ORDER 21 RULES 96, 97, ORDER 23 RULE 1 – LIBERTY TO PURSUE REMEDY – Bar to file separate suits – Decree for restoration of possession in separate suit – Execution petition filed -Appellant a sub-tenant – Decree obtained – Appellant not a party to the decree – Files application for restoration of possession – Appellant -sub-tenant withdraws the application under Order 21 Rule 97 stating that he has filed a comprehensive suit regarding the same subject matter for the similar relief – Suit dismissed on the ground that appellant – sub-tenant has invoked the remedy under Order 21 Rule 96 and 97. Appellant – sub-tenant not requesting to reserve liberty to pursue the remedy by way of suit as envisaged under Order 23 Rule 1 Whether dismissal of application under Order 21 Rule 97 of CPC at the instance of the appellant amounts to withdrawal of the proceedings – Whether after abandoning the proceedings under Order 21 Rule 97 a separate suit maintainable -Whether a filing separate suit a bar under Order 21 Rule 101 – Whether order of Trial Court proper in dismissing the separate suit. HELD – It would make a difference in law if the suit filed by the appellant had preceded the filing of application under Order 21 Rule 97 of CPC. On the ground of avoiding simultaneous parallel proceedings, it is permissible for the appellant to have withdrawn the application under Order 21 Rule 97 of CPC. Thereby his right to continue the suit filed prior to invoking the jurisdiction under Order 21 rule 97 of CPC would not get affected. The appellant in the instant case has invoked the remedy under Order 21 Rule 97 of CPC initially after getting the petition dismissed as withdrawn files the suit subsequently that is rather impermissible in law since having invoked the jurisdiction under Order 21 Rule 97 of CPC. The appellant was bound to continue the proceedings. The proceedings under Order 21 Rule 97 of CPC have the character of a suit, it is permissible to withdraw the proceedings under Order 23 Rule 1 of CPC by making out a case to that effect. The appellant obviously is not granted the liberty to file a fresh suit. Therefore, the appellant having abandoned the proceedings under Order 21 Rule 97 of CPC is not entitled to file a separate suit in view of the bar under Rule 101. The order of the Trial Court in dismissing the separate suit as not maintainable is sound and proper.
Held:
The definition of a decree excludes an appealable order, but however, an order passed under Rule 98 or 100 is specifically declared as a decree within the meaning of the Code and the proceedings under the said provision have all the trappings applicable to adjudication of the suit. The statute gives finality to the order passed under Rule 98 or Rule 100 declaring as a decree with a provision for appeal. In that view, it is impermissible for the appellant to contend that summary dismissal in limine without adjudication on merits would not attract the bar under Rule 103 Order 21 of CPC., The dismissal of the application under Order 21 Rule 97 of CPC., is at the instance of the appellant amounting to withdrawal of the proceedings.
The provisions of Order 21 Rule 97 to 105 are exhaustive. The enquiry to be made and the questions to be determined under Rule 101 cover the disputes with regard to the title or the independent individual interest of the obstructor or the person in possession, which are to he adjudicated by the executing Court like a suit.
Decree granted in favour of the Appellant.
JUDGMENT
K. Sreedhar Rao, J.
1. The first respondent-owner obtained a decree for eviction against the third respondent in respect of a non-residential premise in HRC No. 1487/95. The eviction order in Ex.Case No. 1924/1996 is executed on 17.7.1996 and possession taken. The appellant contends that the third Respondent has sub-let the premises to him and that he has been paying rents to the first Respondent. Thereby, the first Respondent has recognised the independent tenancy rights of the appellant. The appellant is not a party to the decree for eviction in HRC No. 1487/95, as such the eviction of appellant by the decree is bad in law. The appellant setting up the above plea filed an application under Order 21 Rule 97 of CPC, for restoration of possession in EP No. 1924/96 filed by the first Respondent.
2. Before the Execution Court in EP No. 1924/96, the appellant and the first respondent have let in oral evidence. It appears at the stage of arguments, the appellant filed an affidavit to withdraw the application on the ground that he has filed a comprehensive suit in O.S. No. 10054/1997 regarding the same subject matter for the similar relief. The executing Court dismissed the application filed under Order 21 Rule 96 and 97 of CPC., at the request of the appellant.
3. The suit in O.S. No. 10054/1997 is dismissed on the ground as not maintainable since the appellant-plaintiff had invoked the remedy under order 21 Rule 96 and 97 of CPC., and that a separate suit is not maintainable.
