PETITIONER: SHREENATH & ANOTHER Vs. RESPONDENT: RAJESH & OTHERS DATE OF JUDGMENT: 13/04/1998 BENCH: K. VENKATASWAMI, A.P. MISRA ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Misra, J.
The seekers of justice many a time has to take a loan
circuitous routes, both on account of hierarchy of Courts
and the procedural law. Such persons are and can be dragged
till the last ladder of the said hierarchy for receiving
justice but even here he only breaths earness of receiving
the fruits of that justice for which he has been aspiring to
receive. To reach this stage is in itself an achievement and
satisfaction as the, by then has passed through a long
arduous journey of the procedural law with may hurdles
replica of mountain attain with ridges and furrows. When he
is ready to take the bite of that fruit, he has to pass
through the same terrain of the procedural law in the
execution proceedings the morose is writ large on his face.
What looked inevitable to him to receive it at his hands
distance is deluded back into the horizon. The creation of
hierarchy of Courts was for a reasonable objective for
confering greater satisfaction to the parties that errors,
if any, by any of the lower Courts under the scruitiny of a
higher Court be rectified and long procedural laws also with
good intention to exclude and filter out all unwanted who
may be the cause of obstruction to such seekers in his
journey to justice. But this obviously is one of the causes
of delay in justice. Of course, under this pattern the party
wrongfully gaining within permissible limits also stretches
and litigation an much as possible. Thus, this has been the
cause of anxiety and concern of various authorities,
Legislators and Courts. How to eliminate such a long
consuming justice? We must confess that we have still to go
long way before true satisfaction in this regard is
received. Even after one reaches the stage of final decree,
he has to undergo a long distance by passing through the
ordained procedure in the execution proceedings before he
receives the bowl of justice.
The Courts within its limitations have been
interpreting the procedural laws so as to conclude all
possible disputes pertaining to the decreetal property which
is within fold in an execution proceeding i.e., including
what may be raised later by way of another bout of
litigations through a fresh suit. Similarly legislatures
equally are also endeavouring by amendments to achieve the
same objective. the present case is one in this regard.
Keeping this in view, we now proceed to examine the present
case.
In interpreting any procedural law, where more than one
interpretation is possible, the one which curtails the
procedure without eluding the justice is to be adopted. The
procedural law is always subservient to and is in aid to
justice. Any interpretation which eludes or frustrates the
receipient of justice is not to be followed.
This appeal arises out of the judgment and order of the
High Court of Madhya Pradesh, Bench at Indore, in Civil
Revision No. 406 of 1983.
The question raised is, whether the third party in
possession of a property claiming independent right as a
tenant not party to a decree under execution could resist
such decree by seeking adjudication of his objections under
order 21, Rule 97 of the Civil Procedure code?
The respondent No. 1, Rajesh, filed a suit for the
redemption of his mortgage against respondent No.2, Prem
Shanker, which was decreed. The decree directed the delivery
of vacant possession of the mortgaged property to the
applicant (Respondent No.1). In the said suit, admittedly,
the present appellants were not parties. The decree-holder
put his decree in execution in which the present appellants
obstructed on the ground that vacant possession cannot be
delivered in execution because they were the tenants in the
shop from the year 1952 much before the execution of the
mortgage which was in the year 1962, hence, only symbolical
possession can be given. There has been two rounds of
proceedings in execution. Initially, the Executing Court
held that the decree-holder was not entitled to take actual
possession in execution of the decree against the non-
applicants. The case of the decree-holder is that in the
suit it was held that the mortgagor had to deliver vacant
possession to the mortgagee. hence he is entitled to get
back vacant possession. Thus he made strong plea for a
vacant possession in terms of the decree. For him, it is
submitted that a similar objection was taken by the judgment
debtor Prem Shanker that only symbolic possession could be
given to the decree-holder. The objection was negatived by
the trial court, appellate court, and even by the High Court
in the second appeal. Hence, the executing court cannot go
behind the decree. The appellants case is they were not
parties to those proceedings. However, this objection of the
decree-holder was rejected in the first round by the
Executing Court and the Revisional Court holding that the
person resisting viz. the present appellants were not
parties to the suit nor there is any decree against them. It
seems subsequently, the decree-holder again moved another
application in the aforesaid execution case No. 1A of 19970-
81 for delivery of vacant possession. The present appellants
also moved an application/objections under order 21, Rule 97
C.P.C. resisting that they cannot be dispossessed in terms
of the said decree, as they were not parties to the said
suit nor they are deriving any right and title through the
Judgement debtor. They claim separate and independent legal
right, not affected either by the mortgage or redemption of
the mortgage. it is not clear as under what circumstances
the second application for actual possession was made by the
decree-holder after the matter was earlier disposed of.
