JUDGMENT
A.M. Khanwilkar, J.
1. Both these writ petitions can be disposed of together by a common judgment as the issues involved are common and arise out of derivative proceedings during the execution of the decree passed in favour of the Petitioners in R. A. E. & R, Suit No. 928/5431 of 1977.
2. The Petitioners are the owners and landlords of building known as “Construction House” at Walchand Hirachand Marg, Ballard Estate, Mumbai 400 038. The Petitioners filed suit for eviction against the respondent No. 1 – tenant in respect of the demised premises, being R. A. E. & R. Suit No. 928/5431 of 1977. The said suit was decreed by the Small Causes Court on 17th February, 1992 directing the respondent No. 1 to deliver vacant and peaceful possession of the demised premises to the Petitioners. The respondent. No. 1, however, carried the matter in appeal, which appeal was rejected by the Appellate Bench on 30th April, 1993. Against this order the respondent No. 1 filed Writ Petition under Article 227 of the Constitution of India, being Writ Petition No. 3010 of 1993. Even that Writ Petition came to be rejected on 15th September, 1993. Thereafter, the respondent No. 1 took the matter before the Apex Court by way of Special Leave Petition which was eventually dismissed on 15th October, 1993. After the decree passed against the respondent No. 1 became final, the Petitioners took out execution proceedings for possession of the demised premises on October 19, 1993. The Executing Court was pleased to issue order for warrant of possession on November 8, 1993. On an application on 25.11.1993 and 14.12.1993 the Petitioners got the date of execution of warrant extended from the Registrar. Eventually, when the warrant of possession was sought to be executed on December 1 7, 1993 with the help of Bailiff, the same was obstructed by 12 persons named in the Bailiffs report of the same date, which included respondent Nos. 8 and 9 herein as obstructionist Nos. 7 and 8 respectively. All those persons claimed to be in lawful possession of the demised premises for more than last, ten years, whereas the partners of the respondent No. 1 were not found in the demised premises during the execution. The Bailiff report dated 17.12.1993 mentions the above claim made by the said 12 persons who had obstructed the execution. Going by the claim of those persons as recorded in the Bailiff’s report, they were inducted by the respondent. No. 1 in the demised premises only in or around ten years prior to 1993 i.e. around 1982, which is obviously during the pendency of the suit for recovery of possession instituted against the respondent No. 1 in the year 1977. This assumes relevance as even the respondent No. 1 – Defendant at no point of time during the action against him right from the Trial Court till the Apex Court ever indicated that some one else was in occupation of the suit premises. If this is correct then these Obstructionists have no protection under the provisions of the Rent Act and could not have justly resisted the execution. All those persons who obstructed the execution on 17.2.1993 have been impleaded as respondent Nos. 2 to 14 in these writ petitions. In view of the obstruction caused by the said persons, Petitioners took out Obstructionist Notice before the Executing Court on January 15, 1994. In the said notice the Petitioners clearly asserted that the Obstructionists were claiming through the original defendants and obstruction has been caused mala fide and without any just cause and obviously at the behest of the original defendant respondent No. 1 herein. According to the Petitioners, the Obstructionists were the employees and the sister concerns of the original defendants; And that they were not protected under the provisions of the Bombay Rent Act for which reason the obstruction caused by them will have to be removed forthwith. The record indicates that this Obstruction Notice was moved before the Executing Court on January 15, 1994 and that Court was pleased to issue notice returnable on February 8, 1994. However, the Petitioners did not pursue the said proceedings to its logical end, but instead in April, 1994 they applied to the Registrar to renew the warrant of possession which was granted earlier for further period of 10 days. In this application it was stated on behalf of the Petitioners that the earlier warrant of possession could not be executed since the defendant was not available in the suit premises but now that the defendant was available, request for issuance of warrant of possession was renewed by the said application. On this application the concerned Registrar appears to have put an endorsement that there is no stay till today and consequently renewed the warrant as prayed for on April 19, 1994, Pursuant to the said order, the concerned Bailiff Shri S.Y. Thombare who had attempted to execute the earlier warrant on December 17, 1993, applied to the Additional Registrar to provide him with the assistance of one Senior Bailiff having regard to the volume of work involved. This request of the Bailiff was acceded to by the Registrar by providing assistance of another Bailiff Shri S.R.
