Gujarat High Court
Valjibhai Arjanbhai Korat vs Kishorbhai Parbatbhai Thesiya on 11 October, 2023
NEUTRAL CITATION
C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8170 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 8170 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1386 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VALJIBHAI ARJANBHAI KORAT
Versus
KISHORBHAI PARBATBHAI THESIYA & 1 other(s)
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Appearance:
MR SK PATEL(654) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/10/2023
CAV JUDGMENT
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1. Rule returnable forthwith. Learned advocate Mr. S.P.Majmudar waives service of rule on behalf of the respondents.
2. Since orders passed below various application in one and same Darkshat proceedings are challenged by way of Writ Petitions under Article 227 of the Constitution of India, with the consent of learned advocates for both the sides, the petitions are disposed of by this common order.
3. Writ Petition No.8170 of 2018 is filed challenging separate orders passed below Exh.90, Exh.91 and Exh.93 of even date in Execution proceedings.
4. Writ Petition No.1386 of 2018 is filed under Article 227 of the Constitution of India challenging the order passed below Exh.49 in Execution Proceedings.
5. Facts in nutshell are as under :-
5.1. Agreement to sale was executed between respondent no.1 and respondent no.2 for sale of agricultural land bearing survey no.19/1 paiki 5 ad-measuring 2 Acres 19 Gunthas of Village -
Bhola, Taluka - Dhoraji, District Rajkot (in short 'Suit land'). Respondent no.2 did not execute sale deed as per terms and conditions of the agreement to sale in favour of respondent no.1. This inaction on the part of respondent no.2 has compelled respondent no.1 to file suit for specific performance for agreement to sale dated 15.04.2009 against respondent no.2 before competent Civil Court at Dhoraji. This suit was registered Page 2 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined as Special Civil Suit No.30 of 2009. Regular and usual proceedings took place in the Special Civil Suit between respondent no.1 and respondent no.2. At the end of the proceedings, competent Civil court at Dhoraji decreed Special Civil Suit in favour of respondent no.1 by passing judgment and decree for specific performance on 30.09.2011. The competent Civil Court, Dhoraji directed respondent no.2 to execute sale deed of suit land in favour respondent no.1 after accepting remaining amount of sale consideration i.e. Rs.50,000/-. It is submitted that this judgment and decree passed in Special Civil Suit are neither stayed nor varied by the learned Appellate Court.
5.2. Since respondent no.2 did not satisfy judgment and decree passed in Special Civil Suit, respondent no.1 in order to get judgment and decree executed in his favour filed Execution Application No.4 of 2011 before the competent Court at Dhoraji. In this proceedings, decree holder i.e. respondent no.1 filed application Exh.49 under Order 21 Rule 96,97, 98 and 104 for removal of obstruction and to get decree executed. Vide order dated 07.12.2017, competent Court at Dhoraji passed order in favour of judgment holder. That order has been challenged by the present petitioner claiming that he is not bound by the judgment and decree passed in Special Civil Suit as he is having separate and independent right in the suit land. Another fact which is required to be noticed is that after passing judgment and decree dated 30.09.2011 in Special Civil Suit, respondent no.2 instead of obeying judgment and decree executed registered sale deed dated 31.01.2012 qua suit land in favour of the petitioner i.e. Valjibhai Arjanbhai Korat.
Page 3 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined 5.3. In Darkshat proceedings as order was passed below Exh.49 for removal of obstruction, the petitioner - Valjibhai Arjanbhai Korat moved application Exh.90 to join him as party in the execution proceedings. Thereafter, he again moved application Exh.91 under Order 21 Rule 102 seeking relief not to take away his possession of the suit land and application Exh.93 filed under Order 21 Rule 29 of CPC to stay the proceedings of execution. By even date separate orders, three applications are rejected by the competent Civil Court. Being aggrieved and dissatisfied with the order passed below Exh.90, Exh.91 and Exh.93 in Execution proceedings, the petitioner filed Writ Petition No.8170 of 2018. Whereas, order passed below Exh.49 has been challenged by way of Writ Petition No.1386 of 2018.
