Bombay High Court
Ubaldino Oliveira vs Sadanand Ladu Borkar, Since Deceased ... on 25 January, 1995
Equivalent citations: 1996(5)BOMCR425
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. Rule. By consent to be heard forthwith.
2. An obstructor in Execution Application No. 19/90 filed Civil Misc. Application No. 305/93 before the Civil Judge, S.D., Margao is the petitioner herein. The aforesaid application filed by the petitioner has been dismissed by the Executing Court by its order dated 11-10-1993. He filed an appeal against that order before the learned Addl. District Judge, South Goa, Margao as Misc. Civil Appeal No. 129/93 which was also dismissed by the Addl. District Judge by judgment dated 30th April, 1994. The petitioner herein challenges this order in this Revision Application.
3. The petitioner in brief contends that the respondent No. 1 Sadanand Ladu Borkar (since deceased) filed a suit as Special Civil Suit No. 155/82 against one Luis Vaz and the suit was decreed. Thereupon the aforesaid Sadanand Ladu Borkar filed execution application and the petitioner intervened as third party to obstruct the execution and this is how the impugned order came to be passed by the courts below. The petitioner's case is that by Agreement dated 11-10-1993 the judgment debtor in Special Civil Suit No. 155/82 (respondent No. 5) Smt. Ana Severina Monteiro e Vaz transferred the business as well as the premises of Ratnadeepa Lunch Home to the petitioner on payment of Rs. 2 lakhs. He also contended that one Luis Vaz who was the lawful sub-tenant of the suit premises was inducted in the suit premises with the consent of the landlord Shri Costa Pereira. The said Luis Vaz expired sometime in 1983 without any issues. The right of inheritance devolved on the petitioner. Both trial Court and Lower Appellate Court dismissed the said suits. In Second Appeal before this Court a consent decree came to be passed by this Court in Second Appeal No. 45/87, at the instance of the Decree Holders and the Judgment debtor before this Court on 24-4-1990. The said decree, it is alleged by the petitioner, came to be passed by this Court by collusion between the Judgment Debtor and the Decree Holders in order to deprive the petitioner of his independent right to the suit premises. It is alleged by him the said decree is not binding on him. He further asserts that he is in actual possession of the suit premises from the year 1987. There is no order or judgment passed against him to deliver possession. The petitioner stated that the suit filed by him for declaring the consent decree null and void as Special Civil Suit No. 260/90 is pending. In obstructing the execution of the said consent decree the petitioner filed the present application before the Executing Court purported to be under Order 21, Rule 97 of C.P.C.
4. The petitioner contends that his application filed under Order 21, Rule 97, C.P.C., to obstruct the execution of the decree is wrongly and illegally rejected by the courts below without adjudicating upon his independent right to the suit premises as contemplated under Order 21, Rule 97, C.P.C. The Lower Appellate Court has rejected the application mainly on the ground that an application at the instance of an obstructor under Order 21, Rule 97 is not maintainable and it is for a decree holder in possession who can apply for removal of the obstruction to the execution of the decree. So far Rule 99 is concerned the Lower Appellate Court holds that 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, can apply only against complaining the dispossession. In other words the Lower Court found that the applicant's obstruction can be maintained only after he was dispossessed in order to maintain an application by him under Order 21, Rule 99, C.P.C.
5. In my view the order of the Court below was erroneous. The Court below, particularly the Lower Appellate Court has distinguished a decision cited in the case of Smt. Tahera Sayeed v. M. Shanmugam and others, and the reason given by the Lower Appellate Court to discard that decision to apply to the facts of this case cannot be accepted. The reasoning of the Lower Appellate Court that in order to apply Order 21, Rule 97 or Rule 99 the person who resorts to the said provisions should first get dispossessed then only he will become himself qualified to maintain an application of obstructionist under Order 21, Rules 97 and 99 is quite erroneous. With great respect I cannot agree with the reasoning of the Court below. Several decisions have been cited by the counsel for the respondents for rejecting the plea of the petitioner. All these decisions deal with how the right of the obstructionist over the property has to be dealt with and how far the Executing Courts can go beyond the decree. But here in this case both the courts below have rejected the application in its threshold and found that the application at the instance of the petitioner to obstruct the execution of the decree is not maintainable. The Andhra Pradesh High Court in its very illuminating decision cited supra has very elaborately discussed the scope and the maintainability of an application by an obstructionist who is in possession of the property on which the decree-holders sought possession in execution of a decree. The learned Judge of the High Court of A.P. observed after discussing the scope of Order 21, Rule 97 in paragraph 4:---
"It is to remember that preceding the Civil Procedure Code Amendment Act, 1976, the enquiry under Rules 97 and 99 was only summary subject to right of suit whereas the questions relating to right, title or interest were to be established. With a view to shorten the litigation and the execution is given quietus expeditiously right of suit is taken away and enquiry is enjoined in the proceedings under Rule 98 of Order 21 itself and the order therein is treated to be decree and it is subject to appeal."