Nachankar. The Bailiff in charge thereafter requested the Senior Inspector of Police, Phaltan Road Police Station, by letter dated April 20, 1994, to provide five Police Constables and one Senior Inspector to assist him during the execution of warrant of possession on April 29, 1994 at 10.00 a.m. Pursuant to the said request, necessary police assistance was provided to the Bailiff, who in turn is stated to have reached at the demised premises around 10.30 a.m. on April 29, 1994 and commenced execution of warrant of possession. The Bailiffs report prepared on the same date clearly indicates that the partner of the respondent No. 1 firm Deelip Patel, Accountant Shamsunder Gawde, two employees Shri Santosh Sathilkar and Jagdish Gohil and Ghanshyam Patel were present in the suit premises and that they were told about the purpose of the visit. That report also records that those persons assisted the Bailiff in removing their goods and belongings from the demised premises so as to hand over vacant possession of the suit premises. In other words, the respondent No. 1 original defendant through its abovenamed partner and employees handed over vacant and peaceful possession of the demised premises to the Bailiff, who in turn handed over the same to the petitioners on the same day. According to the petitioners, after they obtained vacant and peaceful possession of the demised premises immediately on the same day inducted M/s. Hindustan Construction Ltd. as tenant in the suit premises. The said Hindustan Construction Ltd. was already tenant on the 3rd and 5th floors of the said building. It is conceded on behalf of the petitioners that the said M/s. Hindustan Construction Co. Ltd. is one of the sister company of the petitioners, but undoubtedly an independent legal entity and a separate juristic person. The respondent Nos. 8 and 9 herein – Obstructionist Nos. 7 and 8 respectively, thereafter, on 2nd May, 1994, filed applications before the Executing Court for setting aside the execution of the warrant and for restoration of possession of the suit premises. It is relevant to note that the said M/s. Hindustan Construction Co. Ltd. which was put in possession of the suit premises was not made party to these proceedings. Be that as it may, in both these applications the said respondent Nos. 8 and 9 have asserted that they were in use, occupation and possession of separate self contained independent demarcated portion of the premises on the ground floor of the building. They have made grievance that although their obstruction has been registered, the petitioners without perusing the Obstructionist Notice to its logical end have fraudulently got the warrant of possession renewed and surreptitiously got the same executed behind their back without any notice to them. According to respondent Nos. 8 and 9 herein, the petitioners have in effect taken forcible possession of the premises which were in their possession in their own rights and ignoring their claim set up by them by putting up obstruction. Be it noted that although twelve persons had obstructed the execution but only respondent Nos. 8 and 9 have challenged the action of taking over of possession by the petitioners. Even before this Court only respondent Nos. 8 and 9 have appeared and contested this proceeding. According to the contesting respondents, the Bailiff and persons accompanying him, including 15 employees of the petitioners, removed their articles and belongings such as tables, chairs, A.C. type writer and office record and office equipments and dumped the same on the footpath abutting the premises and took forcible possession in this manner. The respondents have further asserted that though the Bailiff report records that Deelip Patel, one of the partner of the respondent No. 1 was present at the relevant time, however, in fact, according to the respondents, the said Deelip Patel had gone to attend some Court proceedings between 10.30 a.m. and 12.00 noon on that day and was not present on the premises at all. Accordingly, the case as made out in the applications against the petitioners is one of criminal conspiracy hatched by them and a fraud has been perpetrated on the Court in obtaining possession of the demised premises. In the circumstances, the contesting respondents prayed for restoration of premises viz. the ground floor of the suit building and for consequential reliefs.
3. This application was resisted by the petitioners by filing a detailed reply. In the first place the petitioners raised preliminary objection regarding the maintainability of the application taken out by the respondent Nos. 8 and 9 herein. The petitioners further contended that the application as presented by the respondent Nos. 8 and 9 herein does not disclose as to under which provision the same has been filed; whereas, according to the petitioners, the respondents could pursue remedy only in terms of provisions of Order 21, Rule 99 of the C. P.C. Besides, on merits the petitioners contended that, the applications as filed alleging fraud committed by the petitioners is wholly misconceived and respondents have made false and reckless allegations in that behalf. It is asserted on behalf of the petitioners that Ghanshyam J. Patel was present when the Bailiff got warrant of possession executed. That fact is not only recorded in Bailiffs report but is also fortified by the photographs taken at the relevant point of time which shows the presence of the said Ghanshyam Patel, Deelip Patel along with others, who assisted them during the execution. Moreover, the petitioners contended that the respondents have not chosen to file any affidavit of Deelip Patel to support the case set up by them that the petitioners had committed fraud or created false record of execution of warrant. The petitioners categorically denied each of the allegation of fraud or any irregularity committed by them and further asserted that they had
bona fide applied for renewal of warrant of possession after they became aware that original defendant was very much available in the suit premises so that the decree could be executed. The petitioners further asserted that the respondents were fully aware that the petitioners had filed an application for renewal of warrant of possession in as much as the respondents were keeping close watch on the proceedings. According to them, this fact can be inferred as both the contesting respondents had without filing their appearance before the Trial Court were successful in obtaining the certified copies of all the record from the Executing Court and filed the subject applications with utmost dispatch. The petitioners further asserted that, in absence of respondents disclosing the basic details as to which portion of the demised premises was in their exclusive possession, the area of the said premises and from which period they are in occupation of such portion and in what capacity, they were not entitled to claim any relief from the Executing Court as prayed. The petitioners further asserted that the said respondents have been set up by the respondent No. 1 original defendant and have been obviously inducted during the pendency of the suit and that they had no right or protection under the provisions of the Bombay Rent Act. Accordingly, the petitioners claimed that the applications preferred by the respondent Nos. 8 and 9 herein be dismissed.