6. Learned advocate Mr.S.K.Patel appeared for the petitioners in both the writ petitions, whereas, learned advocate Mr.S.P.Majmudar appeared for respondent no.1 - judgment holder in both the writ petitions. Though served, other respondents did not remain present.
7. Learned advocate Mr. S.K.Patel for the petitioner submits that the petitioner is bona fide purchaser of the suit land. He was not aware of judgment and decree passed in Special Civil Suit. He would further submit that judgment debtor has executed sale deed in favour of the petitioner after obtaining sale consideration without informing that judgment and decree of specific performance is passed qua suit land in Special Civil Suit. He would submit that in view of registered sale deed executed by respondent no.2 in favour of the petitioner, right, title and interest of suit land including possession is legally Page 4 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined transferred in favour of the petitioner as per section 54 of the Transfer of Property Act. He further submit that since petitioner in execution proceedings resisting warrant of execution for possession of suit land, he should be considered as obstructor or objector to the decree. He would further submit that in such circumstances, provision of Order 21 rule 97 of CPC is attracted. The petitioner who is in possession of suit land was required to be given opportunity of hearing before passing order for handing over possession. He would submit that in view of Order 21 Rule 97(2) of CPC, in case where obstruction or resistance is put to the relief of possession sought in the execution, the Executing Court was required to proceed to adjudicate upon the application in accordance with the provisions contained therein. He would further submit that Order 21 Rule 101 of CPC contains that all questions including questions relating to right, title or interest in the property arising between the parties or through their representatives to the proceedings on an application under Rule 97 or Rule 99 which are relevant to the adjudication, are to be determined and adjudicated by the Court dealing with the application and not by separate suit. He would further submit that in view of Order 21 Rule 103 of CPC such order is treated as decree and it is appealable order. He would submit that Executing Court was required to frame issue under the limited inquiry to permit both the parties to lead evidence in regard to their right, title and interest in the suit land and then adjudicate entire issue. He would further submit that Executing Court has committed gross error by not allowing the petitioner to participate in the execution proceedings and further not touching the issue raised by the petitioner as he has resisted / obstructed execution of decree for possession.
Page 5 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined 7.1. Learned advocate Mr. Patel has placed reliance on the judgment of the Hon'ble Apex Court in the case of Shreenath v/s. Rajesh [1998 (4) SCC 543], more particularly, para 10 which reads as under :-
"(10) 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 Page 6 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined 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."
7.2. Another judgment of Hon'ble Apex Court was relied by learned advocate Mr.Patel in the case of Har Vilas v/s. Mahendra Nath [2011 (15) SCC 377]. Observations and findings in para 2 and 6 which are pressed into service which reads as under :-
"[2] The decree was put to execution,. When the warrant for delivery of possession was sought to be executed., the appellant offered resistance claiming to be in possession of the suit property and not bound by the decree. He preferred a petition purporting to be under Rules 35 and 97 of Order 21 of the Code of Civil Procedure before the executing court. The objection was dismissed as not maintainable . The appellant preferred a revision to the High Court which too has been dismissed following a Full Bench decision of the High Court of Madhya Pradesh in Usha Jain Vs. Manmohan Bajaj, 1980 AIR (MP) 146.
[3] xxxx [4] xxxx [5] xxxx [6] The appeal is allowed. The impugned decisions of the executing Court and the High Court are set aside. The objection filed by the objector (appellant before us) shall now be heard and decided in accordance with Rule 97 read with Rule 101 of Order 21 of the Code of Civil Procedure. A separate suit is not maintainable . The objections filed by the appellant are directed to be adjudicated upon by the executing court expeditiously and consistently with the direction made hereinabove."
