Karnataka High Court
A. Chidambar vs Leela on 18 September, 1989
Equivalent citations: ILR1989KAR3230, 1989(2)KARLJ469
JUDGMENT K.A. Swami, J.
1. This second appeal arises out of a decree passed on 19th February 1988 by the I Additional Civil Judge, Mangalore, in R.A.No. 84/86.
2. The respondent obtained an order of eviction in H.R.C. No. 214/76 against the father of the appellant. That order of eviction was put into execution. The appellant resisted the application on the ground that he has been in possession of the property other than the one covered under the eviction order passed in H.R.C.214/76 on the file of the I Additional Munsiff, Mangalore and therefore, under the guise of eviction order passed in H.R.C.No. 214/76, he should not be dispossessed from the property which does not form part of the order of eviction.
3. The Executing Court rejected the application holding that the appellant had no locus standi to maintain the same by the order dated 10-7-1986 passed in Ex Case No. 185/86. Aggrieved by the aforesaid order, the appellant went up in appeal in R.A.No. 84/86 before the Civil Judge, Mangalore, which was heard and disposed of by the 1st Additional Civil Judge, Mangalore. The learned Civil Judge has rejected the appeal on the ground that It is not maintainable. Hence this second appeal.
4. It is contended by Sri S.K. Joshi, learned Counsel for the appellant that an application filed under Order 21 Rule 97 C.P.C. in execution proceedings is maintainable and any order passed thereon becomes a 'decree' and hence the same is appealable as per the provisions contained in Rule 103 of Order 21 C.P.C.; that this Court has also ruled in CHANDRAKANT MALLAPPA DESAI AND ANR. v. MISRIMAL NAMAL OSWAL AND ANR. 1984(1) KLJ 347 to the same effect.
5. The proposition of law, as put-foward by the learned Counsel for the appellant has no exception. The question for consideration is whether the said proposition is applicable to the facts and circumstances of the case on hand.
6. The application filed under Order 21 Rule 97 CPC admittedly did not relate to the property which was the subject matter of the order of eviction passed in H.R.C. 214/76 which was sought to be executed in Ex.Case No. 185/86. The objection of the petitioner related to some other property and the grievance made by him was that under the guise of execution of the eviction order passed in H.C.C.No. 214/76 in respect of another property, he should not be dispossessed from the property which was in his possession. Thus the application filed under Order 21 Rule 97 of the C.P.C. did not relate to the subject matter of the execution. Therefore, the trial Court did not go into the merits of the application and rejected the same in limine as not maintainable.
7. There is a power in the Court to reject an application filed before it in limine if it finds that such an application is not maintainable. The executing Court can entertain objections to the execution in respect of the subject matter of the execution proceedings and not in respect of any other property. Therefore, an application filed under Order 21 Rule 97 C.P.C. which did not relate to the subject matter of execution could not have been entertained by the executing Court. Therefore, the Executing Court was justified in rejecting the said application as not maintainable. There was an appeal filed by the appellant. As already pointed out, the Appellate Court dismissed the appeal on the ground that the appellant could not have maintained an application under Order 21 Rule 97 C.P.C. as he had not been dispossessed from the property involved in the execution proceedings. Of course, the lower Appellate Court did not go into the question whether the objections filed by the appellant related to the subject matter of the execution.
8. As undisputedly, the objections filed by the appellant under Order 21 Rule 97 C.P.C. related to another property other than the property which was the subject matter of execution, the same could not have been entertained. If at all the appellant entertained any doubt that he was likely to be dispossessed from the property which was not covered by the order of eviction and of which he had been in possession in his own right, he could have filed a separate suit to protect his possession but he could not have maintained an application under Order 21 Rule 97 C.P.C. The expression 'the property' occurring in Rule 97 of Order 21, and 'suit property" occurring in Rule 99 of Order 21 C.P.C. are referable to the property which is the subject matter of the execution and not in respect of any other property other than the one which is covered by the order of eviction or the decree for possession, the execution of which is sought by the decree-holder. Therefore, the trial Court was right in holding that the application filed under Order 21 Rule 97 C.P.C. was not maintainable. Accordingly, the lower Appellate Court has affirmed the said finding. That being so, this second appeal cannot at all be admitted. Accordingly it is dismissed.
9. It is however made clear that if the appellant had been in possession of the property in his own right which was different from the one covered by the execution proceedings, he can still seek an appropriate relief in an appropriate suit for possession in accordance with law.