4. In response to the reply filed by the petitioners, the said respondents filed rejoinder affidavit in which they took specific stand that they have filed the said application under Section 151 of the C.P.C. and not under the provisions of Order 21, Rule 99 of the C.P.C. According to them, the provisions of Order 21, Rule 99 were not available to the said respondents; and the appropriate remedy was only under Section 151 of the C.P.C. having regard to the manner in which the petitioners had dispossessed them by playing fraud upon the Court. In the circumstances, it is contended that it is only by virtue of the inherent powers under Section 151 of the Code that the Court can remedy the mischief. In other words, the stand taken on behalf of the said respondents was very categoric that the applications filed by them were under Section 151 of the C.P.C. on the premise that the petitioners had played fraud and obtained possession of the demised premises inappropriately,
5. The Court below on analysing the rival contentions proceeded to accept the plea of the respondents that in the fact situation of the present case the only remedy available to them was under Section 151 of the Code and not under Order 21 of Rule 99. The Lower Court, however, in para 16 of its judgment has concluded that the warrant was got executed by the petitioners from the learned Registrar if not by applying fraud upon him, by misrepresenting the facts. The Court below, therefore, took the view that in such a situation the only appropriate remedy is to invoke inherent powers of the Court under Section 151 of the Code. In the circumstances, the Trial Court by the impugned order dated June 30, 1994, allowed both the applications preferred by the respondent
Nos. 8 and 9 respectively and ordered the petitioners to restore the vacant and peaceful possession of the demised premises on the ground floor of the suit building to the said respondents. The aforesaid view taken by the Trial Court is the subject matter of challenge in the present writ petition under Article 227 of the Constitution of India.
6. The Counsel for the petitioners mainly contends that assuming that the respondent Nos. 8 and 9 have been dispossessed by the petitioners, the only remedy available to them was of filing application under Order 21, Rule 99 of the Code. In other words, it is contended that Section 151 which is inherent powers of the Court ought not to have been invoked when specific provision was available in the Code to remedy the mischief and could have been resorted to by the affected party. It is contended that having regard to the scheme of the provisions of Order 21 it is possible to take the view that the provisions of Section 151 of the Code are excluded by necessary implication. It is, therefore, contended that the application preferred by the respondents before the Executing Court was not maintainable in law. It is then contended that assuming that Section 151 is not totally excluded and can be said to be available only in certain peculiar cases which are not covered by the provisions of Order 21, Rule 99 of the Code, even then the interference under Section 151 being inherent powers, should be resorted to sparingly. It is argued that in the present case the applications as presented by the respondents were palpably vague much less silent about the material details as to how and since when the demised premises were in their occupation and the nature of their rights which they could legitimately claim therein. It is contended that the respondent Nos. 8 and 9 were persons who could not have justly and legitimately resisted the execution proceedings; And by this process cannot be put back in possession on the basis of such a vague plea even if there has been some irregularity in the execution of the decree, for that would amount to granting premium to the unauthorized persons as the decree holder would be forced to undergo the rigmarole of further legal proceedings to obtain the physical possession of the suit premises from such unauthorised persons. It is further contended that, in any case, admittedly, the petitioners have inducted a third person as a tenant in the demised premises immediately on getting possession thereof. In that sense, rights in favour of third party has been created, therefore, the Court ought not to have directed the petitioners to restore possession of the demised premises which in fact was in physical occupation of some other person and that person was no before the Court. In that sense, it was contended that, the relief of restoration of possession of the premises was totally unwarranted having regard to the peculiar facts of the present case. The Counsel for the petitioners very fairly conceded that no doubt that third party who has been inducted in the suit premises is the sister concern of the petitioners, but that would be of no consequence because that third party is a separate juristic person and was entitled to defend possession in its own rights. The learned Counsel for the petitioners also fairly conceded that no doubt the petitioners did not pursue the application under Order 21, Rule 97 to its logical end and instead applied for enforcement of warrant of possession. But, according to him, that course was adopted on the basis of the legal position as it obtained at that relevant time. He submits that the petitioners cannot be blamed for the changed legal position and In any case that changed situation cannot be used to describe their action as fraud or mala fide. According to the learned Counsel, it is incomprehensible as to how the petitioners can be imputed with having committed fraud or having misrepresented the officers of the Court so as to warrant invocation of inherent powers under Section 151 of the Code. In the circumstances, it is contended that the approach of the Court below was manifestly wrong and cannot be sustained either on facts or in law.