7.3. To buttress contention that before passing order of removal of obstruction, the Executing Court is required to hear objector, learned advocate Mr. Patel has relied upon the judgment of the Page 7 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined Hon'ble Apex Court in the case of ASGAR and Ors. v/s. Mohan Varma [2020 (16) SCC 230]. Observations and findings of Hon'ble Apex Court in para 40 and 41 are put to notice of this Court which reads as under :-
"40 The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder.
41 This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the Page 8 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC."
7.4. Highlighting the term 'any person' employed in Order 21 Rule 97(1) of CPC, learned advocate Mr.Patel would submit that to adjudicate resistance or obstruction to the possession of immovable property, it is not necessary for judgment debtor to resist or obstruct possession of immovable property. The term 'any person' is wide enough to cover any party who is in possession of property. He can legitimately put resistance or obstruction to possession of immovable property sought in execution of decree. To strengthen this submission, he has relied upon judgment of Hon'ble Apex Court in the case of Silverline Forum Pvt. Ltd. v/s. Rajiv Trust [1998 (3) SCC 723]. Para 10 of the said judgment reads as under :-
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act."Page 9 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023
NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined 7.5. The observations and findings of the Hon'ble Apex Court in the case of Jini Dhanrajgir v/s. Shibu Mathew and Anr. Etc. Thomas Mathew (Dead) @ Thampykunju and Anr. [2023 (8) Scale 888) is pressed into service. Observation made in para 22 and 23 reads as under :-
"22. Considering the scheme of Order XXI Rules 97 to 106, this Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr. 17 found it difficult to agree with the High Court that resistance or obstruction made by a third party to the decree put to execution cannot be gone into under Order XXI Rule 97. Referring to Rules 97 to 106, this 15 (1995) 1 SCC 242 16 (1996) 3 SCC 154 17 (1998) 3 SCC 723 Court further held that they were intended to deal with every sort of resistance or obstruction raised by any person and that Rule 97(2) made it incumbent on the court to adjudicate upon such complaint in accordance with the procedure laid down. This Court also proceeded to observe:
"It is clear that executing court can decide whether the resistor or obstructer is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication. mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary".
23. The long line of precedents notwithstanding, it is indeed true that in terms of the ordainment of Rule 102 of Order XXI, Rules 98 and 100 thereof would not apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed."
7.6. Above submissions are made by learned advocate Mr. Patel Page 10 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined to allow the petitions and further submit to quash and set aside impugned order with prayer to direct the Court below to proceed in execution petition to consider resistance or obstruction offered by the present petitioner and to adjudicate such resistance or obstruction in accordance with procedure laid down.
8. Per contra, in short and concise submission, learned advocate Mr. S.P.Majmudar for the respondent would submit that by way of this petitions, the petitioner has asked for unfair, inequitable and undesired protection under the pretext of Order 21, Rule 97, Rule 98, Rule, 99, Rule 100 and Rule 102 of CPC. He would further submit that in view of Order 21 Rule 100 of CPC, the Executing Court is required to decide all issue of title, right, interest and possession of immovable property sought in execution provided that such person is claiming right, title and interest independently and he is not sailing on the boat with judgment debtor. He would submit that if person claiming his right, title and possession to the immovable property, possession of which has been sought in execution if is alien to the decree sought to be executed, then certainly the Executing Court was required to adjudicate issue permitting both the parties to lead evidence in limited inquiry. He would submit that in present case, the petitioner is claiming title through judgment debtor and that too subsequent to failing of title and possession by judgment debtor on passing judgment and decree by the Civil Court in favour of respondent no.1 decreeing the suit for specific performance of agreement to sale. He would submit that since the petitioner is transferee pendente lite, his transaction is hit by section 52 of Transfer of Property Act. Such transaction is non- est. The petitioner is bound by judgment and decree delivered in Page 11 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined Special Civil Suit. The petitioner cannot claim title, right and interest in the suit land other than judgment debtor. The petitioner therefore, is bound to vacate possession of immovable property, possession of which has been sought in execution. He would further submit that since respondent no.1 was confronted in getting possession of immovable property - suit land by the petitioner in execution proceedings, application was moved at Exh.49 to remove such obstruction. This application was allowed in favour of respondent no.1 and thereby the petitioner is directed to hand over peaceful and vacant possession of suit land. Learned advocate Mr. Majmudar referred to Order 21 Rule 102 of CPC to contend that Rule 98 and Rule 100 of Order 21 shall not be applicable in favour of person to whom judgment debtor has transferred the property after institution of the suit in which the decree was passed. He would further submitted that the petitioner who is transferee pendente lite cannot claim any protection to possession over immovable property for which warrant of possession has been issued and therefore, he would submit to dismiss present petition.
