Calcutta High Court
Smt. Mira Chatterjee vs Sunil Kumar Chatterjee on 1 April, 1998
Equivalent citations: AIR1998CAL333, AIR 1998 CALCUTTA 333, (1999) 1 CAL WN 217, (1998) 3 ICC 191, (1998) 1 CAL LJ 559
Author: Tarun Chatterjee
Bench: Tarun Chatterjee
JUDGMENT Chatterjee, J.
1. The premises No. 5A, Beltala Road P.S. Bhowanipore (h ereinafter referred, to as "the 'premises") originally belonged to one Aswini Kr. B andyopadhyay, the maternal grant father of Sushil Kr. Chatterjee (since deceased). The said Aswini Kr. B andyopadhyay had no male issue. Sushil Kr. Chatterjee was brought up under the care of the said Aswini Kr. Bandyopadhyay in his family from boyhood. Aswini Kr. Bandyopadhyay, during hi s life time, made a Kill dated 16th June, 1946 which was probated in the year 1949 and by that Kill Aswini Kumar Bandyopadhyay bequeated the entire ground, floor of the said premises to the said Sushil Kr. Chatterjee, the husband of Mira Chatterjee who is the appellant before us. The said Sushil Kr. Chatterjee died on 21 st December, 1970. During his life time, Sushil had allowed one of his brother viz. Sunil Kr. Chatterjee, the respondent in this appeal to reside in two rooms on the ground floor of the said premises as a licencee under him some time from 1963 . After the death of Sushil, the present appellant, the widow of Sushil Kr. Chatterjee allowed the respondent to reside in the said premises as the licencee under her. B ut due to misbehaviour and indecent attitude and cruel treatment of the respondent and his family which consisted of hi s wife and two daughters residing in the said premises, the appellant had to revoke the licence by serving a notice upon hi m. Despite receipt of notice, the respondent did not vacate the suit premises and for that a suit for recovery of possession was filed in the year 1973 in the 4 th Court of the Munsif, Alipore, 24 Pgs. of the respondent from the said premises which was registered as Title Suit No. 123 of 1973. t he suit for recovery of possession filed on the ground of revocation of licence was contested by the respondent in which he inter alia contended that he was never a licencee under the husband of the appellant nor he was a licencee under the appellant. The mother of the respondent Smt. Ashalekha Devi in the said suit deposed to the effect that he usually resided in Benaras, U.P. She said in her deposition that the premises belonged to her father and Sushil, the husband of the appellant was brought up by her father who gave the premises to hi m by executing a Will. Sh e never stated in her deposition that she allowed the respondent to live in the premises under her as licencee. The Munsif, 4th Court at Alipore dismissed the aforesaid suit holding inter alia that the appellant had no right, to file the suit when there was no evidence that the said premises as partitioned. The Munsif, however, held that in view of the said finding, the suit must be held to be not maintainable. The case in that suit of the appellant was that the defendant was a licencee under her and so sh e had every right to evict the respondent. In answer to this case made out by the appellant, the learned Munsif, 24 Pgs. (South) held that due to death of the husband of the appellant, the legal status as to the title of the said premises was changed and hence the plea of the appellant could not be entertained when there was no written deed of licence containing the contents otherwise. Against the aforesaid judgment of the 4 th Court of the learned Munsif at Alipore, the appellant preferred an appeal in the first Court of the Additional District Judge. Alipore. The learned Additional District Judge, Alipore by a judgment and decree allowed the said appeal by setting aside the decree of the Munsif, 4 th Court at Alipore and granted a decree for recovery of possession to evict the respondent from the said premises. Feeling aggrieved by the Judgment of the Appellate Court, the respondent preferred a second appeal in this Court which was allowed by this Court and the judgment and decree of the appellate Court was set aside and the suit was dismissed on a finding that a reasonable view that would be taken was that there was implied grant of licence by the mother to her son to reside in the said premises. Against the aforesaid judgment of this Court delivered in the aforesaid second appeal, a special leave petition was moved by the present appellant, before the Hon'ble Supreme Court of India which came to be registered as S.L.P. No. 5996 of 1982 . The Apex Court of our country after hearing the parties set aside the judgment of the Hi gh Court and restored the judgment and decree of the Additional District Judge, Alipore. Thereafter, the appellant started an execution case being Title Execution Case No. 32 of 1990 in the 4 th Court of the Munsif, Alipore, 24 Pgs. t o evict the respondent and to get khas possession of the said premises. B efore the proceedings for execution was started, the respondent filed a suit for partition being Title Suit No. 53 of 1983 in the 4th Court of the Asst. District Judge at Alipore against the appellant and other s in which an application for injunction was filed by hi m. In the application for injunction, it was alleged that the respondent had inherited according to law of inheritance an undivided interest along with legal heirs of his mother Ashalekha Devi in respect of the ground floor of the said premises as Smt. Ashalekha Devi died leaving behind among others the respondent as one of her surviving sons. Therefore, an ord er of injunction must be granted in his favour restraining the appellant from executing the decree for eviction which was ultimately confirmed by the Supreme Court as me ntioned hereinabove and also from interfering with the peaceful possession of the respondent in the said premises till the disposal of the suit. The trial Court by the ord er impugned in this appeal allowed the said application and directed the parties to maintain status quo in respect of the said premises till the disposal of the suit. Feeling aggreived by this order of the trial Court, the decree holder in the earlier suit has filed this appeal which was heard in presence of both the sides.