7. The Counsel for the respondent Nos. 8 and 9 on the other hand mainly adopted the reasons given by the Court below to support the order for restoration of possession. He submits that once obstruction was registered at the time of execution of the decree it was incumbent on the decree holder to take out Obstructionist Notice under Order 21, Rule 97 and get the same removed in accordance with law. He submits that this legal position is now well settled. He submits that in the present case the petitioners instead of pursuing the said remedy and which was very much initiated, got the warrant of possession renewed by suppressing the material facts from the Registrar of the Executing Court. He contends that all the circumstances put together would leave no manner of doubt that the petitioners have committed fraud and misrepresented the Court in obtaining renewal of warrant of possession and consequently obtained possession of the demised premises by fraudulent and illegal means. He therefore, submits that in such a case the only appropriate remedy would be to invoke inherent powers of the Court under Section 151 of the Code. According to him, third party i.e. other than the judgment debtor, who has been dispossessed by means of such fraudulent and illegal action cannot apply for restoration of possession under the provisions of Order 21, Rule 99 of the Code; And, therefore, the application as presented by the respondent under Section 151 of the Code was not only available but the only remedy to set right the mischief committed of obtaining the possession of the demised premises behind the back of the said respondents. It is, therefore, contended that no interference was warranted with regard to the ultimate conclusion reached by the Court below directing the petitioners to restore possession of the demised premises to the said respondents. He contends that no person can be allowed to take advantage of his own wrong. According to him, in the present case, it would be seen that it was mistake of the Registrar in not verifying the record before granting renewal of the execution of warrant of possession. He therefore, submits that an act of Court cannot prejudice any person and therefore in such a situation the only course open to correct the mistake was to exercise inherent powers under Section 151 of the Code and pass appropriate orders to do substantial justice in the matter. He further contends that in the present case the Trial Court having recorded a clear finding that the petitioners obtained possession by misrepresenting the relevant facts to the officer of the Court, therefore, it was justified in invoking its inherent powers under Section 151 of the Code. He submits that this writ petition under Article 227 of the Constitution of India, at the instance of such persons ought not to be entertained by this Court.
8. Before I proceed to examine the rival submissions I would think it apposite to reproduce the relevant provisions of Order 21 of the Code as applicable to the State of Maharashtra, Goa, Daman and Diu in view of the Bombay amendment, the same read thus :
Resistance to delivery of possession to decree holder or purchaser.
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 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,
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. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
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.
100. Order to be passed upon application complaining of dispossession.-Upon the determination of the question referred to in Rule 101, the 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.
Where it is determined that the application is made by person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under
Sub-rule (a) above.
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, he deemed to have jurisdiction to decide such questions :
Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other Competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.
102. (Deleted by Bombay Amendment).
103. Orders to be treated as decree.- 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 an appeal or otherwise as if it were a decree.
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 the 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.
9. Having considered the rival submissions the first question that needs to be addressed is : whether the provisions of Section 151 of the Code can be said to be expressly or by necessary implication excluded. Section 151 of the Code recognizes the fundamental principle of existence of Inherent powers of the Court to make such orders as it may think necessary for the ends of justice or to protect the basic principle of rule of law. However, when we look at the scheme of the provisions of Order 21 of the Code, it would appear that the said provisions are self contained Code. Even the Apex Court had occasion to examine the scheme of the said provisions and has found it to be a self contained Code. In the first place, as Order 21 of the Code forms part, of First Schedule of the C.P.C., it has the effect as if enacted in the body of the Code, by virtue of Section 121 of the Code. What is relevant to note is that during the execution of the decree if any resistance or obstruction to possession is set up then the holder of a decree is required to make an application under Order 21, Rule 97 of the C.P.C.; Similarly when any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree then that person has to make an application under Order 21, Rule 99 of the C.P.C. In both the situations the Court has been invested with power to pass such other order as, in the circumstances of the case, it may deem fit. Such an express provision is made in the shape of Clause (b) to Rule 98 as well as Rule 100 where under the Court would pass orders on the applications made by the concerned party. Those provisions are reiteration of the existence of the inherent powers of the Court. Moreover, Rule 101 postulates that “all questions” arising between the parties to a proceeding under the above said provisions, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application. Besides, the order that is passed on the application under these provisions is upon adjudication. The parties can be permitted to adduce evidence in support of their respective claim because, the order that is passed by the Court is treated as a decree of the Court by virtue of Rule 103. If such is the scheme of the provisions of Order 21 of the Code then there can be no reason to invoke the provisions of Section 151 of the Code. To my mind, as is the settled position, the party can be allowed to take recourse to Section 151 of the Code, only when the grievance made by it is outside the remedy provided by Rule 97 or Rule 99 as the case may be. The Court would not readily entertain the application under Section 151 merely because of allegation of fraud or misrepresentation, for even that question can be effectively considered by the Court in exercise of provisions of Order 21 of the Code.