8.1. In support of his submission, learned advocate Mr. Majmudar has heavily relied on judgment of the Hon'ble Apex Court in the case of Usha Sinha v/s. Dina Ram and Ors. [(2008) 7 SCC 144] as well as in the case of P. Ramasubbamma v/s. V. Vijayalakshmi [(2022) 7 SCC 384].
9. No other and further submissions are canvassed by learned advocates for both the sides.
10. Before adverting to the rival contentions canvassed by Page 12 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined learned advocates for both the sides as well as putting anxious thought to the authorities on which they rely, it is important to note certain admitted facts as they are pivotal and vital to decide the dispute raised in this petitions.
(i) Respondent no.1 has filed Special Civil Suit No.30 of 2009 before the competent Civil Court against respondent no.2 for getting decree of specific performance for agreement to sale dated 15.04.2009.
(ii) Process was served to respondent no.2 as he is arrayed as defendant in the suit.
(iii) Defendant no.2 has contested the suit. Issues were framed and the parties have led evidence before the competent Civil Court, Dhoraji.
(iv) Competent Civil Court, Dhoraji after hearing learned advocates for both the sides passed judgment and decree in Special Civil Suit in favour of respondent no.1 on 30.09.2011 and ordered respondent no.2 to execute registered sale deed in favour of respondent no.1 qua suit land after accepting remaining amount of sale consideration.
(v) Judgment and decree delivered in Special Civil Suit No.30 of 2009 is not stayed nor varied.
(vi) Respondent no.2 being judgment debtor did not obey judgment and decree passed in Special Civil Suit. Inaction on the part of respondent no.2 led to filing of Execution Petition No.4 of 2011 before the Executing Court to execute judgment and decree dated 03.09.2011.
(vii) Respondent no.2 judgment debtor instead of obeying judgment and decree dated 03.09.2011 sold suit land to the petitioner subsequent to date of judgment and decree.Page 13 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023
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(viii) Sale deed between respondent no.2 and petitioner was registered on 30.01.2012.
(ix) In execution proceedings, the Executing Court to execute impugned judgment and decree passed order below Exh.47 and directed the petitioner to hand over peaceful and vacant possession of suit land.
11. What appears from the impugned applications filed by the petitioners and orders passed below these applications that the petitioner put his case of having right, title and interest as well as possession of suit land based upon sale deed executed on 31.01.2012. The petitioner further claims that he is not bound by judgment and decree delivered in Special Civil Suit No.30 of 2009 and therefore, he can legitimately offer resistance or obstruction to the execution of warrant qua possession in execution proceedings. He also claims that Executing Court was required to follow procedure laid in Order 21 Rule 97 and other provisions contained therein to obtain possession of suit land from petitioner.
12. At this stage, let refer to the final order and decree passed in Special Civil Suit No.30 of 2009. It is in vernacular language Gujarati, but for better understanding it is translated in English, which reads as under :-
On being listed this complaint for final disposal before Mr.N.A.Ijner, Principal Senior Civil Judge and in presence of Mr.R.S.Patel, Advocate for the Plaintiff and Mr.T.P.Patel, Advocate for the Defendant, the order is hereby passed and the Decree is issued that :Page 14 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023
NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined (1) The Suit of Plaintiff is partly allowed.