Since this point seem not raised either before the Executing
Court or the High Court, we are not adverting to this point.
We find the Executing Court in the second round on
consideration of a subsequent decision of the Full Bench of
the M.P. High Court in Smt. Usha Jain and others Vs.
manmohan Bajaj and others (AIR 1980 (Vol 67) M.P. 146), held
that the appellants had no right to object to the decree
under order 21, Rule 97. The said full Bench held :-
“The executing Court has no
jurisdiction to start an enquiry
suo motu or at the instance of a
third party other than the decree-
holder/aution-purchaser under 0.21,
Rule 97. This rule is merely
permissive and not mandatory so
that the decree-holder/aution-
purchaser not resort to it against
his will and may even apply for
fresh warrant under 0.21, R. 35,
C.P.C. Executing Court is not bound
to stay its hands the moment a
third party files an objection to
the execution nor the stay would
continue till an unwilling decree-
holder/auction-purchaser is forced
to apply for investigation into the
right or title claimed by the third
party and negative the claim
therein. If the executing Court
were to stay its hands till
investigation into a third party’s
claim is not finally decided then
it would result in depriving the
decree-holder of his possession by
filing repeated spurious claims.
No enquiry into the title or
possession of a third party is
contemplated at any rate at his
instance either under Rules 35 and
36 or rules 95 and 96 of Order, 21,
C.P.C. when the decree-holder or
the auction-purchase applies for
obtaining possession. Subsequently
when the decree-holder or auction –
purchaser is met with obstruction
or resistancee in obtaining
possession, one of the options open
to him is to apply under Rule 97
but that provision is merely
permissive and not mandatory and it
is open to the decree-
holdr/auction-purchaser apply
instead for a fresh warrant of
possession. an enquiry at the
instance of a third party in
possession is contemplated only
under 0.21.R 100 after he was
dispossessed and not before it.
The omission by the executing
Court to investigate into the
objection filed by a third party
does not result in injustice to the
third party. It cannot be said that
he would have no remedy to protect
his possession and have his title
judicially investigated brief to
his dispossession his only remedy
then being under order 21, Rule 100
after dispossession. Another remedy
available to such a third party is
to institute an independent civil
suit for a declaration of his title
claiming therein the relief of
temporary injuction to protect his
possession.”
The High Court upheld the Executing Court’s order
following the said Full Bench decision of the M.P. High
Court. hence this appeal. The only question raised is,
whether the Full Bench decision is correctly decided. In
view of this Full Bench decision, objection of the appellant
was rejected without considering the points raised on merit
or other objections.
In order to appreciate the controversy, order 21, Rule
35, order 21, Rule 36 and order 21, Rule 97 are quoted
hereunder :-
“O. 21. R. 35: Decree for
immovable property :-
(1) 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, be removing any person
bound by the decree who refuses to
vacate the property.
(2) Where a decree is for the
joint possession of immovable
property, such possession shall be
delivered by affixing a copy of the
warrant in some conspicuous place
on the property and proclaiming by
beat of drum, or other customary
mode, at some convenient place, the
substance of the decree.
(3) Where a possession of any
building is enclosure is to be
delivered and the person in
possession, being bound by the
decree, does not afford free
access, the court, through its
officers, may, after giving
reasonable warning and facility to
any woman not appearing in public
according to the customs of the
country to withdraw, remove or open
any lock or bolt or break open any
door or do any other act necessary
for putting the decree-holder in
possession.
