (hereinafter referred to as the “auction-purchaser”). After obtaining the sale certificate, the auction-purchaser took steps to take possession through the process of court. Delivery of possession was obstructed by the present appellant (hereinafter referred to as the “third party”). The auction purchaser approached the executing court under Order 21, Rule 97 of the Code complaining about the obstruction by the third party. The case of the auction-purchaser is that disputed property along with other property pertaining to plot No. 951 of Khata No. 50(47) was the recorded properly of Sayeed Zafar Madani and his brothers. The aforesaid recorded owners sold different portions of Plot No. 951 to different persons. The disputed property was purchased by Rit Bahadur, the judgment-debtor in Money Suit No. 136 of 1985 (hereinafter called the “judgment-debtor”). The third party had no right over the same nor was he in possession of the disputed property at any time and as such the obstruction offered by the third party was unjustified.

3. The third party (appellant) who was the opposite party in the aforesaid proceeding under Order 21, Rule 97 of the Code, pleaded that he had not obstructed the Amin at the time of alleged delivery of possession. According to him the disputed land was not the property of the judgment-debtor or the recorded owners, namely Mandani brothers. His specific case is that his grand-father had purchased the disputed property including the entire disputed plot No. 951 in 1899 and neither the Madani brothers, nor the judgment-debtor were over in possession of the disputed land and the property had been wrongly recorded in the name of Madani brothers. It was further pleaded that in a proceeding under Section 145 of the Code of Criminal Procedure, the disputed property along with some other properties appertaining to Plot No. 951 was declared to be under his possession. The maintainability of the proceeding under Order 21, Rule 97 of the Code was also questioned.

4. The trial court held that the auction-purchaser was successful in proving that the disputed property belonged to the judgment-debtor and the third party had no right over the same. Accordingly, the application under Order 21, Rule 97 of the Code was allowed and it was directed that the delivery of possession should be effected by removing the third party, if necessary. Treating the said order to be a decree in accordance with Order 21, Rule 102, the third party filed title Appeal No. 9 of 1995 which has been dismissed by the District Judge on a finding that the third party-appellant had no right over the disputed land and the judgment-debtor was the owner. Hence, the second appeal.

5. While admitting the appeal, this Court observed that the questions of law indicated in ground No. 6 of the memorandum of appeal were substantial questions of law to be determined in the Second Appeal. The relevant sub-paras of ground No. 6 are as follows:–

“(i) Since the appellant is a rank outsider and has no connection with the judgment-debtor whether a proceeding under Rule 97 and 98 of Order 21 C.P.C. is maintainable?

(ii) Whether the executing court and the appellate court had the jurisdiction to determine the title of the parties?”

In this appeal Mr. B. L. N. Swamy, learned counsel appearing for the appellant while elucidating the aforesaid questions has submitted that since the third party was not claiming any right, title or interest through the judgment-debtor, the questions relating to the rights of the auction-purchaser and the third party were not available to be decided in a proceeding under Order 21, Rule 97 of the Code and as such the findings rendered by the courts below are illegal. On merit he has submitted that the judgment-debtor and his predecessor-in-interest had no right over the disputed property which was the ancestral property of the third party-appelant, and as such it should be held that the auction sale in the execution case is not binding on the appellant.

Mr. P. Sahu, the learned counsel appearing on behalf of the respondent, has supported the decisions of the courts below and submitted that the concurrent findings regarding the title of the judgment-debtor should not be interfered with in the second appeal.

6. Before examining the contentions raised in the appeal regarding applicability of Order 21, Rule 97, it is necessary to notice the various provisions, both old and New, of the Code in view of the changes brought about by the amendment of 1976, which are extracted hereunder:–

Old

“Rule 97. Resistance or obstruction to possession of immoveable property.–

(1) Where the holder of a decree for the possession of immoveable 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.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

R. 98. Resistance or obstruction by judgment-debtor.–

Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.

Rule 99. Resistance or obstruction by bona fide claimant.–

Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

Rule 100. Dispossession by decree-holder or purchaser.–

(1) Where any person other than the judgment-debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Rule 101. Bona fide claimant to be restored to possession.–

Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

Rule 102. Rules not applicable to transferee lite pendente.–

Nothing in Rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immoveable 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.

Rule 103. Orders conclusive subject to regular suit.

Any part not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property: but, subject to the result of such suit (if any), the order shall be conclusive.”

New

“Rule 97. Resistance or obstruction to possession of immovable property.–

(1) Where 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 on such resistance or obstruction.