(2) The order is passed in favour of the Plaintiff and against the Defendant directing the Defendant that regarding the property as indicated alongwith description and four boundaries in para-2 of the suit, located in sim area of village Bhola, Ta.Dhoraji, bearing Revenue Survey Number 19/1 Paiki admeasuring Acre-2, Guntha-19 - Hectare-01-00-16, in pursuance of its registered Agreement For Sale without possession dated 15/04/2009 vide Sr.No.613 executed by him in favour of the Plaintiff and to accept the due amount of consideration of Rs.50,000/- (In words Rs.Fifty Thousand only), to execute the Sale-deed of the property in favour of the Plaintiff and to hand over silent, vacant and legal possession of the property to the Plaintiff and thereby to do specific performance of the Agreement and conveyance of the property to the Defendant.
(3) The Defendant will pay the costs incurred by the Plaintiff and will bear his own costs.
13. Since entire issue canvassed in this petitions revolves around Order 21, Rule 97, Rule 98, Rule 99, Rule 100, Rule 101, Rule 102 of CPC, let refer these provisions, which are as under :-
97. Resistance or obstruction to possession of immovable property
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(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 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 subrule (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 questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of subrule (2) Page 15 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or 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 judgmentdebtor 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.
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 questions 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.
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 Page 16 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
102. Rules not applicable to transferee pendente lite - Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgmentdebtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
14. Simple and plain reading of Order 21 Rule 97 of CPC gives picture that if in execution of possession of immovable property, judgment debtor or any other person resists or obstructs to possession, judgment holder has been given right to prefer application under Order 21 Rule 97 for removal of resistance or obstruction. Order 21 Rule 99 of CPC permits such person who is in possession of immovable property and has been dispossessed in execution proceedings to prefer application for restoration of possession. Rule 101 of Order 21 of CPC provides that what kind of questions can be determined by the Executing Court while deciding resistance or obstruction to the possession of immovable property. Separate suit is barred and all such questions are to be determined by the Executing Court. Rule 100 of Order 21 of CPC permits the Court to pass order upon determination of the questions referred to in Rule 101. In view of Rule 103 of Order 21 of CPC, application adjudicated upon under Rule 98 or Rule 100 would be treated as decree. Order 21 Rule 98 of CPC provides that what kind of orders can be passed after adjudication of questions referred in Rule 101.
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15. Conjoint reading of Order 21 Rule 97, Rule 98, Rule 99 and Rule 100 spells that Order 21 Rule 97 gives right to decree holder to move Executing Court for removal of resistance or obstruction offered to possession sought in execution. In event of filing such application the Executing Court has to determine question stated in Order 21 Rule 101. Upon adjudication of question stated in Rule 101 of Order 21, the Executing Court under Order 21 Rule 98 either put the decree holder in possession of suit land by order to remove obstruction or resistance or decline decree holder's application. If Executing Court has ordered to remove the obstruction or resistance and order to put decree holder in possession of suit land and judgment debtor or any person did not follow the order, the Executing Court is clothed with the power to detain such person in civil prison. Order 21 Rule 99 gives right to such person to move Executing Court for restoration of possession. However, it comes into picture once he has been dispossessed of the suit land in executing proceedings.
16. In fact, Order 21 Rule 98 makes it clear that if 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 pendency of the suit or execution proceedings, the Court shall direct that decree holder be put into possession of the property and if still such person is resisting or obstructing in obtaining possession, the Court may at the instance of the applicant order to put such person including judgment debtor in civil prison.
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17. Reading of Order 21 Rule 102 of CPC spells that provision of Rule 98 or Rule 100 shall not be applicable where judgment debtor has transferred property after institution of suit in which the decree was passed or to the dispossession of any such person.
18. At this stage, at the cost of repetition, it is to be noted that in the present case even as per the case of the petitioner, he has purchased suit land after judgment and decree is passed in Special Civil Suit in favour of respondent no.1.