4. It is pertinent to note that the application under Order 21 Rule 97 of CPC., was filed on 17.7.1996. The suit OS No. 10054/ 1997 in question is filed on 16.9.1997 that is, subsequent to the application under Order 21 Rule 97 of CPC. The appellant had not made any requests for withdrawal of the application under Order 21 Rule 97 of CPC., with a liberty to pursue the remedy by way of suit as envisaged under Order 23 Rule 1 of CPC.,
5. The decision of the Supreme Court reported in the case of N.S.S. Narayana Sarma And Ors. V. Goldstone Exports (P) Ltd., And Ors., it is held that the claim of the obstructor has to be adjudicated by the executing Court under Order 21 Rule 97 or Rule 99 of CPC., and not by a separate suit.
6. The full bench of this Court in the case of V.K. RAMA SETTY v. A. GOPINATH, has made the following observation in para 10 as follows:-
“10. We are of the view that keeping in view the language employed in Order XXI, Rule 99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under Rule 99 the use of word “may” gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. This explains the observation of the Division Bench. The Division Bench had not pronounced that even if an aggrieved person prefers an application under Rule 99, then still he will have a right to file a separate suit as well. We are clearly of the opinion that drawing of any such inference is a misreading of the judgment of the Division Bench since such an inference will be in the death of Rule 101 of Order 21, C.RC. and therefore the same cannot be held to be a good law, if at all it was intended to be so laid down. We do not find it necessary to record any detailed reasoning of our own on the said aspect since in our opinion, the issue is now finally concluded by the judgment of the Supreme Court in the case of NOORDUDDIN v. DR. K.L. ANAND,
7. The Learned Counsel for the appellant Sri S.V. Shastri strenuously contended that the order of dismissal made by the executing Court is only a summary dismissal and not an adjudication of the case on merits to attract the embargo of denial of right of failing a separate suit. The bar of separate suit would apply only when there is adjudication of the case on merits and not otherwise.
8. The provisions of Order 21 Rule 97 to 105 are exhaustive. The enquiry to be made and the questions to be determined under Rule 101 cover the disputes with regard to the title or the independent individual interest of the obstructor or the person in possession which are to be adjudicated by the executing Court like a suit.
9. The contention of the Learned Counsel for the appellant that the order in question is not a decree within the definition of Section 2(2), which reads thus:-
“2(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.”
10. The definition of a decree excludes an appealable order, but however, an order passed under Rule 98 or 100 is specifically declared as a decree within the meaning of the Code and the proceedings under the said provision have all the trappings applicable to adjudication of the suit. The statute gives finality to the order passed under Rule 98 or Rule 100 declaring as a decree with a provision for appeal. In that view, it is impermissible for the appellant to contend that summary dismissal in limine without adjudication on merits would not attract the bar under Rule 103 Order 21 of CPC. The dismissal of the application under Order 21 Rule 97 of CPC., is at the instance of the appellant amounting to withdrawal of the proceedings. It would make a difference in law if the suit filed by the appellant had preceded the filing of application under Order 21 Rule 97 of CPC. On the ground of avoiding simultaneous parallel proceedings, it is permissible for the appellant to have withdrawn the application under Order 21 Rule 97 of CPC. Thereby his right to continue the suit filed prior to invoking the jurisdiction under Order 21 rule 97 of CPC would not get affected. The appellant in the instant case has invoked the remedy under Order 21 Rule 97 of CPC initially after getting the petition dismissed as withdrawn files the suit subsequently that is rather impermissible in law since having invoked the jurisdiction under Order 21 Rule 97 of CPC. The appellant was bound to continue the proceedings. The proceedings under Order 21 Rule 97 of CPC have the character of a suit, it is permissible to withdraw the proceedings under Order 23 Rule 1 of CPC by making out a case to that effect. The appellant obviously is not granted the liberty to file a fresh suit. Therefore, the appellant having abandoned the proceedings under Order 21 Rule 97 of CPC is not entitled to file a separate suit in view of the bar under Rule 101. The order of the Trial Court in dismissing the separate suit as not maintainable is sound and proper.
11. The Learned Counsel for the first respondent fairly submitted that he is prepared to pay unconditionally Rs. 50000/- towards the alternative relief of the damages claimed in the suit. In view of the submissions of the Learned Counsel for the first respondent, a decree is granted in favour of the appellant for a sum of Rs. 50000/ – as damages.