10. We shall now advert, to the decisions relied upon on the purport of Section 151 of the Code. The Supreme Court in Padam Sen and Anr. v. State of Uttar Pradesh of the said decision has observed that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognised that the inherent power is not to be exercise in a manner which will be contrary to or different from the procedure expressly provided in the Code. In para 9 of the same decision the Apex Court has observed that the inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. The Apex Court has further observed that specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possession all the essential powers to regulate its practice and procedure.
11. The next decision is in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal . In para 18 of this decision the Apex Court has observed that:
It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ‘if it is so prescribed1 is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. No party has a right to insist on the Court’s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so.
(Emphasis supplied)
In para 21 of the same judgment the Apex Court further observed that: Those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice. In para 23 of the decision, the Apex Court observed that – Section itself (Section 151) says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. Further, the inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.
12. Another decision of the Apex Court in Nainsingh v. Koonwarjee and Ors. it is observed that inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further, the power under Section 151 of the Code cannot be exercised as an appellate power.
13. The contesting respondent Nos. 8 and 9, however, have relied on the decision of the Apex Court in Mulraj v. Murti Raghunathji Maharaj thereof with regard to the inherent powers of the Code. To my mind, this decision does not depart from the consistent view taken by the Apex Court that where party has his remedy provided elsewhere in the Code, such provisions should be followed and inherent jurisdiction should not be invoked. As observed earlier, the scheme of the provisions of Order 21 of the C.P.C. leave no manner of doubt that complete remedy was and is available to the respondent Nos. 8 and 9 to efface the alleged mischief. In such a situation it would be inappropriate for the Court to by pass such express remedy which would require the parties to establish the allegations and their claim inter se, by invoking its inherent jurisdiction and decide the controversy in a summary manner; and more so, deprive the affected party of further remedy of appeal against the decree, as order passed on an application under Rule 97 or 99 as the case may be has the effect of a decree. In other words, the specific provisions of Order 21 of the C.P.C. would meet the necessities of the fact situation of the present case and in such a case the Court would be duty – bound to follow the express statutory provisions and should be loath to invoke its inherent powers under Section 151 of the Code.
14. The learned Counsel for the contesting respondents to get over the above position contends that in the present case it can be demonstrated that the petitioners had hatched a criminal conspiracy and played fraud upon the officer of the Executing Court and at any rate misrepresented the said officer of the Court. According to him, therefore, in such a case, the Court would be duty – bound to invoke its inherent powers to set right the fraudulent act of the petitioners. At the first blush this submission seemed to be attractive but on close examination of the relevant provisions I am inclined to take the view that this argument is devoid of merits. It was argued that the contesting respondent Nos. 8 and 9 have been dispossessed in fraudulent manner in spite of having obstructed the execution of the decree on the earlier occasion, in such a case they cannot take recourse to the remedy under the provisions of Order 21, Rule 99 of the C.P.C. To my mind, this submission is totally misconceived. On plain language of the provisions of Rule 99 it would appear that the same is wide enough to envelope the situation that has arisen in the present case Rule 99 postulates that if 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. If we were to accept the contention advanced on behalf of the respondents that the remedy under Rule 99 was unavailable to them that would entail in taking a pedantic view of the said provision. The same cannot be countenanced. In my view therefore, the appropriate remedy for the said respondents was to prefer an application under Rule 99 and not straightway take recourse to the provisions of Section 151 of the Code. It will be useful to advert to the observations of the Apex Court in the judgment in the case of Brahmadeo Choudhary v. Rishikesh Prasad Jaiswal and Anr. . In para 4 of the said judgment, the Apex Court has analysed the purport and scheme of Order 21 in particular Rules 97, 98, 99, 100 and 101. The Apex Court has observed thus :
A conjoint, reading of Order XXI, Rules 97. 98, 99 and 101 projects the following picture :
(1) If a decree holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XII, Rule 35, then the decree holder has to move an application under Order XXI, Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI, Rule 97 Sub-rule (2) read with Order XXI, Rule 98. It is obvious that, after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI, Rule 98 Sub-rule (2) and the decree holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XI, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate Appellate Court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI, Rule 99, Civil Procedure Code claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI, Rule 98 Sub-rule (1), Civil Procedure Code the Executing Court can direct the stranger applicant under Order XXI, Rule 99 to be put in possession of the property or if his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI, Rule 98 Sub-rule (1) would be deemed to be a decree as laid down by Order XXI, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI, Rule 101.