O.21, R.36 Decree for delivery
for immovable property when in
occupancy of tenant:-
Where a decree is for the
delivery of any immovable property
in the occupancy of a tenant or
other person entitled to occupy the
same and not bound by the decree to
relinquish such occupancy, the
court shall order delivery to be
made by affixing a copy of the
warrant in some conspicuous place
on the 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.
O.21, R. 97 : Resistance or
obstruction to possession of
immovable property :-
(1) Where the holder of a
decree for the possession of
immovable property 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) 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.”
This sub-clause (2) was substituted by the Amending Act
1976. Earlier sub-clause (2) was :
“The Court shall fix a day of
investigating the matter and shall
summon the party against whom the
application is made to appear and
answer the same.”
Under sub-clause 1 order 21, Rule 35, the Executing
Court delivers actual physical possession of the disputed
property to the 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 he 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 a copy of the warrant in some
conspicuous place of the 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 a 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 Courts 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 ammended 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 a
stranger is adjudicated and finality given even in the
executing 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 claim made in any such application under order 21, Rule
97. Thus by the use of the words ‘any person’ it includes
all persons resisisting the delivery of possession, claiming
right in the property even those not bound by the decree,
includes tenants or other persons claiming right on their
own including a stranger.
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 religate
itself to the long drawn out arduous proceedure of a fresh
suit. This is to salvage the possible hardship both to the
decree-holder and other person claiming title on their own
right to get it adjudicated in the very execution
proceedings. We find that order 21, Rule 35 deals with cases
of delivery of possession of an immovable property to the
decree-holder by delivery of actual physical possession and
by removing any person in possession who is bound by a
decree, while under Order 21, Rule 36 only symbolic
possession is given where tenant is in actual possession.
Order 21, rule 97 as aforesaid, conceives of cases where
delivery of possession to decree-holder or purchaser is
resisted by any person. ‘Any person’ , as aforesaid, is wide
enough to include even a person not bound by a decree or
claiming right in the property on his own including that of
a tenant including stranger.
Prior to the 1976 Ammending Act, provisions under Order
21, Rules 97 to 101 and 103 were different which are quoted
hereunder :-
“97.(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 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.
98. 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.
99. 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.
100. (1) Where any person other
than the judgment-debtor is
dispossessed of immovable property
by the holder of a decree for he
possession of such property or,
where such property or where such
property has been sold in execution
of a decree, by 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 an answer the
same.
101. 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.
103. Any party not being a
judgment-debtor against whom an
order is made under rule 98, rule
99 and 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.”
So far sub-clause (1) of Rule 97 the provision is same
but after 1976 amendment all disputes relating to the
property made under Rules 97 and 99 is to be adjudicated
under Rule 101, while under unamended provision under sub-
clause (2) of Rule 97, the Executing Court issues summons to
any such person obstructing possession over the decretal
property. After investigation under Rule 98 he Court puts
back a decree-holder in possession where the Court finds
obstruction was occassioned without any just cause, while
under rule 99 where obstruction was by a person claiming in
good faith to be in possession of the property on his own
right, the Court has to dismiss the decree-holder
application. Thus even prior to 1976 right of any person
claiming right on his own or as a tenant, not party to the
suit such person’s right has to be adjudicated under rule 99
and he need not fall back to file a separate suit, By this,
he is saved from a long litigation. So a tenant or any
person claiming a right in the property, on his own, if
resists delivery of possession to the decree-holder the
dispute and his claim has to be decided after 1976 amendment
under Rule 97 read with Rule 101 and prior to the amendment
under Rule 97 read with Rule 99. However, under the old law,
in cases order is passed against the person resisting
possession under Rule 97 read with Rule 99 then by virtue of
Rule 103, as it then was, he has to file a suit to establish
his right. But now after the amendment one need not file
suit even in such cases as all disputes are to be settled
by the Executing court itself finally under rule 101.
We find both either under the old law or the present
law the right of a tenant or any person claiming right on
his own of the property in case he resists, his objection
under order 21, Rule 97, has to be decided by the Executing
court itself.