(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Rule 98. Orders after adjudication.–

(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2),–

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as in the circumstances of the case it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

Rule 99. dispossession by decree-holder or purchaser.–

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Rule 100. Order to be passed upon application complaining of dispossession.–

Upon the determination of the questions referred to in Rule 101, Court shall, in accordance with such determination,–

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

Rule 101. Question to be determined.–

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

Rule 102. Rules not applicable to transferee pendente lite.–

Nothing in Rules 98 and 100 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.

Explanation.– In this rule, ‘transfer’ includes a transfer by operation of law.

Rule 103. Orders to be treated as decrees.–

Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

Rule 104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.–

Every order made under Rule 101 or Rule 103 shall be subject to the 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.

Rule 105. Hearing of application.–

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called in for hearing, the court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.

Explanation.– An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58.

Rule 106. Setting aside orders passed ex parte, etc.–

(1) The applicant, against whom an order is made under Sub-rule (2) Rule 105 or the opposite party against whom an order is passed ex parte under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as 10 costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.”

A careful comparison and analysis of the provisions, extinct and extent, leads one to the conclusion that the amendment effected has not only altered the scheme but also added many new provisions. Briefly stated, the changes in the scheme arc as follows : Rule 97 (1) remains unaltered. Old Rule 97 (2) has been modified to some extent under new Rule 97(2) and in addition detailed procedure has been prescribed under new Rules 105 and 106.

Old Rule 98 has been incorporated as new Rule 98 (2) with slight alterations. New Rule 98(1) has been added in lieu of old Rule 99. Old Rule 100(1) has been incorporated as new Rule 99(1) without any change. Old Rule 100(2) has been modified and incorporated as new Rule 99(2) and a detailed procedure has been prescribed under new Rules 105 and 106. New Rule. 100 has been added in lieu of old Rule 101. Old Rule 302 has been retained under new Rule 102 with the addition of an explanatory clause. Old Rule 103 has been deleted and new Rule 103 has been incorporated. Rule 104 has been added. The effect of the aforesaid changes is not merely cosmetic. The scope as well as the nature of the proceeding and procedure thereunder have undergone a sea change as evident from the following : Under the old Code, a summary proceeding was contemplated. Under the amended Code, a full-fledged trial is envisaged. Under the old Code if the Court was satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming to be in possession in good faith the application by the decree-holder/auction put chaser was bound to be dismissed. Similarly, if the Court found that a bone fide possessor other than the judgment-debtor had been dispossessed, the Court was enjoined to restore possession to such person. The remedy of the aggrieved party was to file a suit in accordance with old Rule 103. Under the amended Code, all the questions arising between the parties including the questions relating to right, title and interest are to be decided after full-fledged trial and the ultimate decision of the Court is appealable as a decree and a separate suit cannot be filed subsequently. However, under Rule 104, the order under Rule 101 or Rule 103 is subject to the result of any suit pending on the date of initiation of the proceeding in which such order is made.

7. The provisions contained in Rules 97, 98 and 101 are to be (sic) together. As per the aforesaid provisions, the decree-holder or the auction-purchaser if resisted 01 obstructed by any person at the time of delivery of possession of the property should make an application to the executing court and where such application is filed, the court has to proceed to adjudicate upon the application in accordance with other relevant provisions. Rules 99 and 100 make similar provisions for persons other than the judgment-debtor dispossessed by decree-holder/auction purchaser. Order 21, Rule 101 lays down that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99, as the case may be, are to be determined by the executing court and not by separate suit. If the proceeding is initiated on the basis of the application filed by a decree holder or auction purchaser, upon determination of all questions including the question relating to right, title and interest between the parties to the proceeding, the court has to pass order in accordance with Order 21, Rule 98, either allowing the application or dismissing the same, or passing any other order as deemed fit and proper. Under Order 21, Rule 98, Sub-rule (2), if the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by any other person claiming through or at the instance of the judgment-debtor, the court can pass order regarding delivery of possession and if the obstruction persists, the person persisting with such obstruction may also be detained in civil prison. Under Rule 103, the order passed in a proceeding under Rule 98 or Rule 100 is treated to be a decree and appealable as such.

8. In the aforesaid back-drop, the contention of the learned counsel for the appellant that if the person obstructing or offering resistance is not claiming through the judgment-debtor, proceeding under Order 21, Rules 97, 98 and 101 is not contemplated, is untenable in view of the clear language in the amended provisions. Mr. Swamy for the appellant has relied upon the decision reported in AIR 1978 Pun and Har 221, (Dhian Chand v. Parkash Kaur) in support of his contention. The aforesaid decision is based on the unamended provisions of the Code and the principle enunciated therein can no longer be applied to the cases which are governed by the amended provisions. On the other hand, the decisions reported in AIR 1981 Calcutta, 219 (Smt. Santilata Paul v. Nanda Kishore Mukherjee); AIR 1984 Bom 357 (Nusserwanji E. Poonegar v. Mrs. Shirinbai F. Bhesania); AIR 1985 Mad 318 (Pathima Automobiles v. P.K.P. Nair) and AIR 1990 Mad 327 (N. Palaniappan v. O. Pandurangan) which have been decided on the basis of amended provisions negative such contention and bolster the views expressed by me. Mr. Swamy, the learned counsel, has also referred to the decision of the Supreme Court reported in (1994) 6 JT (SC) 626 : (1994 AIR SCW 4549) (Bhanwar Lal v. Satyanarain). There is nothing in the said decision which supports the contention of Mr. Swamy. On the other hand, the observations in paragraph 4 of the judgment to the following effect:–