In para 5 of the same decision the Apex Court has observed that the provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree. The Apex Court has observed that Order XXI, Rule 99 deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgment debtor. This enquiry in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI. It has been further observed that the statutory scheme of Order 21 provides a statutory remedy both to the decree holder as well as to the stranger, such as the respondent Nos. 8 and 9 herein, to have their respective say in the matter and to get proper adjudication which is subject to the hierarchy of appeals would remain binding between the parties to such proceedings and is a complete code and the “sole remedy” for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. Indubitably, the abovesaid view has been reiterated in other decisions on which reliance was placed, Shreenath and Anr. v. Rajesh and Ors. ; Silverline Forum Pvt. Ltd. v. Rajiv Trust, and Anr. .
In Brahmadeo’s case (supra) the Apex Court was dealing with a peculiar question where the Patna High Court had held that a stranger though entitled to claim an independent right, title and interest in the decretal property is to go by Order 21, Rule 99 of the Code. The Apex Court held that such a view was not consistent with the statutory scheme as that person could offer resistance before getting actually dispossessed.
15. In the present case however, the contesting respondents had offered resistance to the execution of the warrant of possession, pursuant to which the petitioners landlords being decree holders took out obstructionist notice under Rule 97 but. instead of pursuing the said notice to its logical end the petitioners got the warrant of possession reissued and obtained possession of the demised premises in execution thereof. No doubt after Brahmadeo’s case (supra) such a course is impermissible. The fact remains that the petitioners have obtained possession of the demised premises on the basis of the legal position as it obtained then. The manner in which possession has been obtained by the petitioners will not be relevant for our purpose for the time being. According to the petitioners, they were advised to get the warrant of possession reissued and pursue that remedy even while application under Rule 97 for removal of obstruction set up including by the respondent Nos. 8 and 9 was pending, on the basis of the legal position as it obtained then. The fact remains that the petitioners got the warrant of possession executed and have obtained possession of the suit premises thereby the respondent Nos. 8 and 9 have stated to be dispossessed. If that be so, the only remedy for the said respondents was to take out application under Rule 99. To obviate that course, which perhaps was the only appropriate remedy, the said respondents contend that they could invoke proceedings under Section 151 of the Code as they have been dispossessed fraudulently. Even in situation such as the present one, provisions of Order 21 was the “complete remedy” as the question of fraud and misrepresentation could also be adjudicated therein. I would be fortified in this view also in view of the principle underlying the decision of the Apex Court in NTC (Maharashtra State) Ltd. v. Standard Chartered Bank and Anr. . In that case the petitioner claiming to be dispossessed by “fraud” had filed writ petition, but the Apex Court held that the question of fraud was basically a question of fact and the proper course open to the petitioner therein was to move an application under Order 21 of the Code. The argument pressed into service that it is a case of fraud and therefore the Court should first remedy the mischief by putting back the contesting respondents in possession is devoid of merits. Applying the principle underlying the above decision the question of fraud or misrepresentation will have to be decided by following the procedure prescribed by the provisions of Order 21, Rule 99. Even while dealing with application under Rule 99 there is ample power in the Court to pass such other order as, in the circumstances of the case, it may deem fit, by virtue of Rule 100(b). The expression “such other order” would obviously mean other than making an order allowing the application and directing that the applicant be put into the possession of the property. It is therefore inappropriate to contend that the contesting respondents had no remedy except one under Section 151 of the Code.
16. The Court below has proceeded on an erroneous premise that since the contesting respondents were dispossessed during the pendency of the Obstructionist Notice, no remedy under Rule 99 was available. This assumption is plainly preposterous. As observed earlier, on plain language of Rule 99 it is seen that if a third person is dispossessed from the immoveable property in whatsoever situation including the case such as the present one, by the holder of the decree, then such a person can take recourse to Rule 99 and complain before the Executing Court of such illegal dispossession and claim for restoration of possession of such property.
17. The Executing Court then proceeded on the premise that since the petitioner got the decree executed if not by fraud, by misrepresenting the relevant facts, therefore, the Court was duty-bound to invoke its inherent powers under Section 151 of the Code. Even this premise is wholly inappropriate, for the allegations of fraud or misrepresentation could be adjudicated in application under Rule 99. Be that as it may, it is to be noted that the contesting respondents approached the Executing Court with a specific plea that the petitioners have played fraud upon the Court. But that allegation of fraud is based on various circumstances which are referred to in the application itself. Even taking all those circumstances together, the Court has observed that it may not be a case of fraud but surely a case of misrepresentation. To my mind however, on close scrutiny of the materials on record, prima facie, it would appear that even the case of misrepresentation has not been very clearly established. In as much as the petitioners have taken a clear stand that although the Obstructionist Notice was preferred by them for removing the obstruction and the same was pending, they were not obliged to pursue the said remedy and it was open for them to get the warrant of possession renewed. This stand has been taken on the basis of the legal position as it obtained then (See AIR 1933 Bom. 457 (F.B.); ; AIR 1957 Trav. 287; AIR 1919 Pat. 425, and ). The Executing Court has accepted this plea taken by the petitioners in its judgment in para 23 wherein it has been observed that : “I fully agree with the view expressed by Mr. Mogre as his argument on this point is found well supported by a number of decisions cited by him on the point.” Once this finding is reached, it will be inappropriate to even then assume that the petitioners had any mala fide intention in renewing the warrant of possession, for they did so on the legal advise and which legal advise was supported by the settled legal position as it obtained at the relevant time. If the legal position has subsequently undergone change then surely that cannot be the basis for assuming that petitioners had misrepresented the officer of the Court. In that sense, even the case of misrepresentation appears to be somewhat doubtful. If that be so, the basis on which the application under Section 151 has been instituted becomes unavailable and, therefore, such an application cannot proceed further.