The question posed in this case and the Andhra case was similar in the sense that in both the cases a third party who was not bound by the decree filed the application to obstruct the execution of the decree. The learned Judge observed as follows:---
"It is true, as contended by Sri Ramachandra Reddy, that on putting up obstruction or resistance to the execution of the decree, the decree-holder or purchaser is to lay an application for removal thereof, or on dispossession, the dispossessed gets cause of action under Order 21, Rule 97 or 99 respectively. At the cost of repetition, it is to state that the petitioner asserts her independent title and right in B portion house as owner. She was not made party to any proceedings anterior to the execution. Narasimha derives title from Shanmukham who in turn claims from Periaswamy. The petitioner asserts that Periaswamy played fraud on her. If fraud is established the sale under Ex. B-2 becomes void. When threat to possession was simmering in E.P. 10/85 of Shanmukham, she resisted it and it was averted. Now at the instance of Narasimha, the threat to dispossession is imminent. She is now claiming adjudication of her right, title and interest before being actually dispossessed ostensibly through Periaswamy against whom there is subsisting injunction. The question is whether an application, under the circumstances, is maintainable under Order 21, Rule 97. Is it not the duty of the Court to adjudicate the petitioner's claim to render fair and substantial justice? Could resistance or obstruction be removed without adjudication? The rules of procedure are handmaids to ends of justice. The substance of the matter, but not the forum is the guiding star to the goal of justice. An application after dispossession by the petitioner is no solace and many a time prove abortive or ineffective. Adjudication before execution is efficacious as an aid to prevent fraud or abuse of the process of the Court or miscarriage of justice. Adjudication under Order 21, Rules 98, 100 and 101 is sine qua non to a finality of the order and a decree under Rule 103. But what is the relevant provision is the question."
It is also relevant to note the observations of the learned Judge in the Andhra's case. Paragraph 8 reads as follows:---
"Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bare the facts in advance and seeks assistance to protect his possession, In Savamma v. Radhakrishna Moorthy, (1985)1 Andh. L.T. 436, I held that the faith of the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as caveat to the decree-holder or purchaser or a person claiming through him that "look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree", and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104."
I fully endorse in verbatim the view expressed by the learned Judge in the said decision. All other decisions cited before me could not persuade me to take another stand other than what has been taken by the learned Judge in the Andhra decision. In the decision of Mani Nariman Daruwala and others v. Phiroz M. Bhatena and others, , which was also a case where the respondents Nos. 5 and 6 therein stated that they were in possession of the property and their possession was threatened by filing an execution. The learned Single Judge of this Court in that case was examining the scope of inquiry to be undertaken by the executing Court under Order 21, Rules 97 to 101 C.P.C. and observed thus:
"That consequently it follows that it would be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he may be trying to establish his independent right to possession."
6. The learned Counsel for the respondents has cited a decision in the case of Kattil Vayalil Parkkum Koiloth Moideen v. Mannil Paadikayil Kadeesa Umma and others, , for supporting the contention of the respondents. It was a case where the revision petitioner/decree-holder challenges an order of the Court below allowing the respondents to file a caveat in the execution decree for partition. In the earlier occasion at the stage of pendency of a final decree proceedings the respondents therein had filed a petition to implead them as additional parties, but their petition was dismissed. After final decree was passed the respondents filed a caveat under section 148-A C.P.C. praying that they also may be given notice before any order is passed while executing the decree on an application made by the decree-holder, and that caveat has been accepted by the Court below. Against that order of the Court below the revision petitioner/decree holder came to the High Court of Kerala challenging the decree. The Court has set aside the order of the Court below and observed that if at all any right is envisaged on the respondents in that case to lay any obstruction to the execution of the decree he should have done after being dispossessed to file a petition under Order 21, Rule 99, C.P.C. Therefore the said decision is entirely on a different gamut on facts and the learned Counsel for the respondents cannot rely on that decision to support his case.
7. Here is a case where the petitioner who is in possession of the property is resisting the execution of a decree, that too, a consent decree between the parties came to be passed admittedly behind the back of the petitioner who has sought to resist the execution of the decree. He asserts that he was in possession of the property on an independent right of his own. His right to resist the execution of the decree cannot therefore be rejected on a mere technical ground. Even under section 151 of C.P.C. the Court can entertain such application and examine the case on merits and pass appropriate orders in consonance with the principles of natural justice.
8. In view of the above discussions, I hold that both the courts below have committed a serious miscarriage of justice in dismissing the application filed by the applicant on a technical ground.
9. In the result, the Civil Revision Application is allowed. I set aside the orders passed by both the courts below and direct the executing Court to entertain the application of the applicant and dispose it of on merits. Till the final order is passed by the executing Court the execution of the decree in Regular Civil Suit No. 155/82 is stayed. I make it clear that I have not expressed any opinion on the merits of the case of the petitioner or the respondents. Rule made absolute. There shall be no order as to costs.