19. It is clear case where the petitioner is not foreign to the judgment and decree passed in Special Civil Suit. He has stepped in the shoes of judgment debtor. He has no better right, title and interest than judgment debtor and as such it is clear that he is bound by decree. Application of Order 21 Rule 98 as well as Order 21 Rule 102 of CPC makes abundantly and explicitly clear that transferee pendente lite suit or execution proceedings cannot claim better title or independent title than judgment debtor. He has no right to offer resistance or obstruction to the judgment and decree sought to be executed in execution proceedings.
20. With profit, I may refer to the judgment of Hon'ble Apex Court in the case of Sriram Housing Finance and Investment Ltd. v/s. Omesh Mishra Memorial Charitable Trust [2022 (9) Scale 716] has observed in para 14, 15 and 16 as under :-
"14. From bare reading of the aforesaid provisions, it is clear that Order XXI Rule 97 deals with the resistance or obstruction to possession of immovable property by 'any Page 19 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined person' obtaining possession of the property against the decree holder. It empowers the 'decree holder' to make an application complaining about such resistance or obstruction. On the other hand, Rule 99 of Order XXI deals with the right of 'any person' other than the judgment debtor who is dispossessed by holder of a decree for possession of such property or in case where such property is sold in furtherance of execution of a decree. The said provision vests 'any person' with a right to make an application complaining about such dispossession of immovable property in the manner prescribed above. Rule 98 and Rule 100 deal with the power of the Court to pass appropriate orders upon an application preferred under Rule 97 and Rule 99 respectively. In so far as Rule 101 is concerned, it confers jurisdiction on the Court as well as casts an obligation to determine the questions relating to right, title or interest in the property, if any, arising between parties on an application made by the concerned person under Rule 97 or Rule 99 in the same proceedings for adjudication and not in a separate suit. Lastly, Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by 'transferee pendentelite' i.e., the person to whom the property is transferred by the judgment debtor after institution of the suit in which the decree sought to be executed was passed.
15. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the 'decree holder' who is entitled to make an application in case where he is offered resistance or obstruction by 'any person'. In the present case, as admitted by the appellant itself, it is a bonafide purchaser of the property and not the 'decree holder'. As available from the material placed on record, it is the respondent trust alongwith legal heirs of late N.D. Mishra who are the decree holders and not the appellant. Therefore, it is obvious that appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent. Further, Rule 99 pertains to making a complaint to the Court against 'dispossession' of the immovable property by the person in 'possession' of the property by the holder of a Page 20 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined decree or purchaser thereof. It is factually not in dispute that appellant purchased the said property from Mr. Yogesh Mishra vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.
16. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes as mentioned above. Now, in the present case, Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by learned counsel for the appellant. In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant under Order XXI Rule 97 to Rule 102."
21. The Hon'ble Apex Court in the case of Usha Sinha (supra) referred to judgment of Silverline Forum (P) Ltd. (supra). In para Page 21 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined 24 to 26, the Hon'ble Apex Court has held as under :-
"24. In Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723, this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated;
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree- holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99"
shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule
102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act."
25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
26. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI."
22. In case Jini Dhanrajgir v/s. Shibu Mathew and Anr. Etc. Thomas Mathew (Dead) @ Thampykunju and Anr. (supra), the Page 22 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined Hon'ble Apex Court after noticing long line of precedent clearly held that in view of Rule 102 of Order 21, Rules 98 and 100 thereof would not apply to resistance or obstruction in execution of decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after institution of the suit in which the decree was passed.
23. What appears from the case of the petitioner in background of ratio laid down by the Hon'ble Apex Court in the above judgments that the petitioner is subsequent purchaser or trasnferee pendente lite. He has purchased the suit land after judgment and decree for specific performance is passed by the Civil Court in Special Civil Suit. The petitioner has no independent right in the suit land to resist or obstruct or object execution of decree. Resistance at the instance of transferee pendente lite by no means can be accepted as resistance or obstruction as stated in Order 21 Rule 97 claiming independent or own right and thus, he cannot plead to get his claim adjudicated under Order 21 Rule 97(2) of CPC. In fact right to move execution Court under Order 21 Rule 97 is available only to judgment holder. The petitioner is under mirage that he has right to move Executing Court under Order 21 Rule 97 of CPC and obstruction or resistance offered by him for execution of decree has to be decided under Order 21 Rule 97 of CPC.