18. Besides, it is relevant to point out that the petitioners took specific plea that the assertion made in the application by the contesting respondents was false to their knowledge. Although, this stand has been taken, the Court below has not addressed itself to the conduct of the contesting respondents. Without adjudicating that aspect of the matter, it is incomprehensible as to how the Court would proceed to pass order in favour of the said respondents.
19. Moreover, what appears from the pleadings and relevant materials placed on record is that the contesting respondents besides saying that they were in possession of self contained ground floor of the suit building have not disclosed any other details as to the nature of their right, actual area in their respective possession, the background in which they were inducted in the suit premises and other such details which would
at least show some title of right in their favour to occupy the demised premises. Even if the Court were to invoke its inherent powers, the same could be done only after the Court was satisfied that it was absolutely necessary to do so. Failure of the contesting respondents to disclose the basic details relating to their right and having regard to the specific stand taken on behalf of the petitioners that the contesting respondents have been set up by the respondent No. 1 – the original defendant, it would be unsafe to straightway accept the claim of the contesting respondents that they were in lawful possession of the demised premises, at the relevant point of time. On the other hand, the provisions of Rule 99 read with Rule 100 as applicable by Bombay Amendment, postulate that if it is determined that the application is made by the person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under Sub-rule (a). Undisputedly, the Bailiff has recorded that when the execution was obstructed the Obstructionists claimed that they were in possession of the suit premises for last about 10 years which would take us back only to year 1983. If this fact is correct then it would necessarily follow that the contesting respondents have been inducted after the institution of the suit and such persons would have no just cause for obstructing the execution of the decree. In other words, the consequence of the order passed by the Court below is that a person who has no just cause of obstructing the decree was to be put in possession of the suit premises on the assumption that he has been dispossessed in illegal manner. This is being done by taking recourse to the inherent powers of the Court under Section 151 of the Code. Such approach would, to my mind, be opposed to the principle of fair play and justice. On the other hand, in such a case the Court would be duty-bound to examine and insist upon the party who has invoked its inherent jurisdiction for the relief of restoration of possession to show as to the nature of his right in relation to the estate. And if such information is not forthcoming then the Court must refuse to invoke its inherent powers at the instance of such person. The contesting respondents in this case, as contended before this Court on their behalf, claim that it is not necessary for them to disclose any such material and it is enough for them to place reliance on the earlier Bailiffs report that would indicate that they were in possession of the suit premises when the decree was sought to be executed on the earlier occasion. According to the contesting respondents they should be first put in possession of the suit premises and enquiry about their rights, title or interest in relation to the estate can be made only on the application filed by the petitioners under Rule 97. The course suggested by the said respondents cannot be countenanced. If they want the Court to invoke its inherent powers then they are obliged to approach the Court with all the necessary details and materials. The Court cannot be called upon to invoke its inherent powers in such a way or be obsessed by the fact that the obstructionists have been dispossessed in the manner not recognised by law as is applicable at present. However, before granting any mandatory order as has been granted in the present case it is the bounden duty of the Court to satisfy itself that a right, genuine and proper person is before it. On the other hand if such a person was to file an application under Rule 99, the Court would be obliged to adjudicate the rival claim and if it was to be found that person has been inducted during the pendency of the suit then the Court would be required to dismiss his application.
20. Moreover in the present case, it has come on record that the petitioners, after getting vacant possession of the demised premises/have immediately inducted third party M/s. Hindustan Construction Co. Ltd., which is a separate juristic person. The Court below has not addressed itself to that aspect nor thought it necessary to issue notice to that person before passing the order of restoration of possession. As a matter of fact, the petitioners are not in possession of the demised premises and directing the petitioners to deliver possession of such premises to the contesting respondents is nothing but asking the petitioners to perform an act which is impossible. To put it tersely, the Court below has not addressed itself to relevant aspects of the matter and the premise on which it has proceeded to decide the application in favour of the contesting respondents is inappropriate. To my mind having regard to the peculiar facts and circumstances of the case the matter will have to be remanded to the Lower Court for adjudication of the applications afresh in accordance with law.