“. . . . .A reading of Order 21, Rule 97, C.P.C. clearly envisages that ‘any person’ even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right title or interest de horse the judgment-debtor and he resists execution of a decree, then the Court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree holder gets right under Rule 97 to make an application against third parties to have his obstruction and an enquiry thereon could be done…..”

support the view taken by me. In view of the aforesaid legal position, the first contention of the appellant cannot be sustained.

9. Mr. Swamy then submitted that the findings of the Courts below regarding the title of the judgment-debtor over the disputed property and regarding the lack of right, title and interest of the third party-appellant are not sustainable as the Courts below have arrived at a perverse finding without consideration of the materials on record. The question whether the original judgment-debtor or the third party-appellant had right in the property which was sold in the execution proceeding, is essentially a question of fact and any finding on the aforesaid question is ordinarily binding on the second appellate Court. However, on the insistence of the learned counsel for the appellant, I have perused carefully the materials on record and I am afraid, the contention of the appellant is not tenable. The materials on record reveal that the disputed plot No. 951 had been recorded in the name of Sayeed Zafar Madani and other co-sharers under Ext. 4 which is the Record-of-Rights published in 1984. I am conscious that a Record-of-Rights neither creates nor extinguishes title. However, Ext. C, the order-sheet relating to the Settlement proceeding indicates that the objection of the present appellant was not accepted and there was a direction to continue the Sabak record in respect of plot No. 951. In other words, the said order of the Settlement authority indicates that even in the previous Record-of-Rights the disputed plot had been recorded in the name of Sayeed Zafar Madani and his co-sharers. In the absence of any other document of title from either side, the Record-of-Rights under Ext. 4 which apparently was a confirmation of earlier Record-of-Rights, raises presumption regarding ownership and possession in favour of the recorded persons, from whom the judgment-debtor had purchased the disputed property.

As against the aforesaid documents, the appellant has proved Ext. B which purports to be a sale deed of the year 1899. As correctly interpreted by the lower “appellate Court, the said sale deed purports to sell fifty mango trees from a mango grove and not relatable to sale of land as such. Moreover, there is. nothing on record to connect the said sale deed with the present disputed land. As such, the said document is of no assistance to the appellant.

The appellant has also relied upon decision of an Executive Magistrate in a proceeding under Section 145, Code of Criminal Procedure, wherein possession of the appellant was declared by order dated 29-9-1988. A perusal of the said order indicates that six proceedings under Section 145 of the Code of Criminal Procedure had been disposed of by a common order, wherein the appellant was the common second party member, whereas six different persons were first party members in the six different cases. The judgment-debtor, Rit Bahadur, was not a party to any of the proceedings under Section 145, Cr. P. C. and it does not appear that the present disputed property was the subject-matter of the said proceeding. On the other hand, in M. C. No. 260 of 1983 the eastern boundary of the property involved in 145, Cr. P. C. proceeding was shown to be site of Rit Bahadur. When the order was not in respect of the disputed property and not between the parties, the possession declared in the said case cannot be considered as relevant for the purpose of the present litigation. Merely because some other portions of the disputed plot No. 951 were declared to be under the possession of the present appellant, it cannot be assumed that the appellant was also in possession in respect of the present disputed property which is part of plot No. 951. Rent receipts filed on behalf of both the parties by themselves do not advance the case of either party any further. The oral evidence has been considered by both the Courts below. In such view of the matter, the contention of the appellant regarding his title is bound to fail.

10. Relying upon the decision reported in AIR 1994 S’C 1292 (Ghanashyamdas v. Om Prakash), the learned counsel for the appellant submitted that since the respondent is merely an auction-purchaser, the matter should be disposed of by directing reimbursement of the sale price along with some compensation in favour of the auction-purchaser and the appellant should be allowed to remain in possession of the disputed land. In view of the findings recorded in the present case regarding the title, I am afraid, the equitable principle which was applied by the Supreme Court on the peculiar facts and circumstances of the said case cannot be made applicable;

Accordingly, there is no merit in this appeal, which is dismissed. In the circumstances, therein be no order as to costs.

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