Rule 100 of the old law, as referred in the aforesaid
Full Bench decision of the madhya Pradesh High Court is a
situation different from what is covered by Rule 97. Under
rule 100 (old law) and Order 99 the new law covers cases
where persons other than judgment-debtor is dispossessed of
immovable property by the decree-holder, of course, such
cases are also covered to be decided by the Executing Court.
but this will not defeat the right of such person to get his
objection decided under Rule 97 which is a stage prior to
his dispossession or a case where he is in possession. In
other words, when such person is in possession the
adjudication to be under rule 97 and in case dispossessed
adjudication to be under rule 100 (old law) and Rule 99
under the new law. Thus a person holding possession of an
immovable property on his own right can object in the
execution proceeding under Order 21, rule 97. One has not to
wait for his dispossession to enable him to participate in
the execution proceedings. This shows that such person can
object and get adjudication when he is sought to be
dispossessed by the decree-holder. For all the aforesaid
reasons, we do not find the Full Bench in Smt. Usha jain
(supra) correctly decided the law.
In Noorduddin Vs. Dr. K.L. Anand (1995 (1) SCC 242) it
is held :-
“Para B: Thus the scheme of
the Code clearly adumbrates that
when an application has been made
under Order 21, Rule 97, the court
is enjoinded to adjudicate upon the
right, title and interest claimed
in the property arising between the
parties to a proceeding or between
the decree-holder and the person
claiming independent right, title
or interest in the immovable
property and an order in that
behalf be made. the determination
shall be conclusive between the
parties as if it was a decree
subject or right of appeal and not
a matter to be agitated by a
separate suit. In other words, no
other proceedings were allowed to
be taken. It has to be remembered
that preceding Civil Procedure Code
Amendement Act, 1976, right of suit
under Order 21, rule 103 of 1908
code was available which has been
now taken away. By necessary
implication, the legislature
relegated the parties to an
adjudication of right, title or
interest in the immovable property
under execution and finality has
been accorded to it. Thus, the
scheme of the Code appears to be to
put an and to the protraction of
the execution and to shorten the
litigation between the parties or
persons claiming right, title and
interest in the immovable property
in exeuction.”
In Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and
Another (1997) (3) SCC 694), the question raised was whether
a stranger occuping the premises on his own right when
offered resistance to the execution of the decree obtained
by the decree holder can or cannot request the Executing
Court to adjudicate his claim without being insisted upon
that first he must handover the possession and then move an
application under Order 21, Rule 97. It is held in para 9 :-
“Para 9 : In short the
aforesaid statutory provisions of
Order 21 lay down a complete code
for resolving all disputes
pertaining to execution of the
decree for possession obtained by a
decree-holder and whose attempts at
executing the said decree meet with
rough weather. Once resistance is
offered by a purported stranger to
the decree and which comes to be
noted by the executing court as
well as by the decree-holder the
remedy available to the decree-
holder the remedy available to the
decree-holder against such an
obstructionist is only under Order
21, Rule 97, sub-rule (1) and he
cannot bypass such obstruction and
insist on reissuance of warrant for
possession under Order 21, Rule 35
with the help of police force, as
that course would amount to
bypassing and circumventing the
procedure laid down under Order 21,
Rule 97.. ……………”
In view of the aforesaid finding and the law being well
settled the interpretation given by the aforesaid full Bench
of the M.P. High Court in the case of Usha Jain Vs.Manmohan
Bajaj (supra) cannot be held to be a good law. As we have
recorded above, both the Executing Court and the High court
have rejected the application of the applicant under Order
21, Rule 97 only on the basis of the said Full Bench
decision, hence the said order cannot be sustained.
Accordingly, both the orders dated 20th February, 1985
passed by the High Court in civil Revision No. 406 of 1983
and the order dated 20th April, 1983 passed by Executing
Court in execution case No. 1-A/70/81 is herewith quashed.
We direct the Executing Court to consider and dispose
of the objections and the application of the appellants
under Order 21, Rule 97 after giving opportunity to the
parties in accordance with law. The appeal is accordingly
allowed. On the facts and circumstances of the case, cost on
the parties.