21. Be that as it may, the Executing Court instead of allowing the applications under Section 151 of the Code as filed, ought to have treated the same as one filed under the provisions of Order 21, Rule 99, even though the contesting respondents took a specific stand that the application filed by them was under Section 151 of the Code. The petitioners have no objection if the applications are restored to the file of the Lower Court for being decided afresh in accordance with law as if filed under Order 21, Rule 99 of the Code. This could be done having regard to the dictum of the Apex Court in in Bhawarlal’s case, wherein it is observed that even if the party had made an application under wrong provisions it was the duty of the Court to treat the same as having been filed under the correct provision. In my view, this approach would have met the ends of justice. I would think it apposite to recall the observations made by the Apex Court in Shreenath and Anr. v. Rajesh and Ors. . It will be useful to advert to paras 1 to 3 of the said decision, which read thus :
The seeker of justice many a time has to take long 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 breathes fear 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 he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain 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 the hierarchy of Courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the Lower Courts under the scrutiny 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 seeker 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 the litigation as 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 a 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.
2. The Courts within their limitation have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decretal property which is within its 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.
3. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice has to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
22. Applying the abovesaid dictum to the fact situation of the present case, the appropriate order that ought to be passed by the Trial Court was to treat the applications filed by the contesting respondents as one under Order 21, Rule 99 and adjudicate the said applications in accordance with law. Such an approach was essential having regard to the nature of controversy raised between the parties and, which controversy, undoubtedly, may require adduction of evidence in support of their respective claims. If it was to be found that the contesting respondents were inducted during the pendency of the suit then obviously the law does not give them any protection and, if that be so, it would be preposterous to suggest that such a person should be put in possession by taking recourse to inherent powers under Section 151 of the Code that too without requiring that person to disclose the basic details about his right, title and interest in relation to the estate. Whereas, the respondents have taken a very bold stand that they were not required to disclose any details to the Court. That stand was not only taken before the Court below but even in the present petition at the interlocutory stage as is reflected in the order passed by this Court dated July 29, 1994. After the hearing of this writ petition was concluded, the respondents were granted liberty to file affidavit before this Court to indicate the relevant information. Once again the affidavit filed by them before this Court does not disclose any relevant details, whereas for the first time they have set up claim with regard to the substantial portion on the ground floor of the suit premises. However, the Court below has directed delivery of possession of the entire ground floor to each of the said respondents. That order has been passed by the Court unmindful of the fact that the warrant of possession was obstructed by 12 persons claiming to be in possession of the entire suit premises. Therefore, the stand taken by the contesting respondents is unsubstantiated and in such a situation it would be improper to invoke inherent powers in favour of such a litigant. A person who seeks to invoke inherent powers of the Court is expected to approach the Court with clean hands and therefore is obliged to disclose his entire case only when the Court would pass appropriate order to meet the ends of justice or to do substantial justice between the parties.
23. This Court in its interim order passed on 29.7.1994 has rightly observed that :
It is not unusual in the city of Bombay that after the decree for eviction is obtained in a proceedings under the Bombay Rent Act and when such a decree is confirmed even by the Apex Court, attempts are made to somehow circumvent the decree and render it nugatory, by putting totally frivolous and bogus claims. If execution of the decree is delayed, at the behest of such so called obstructionists as respondent Nos. 8 and 9 in the present case, I am afraid, the decree holder may never be able to obtain possession of the premises even though the Apex Court has decreed the suit. One can imagine a situation where out of many obstructionists as in the present case, a couple of them claim a demarcated portion without identifying such a portion and without even giving the, area which is claimed to be in their possession for the last ten years or more. They do not have a scrap of paper to prima facie disclose any semblance of right to possession of the premises. If the decree holder has acted swiftly to obtain possession and inducted the third party in the premises. I do not think this Court is helpless in assisting such a decree holder.
24. In the circumstances, I am of the view that the Executing Court has committed manifest error in allowing the application as filed by the contesting respondents by invoking inherent powers under Section 151 of the Code of Civil Procedure. The fact situation of the present matter would not permit exercise of such inherent powers.
25. Accordingly both these writ petitions partly succeed. Impugned orders are set aside and the applications are restored to file of the Lower Court for adjudication afresh in accordance with law treating the same as if having been filed under Order 21, Rule 99 of the Code. The said applications be decided as expeditiously as possible and preferably within 3 months from the receipt of writ of this Court. Needless to mention that the Lower Court shall adjudicate the application on its own merit uninfluenced by any observations made in the impugned judgment or the present judgment of this Court and strictly on the basis of the materials that is placed on record by the parties. The parties be given opportunity to adduce evidence relevant to decide the matter in issue.
26. Writ petition disposed of in the above terms. No order as to costs.