24. As observed herein above, Rule 102 of Order 21 is sufficient for the judgment holder to show that person resisting possession or offering obstruction is possessing right to immovable property after institution of suit in which decree was passed and sought to be executed against judgment debtor. If Page 23 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined such condition is fulfilled, the case squarely falls within provision of Rule 102 of Order 21 and person resisting decree does fall within realm of decree. He is bound by decree as he steps in the shoes of judgment debtor.
25. On perusal of impugned order, it appears that the petitioner has asked relief for joining him as party defendant. The petitioner cannot be joined as party defendant in execution as he has no independent right in the suit land. He is bound by decree operating against judgment debtor. Application under Order 21 Rule 102 in fact is not helping the petitioner to get any relief. Scope of Order 21 Rule 102 is discussed herein above and any mischief therein is favouring judgment holder. Another application under Order 21 Rule 29 of CPC to claim that Executing Court was required to stay proceedings as one suit is pending between judgment holder and the petitioner. Reading of Order 21 Rule 29 of CPC is totally misconceived. In view of Order 21 Rule 29 of CPC, the Court may stay execution of decree in execution proceedings provided that suit is pending between judgment debtor and judgment holder. However, that proposition is not applicable to the present case since the petitioner has no independent right to resist or obstruct possession of immovable property as he is transferee pendente lite and bound by decree. The petitioner cannot claim that resistance is to be adjudicated in view of Order 21 Rule 97 of CPC, the application Exh.46 in Execution Proceedings filed by the judgment holder has rightly been decided by the Court below.
26. Before parting with the judgment, it is apposite to refer observation of the Hon'ble Apex Court in the case of Jini Page 24 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined Dhanrajgir (supra) which depicts the difficulties of judgment holder facing to execute the decree after obtaining it. Para 2 and 3 of the said judgment reads as under :-
"2. More than a century and a half back, the Privy Council (speaking through the Right Hon. Sir James Colville) in The General Manager of The Raj Durbhunga, Under the Court of Wards vs. 1 Maharajah Coomar Ramaput Singh1 lamented that the difficulties of litigants in India indeed begin when they have obtained a decree. A reference to the above observation is also found in the decision of the Oudh Judicial Commissioner's Court in Kuer Jang Bahadur vs. Bank of Upper India Ltd. Lucknow. It was ruled there that the Courts had to be careful to ensure that the process of the Court and the laws of procedure were not abused by judgment-debtors in such a way as to make the courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights.
3. Notwithstanding the enormous lapse of time, we are left awestruck at the observation of the Privy Council which seems to have proved prophetic. The observation still holds true in present times and this case is no different from cases of decree-holders' woes commencing while they are in pursuit of enforcing valid and binding decrees passed by civil courts of competent jurisdiction. The situation is indeed disquieting, viewed from the perspective of the decreeholders, but the law, as it stands, has to be given effect whether the court likes the result or not. In Martin Burn Ltd. vs. Corporation of Calcutta, this Court held that a court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."
27. Applications filed by the petitioner before Executing Court were attempt to delay the execution proceedings. Present petitions are of same nature. All the orders passed by the Execution Court which are challenged by way of separate petitions are just, legal and proper. No interference is called for Page 25 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023 NEUTRAL CITATION C/SCA/8170/2018 CAV JUDGMENT DATED: 11/10/2023 undefined in the limited jurisdiction under Article 227 of the Constitution of India. No error of law or application of fact has been committed by the Executing Court.
28. For the foregoing reasons, the petitions are dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated.
29. In view of above, connected Civil Application does not survive. Accordingly, Civil Application is disposed of. Copy of this order be placed in other petition.
(J. C. DOSHI,J) SATISH Page 26 of 26 Downloaded on : Thu Oct 12 20:43:27 IST 2023