2. Before us, Mr . Kanon Kr. Ghosh, appearing for the decree holder/appellant at the first instance argued that the suit for partition and for other incidental reliefs was not maintainable in view of the amended provisions embodied in Order 21 , Rules 97 to 103 of the Code of Civil Procedure. In support of this contention, Mr . Ghosh relied on a Supreme Court decision , (B hanwarlal v. Satyanarayan) and also of the decisions (Tahera Sayeed v. Shanmugam) and (Rengannayaki v. I.T. Commissioner). Mr . Ghosh further argued that the respondent would not be entitled to raise the question of inheritance on the death of hi s mother Ashalekha Devi in the present suit in view of the previous adjudication already made in respect of the interest of the respondent in the said premises as Section 11 , Explanation (iv) of the Code of Civil Procedure clearly says that such a defence ought to have been raised by the respondent in the earlier suit and he not having raised. Such plea in the earlier suit, the suit would be barred under Section 11 , Explanation (iv) of the Code of Civil Procedure.
3. Mr. Mukherjee, appearing on behalf of the respondent however, contested the sub missions so made on behalf of the decree holder/appellant. According to Mr . Mukherjee, the question of raising such plea in the earlier suit would not arise as the death of Ashalekha Devi had occurred during the pendency of the appeal in the Hon'ble Supreme Court of India. He further contended that the suit filed by him for partition in the year 1983 was maintainable in law as in the facts of this case, the provisions contained in Order 21 , Rules 97 to 103 of the Code of Civil Procedure would not be attracted. In support of this contention, Mr . Mukherjee relied on the decision reported in AIR 1952 Triv Co. 1996, Raman Nayar Gopalan Nayar v. Leksmi Amma B harati Amma.
4. Having heard Mr . Ghosh for the decree holder/appellant and Mr. Mukherjee for the judgment debtor/respondent and after going through the materials on record including the judgment under appeal, we are of the view that no interference is warranted in respect of the judgment under appeal. Order 21 deals with execution of decree and orders. Order 21, Rule 97 to Rule 106 of the Code of Civil Procedure deal with resistance to delivery of possession of decree holder or purchaser. Order 21, Rule 97(1 ) clearly says that where the holder of a decree for the possession of immovable property or purchaser to 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. Sub-clause (2) of Rule 97 of Order 21 says where any application is made under Sub-rule (1), the Court sh all proceed to adjudicate upon the application in accordance with the provisions contained in Rules 98 to 106 of the Code of Civil Procedure as the case may be. Order 21, Rule 98(2 ) provides that 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 hi s behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it sh all 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, ord er the judgment debtor, or any person acting at his instigation or on hi s behalf, to be detained in the civil prison for a term which may extend to thirty days. The other provision is Order 21, Rule 101 of the Code of Civil Procedure which needs to be discussed. Order 21, Rule 101 of the Code of Civil Procedure says that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, sh all be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court sh all, notwithstanding anything to the contrary contained in any law for the time being in force, be deemed to have jurisdiction to decide such question. Order 21, Rule 104 of the Code of Civil Procedure however, protects the pending suit. It says every order made under Rule 101 or Rule 103 shall be sub ject to the result of any suit that may be pending on the date of commencement of the proceeding in which such ord er 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. Rule 104 of Order 21 of the Code of Civil Procedure has been added to save the results of any suit which may be pending on the date of commencement of the proceeding under Rule 101 or Rule 103. Therefore, Rule 104 of Order 21 provides that every order under Rule 101 or 103 shall be sub ject 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 is made, has sought to establish right which he claims to the present possession of the property. Therefore, in our view, since the executing Court has been empowered to decide all questions including questions relating to right, title or interest in the property, the Court has also been clothed with jurisdiction under Rule 101 to decide all such questions. From a conjoint reading of the aforesaid provisions of Order 21 of the Code of Civil Procedure, two things have become evident. Firstly, the question of adjudication of any right, title, interest in respect of the immovable property either of the judgment debtor or of a person claiming independent interest in the same, would only arise when the holder of a decree for possession of immovable properly or purchaser of any such property sold in execution of a decree is resisted or obstructed by any person including the judgment debtor in obtaining possession of such immovable property. Therefore, the cause of action for starting a proceeding under Order 21 of the Code of Civil Procedure would arise only when the holder of a decree for possession of an immovable property or purchaser or by any such property sold in execution of a decree is resisted or obstructed by any person thing which is evident from a conjoint reading of the provisions of Order 21 of the Code of Civil Procedure is that by introduction of Rule 104 of the Code of Civil Procedure, the pending suit has been protected. Keeping these principles in mind, let us now consider whether the suit filed by the plaintiff/ respondent is prima facie maintainable in law. As stated herein before, the suit for partition was filed in the year 1983 at the instance of the respondent when no proceeding for execution was pending in the executing Court. As noted herein above, in our view, as Order 21, Rule 97 of the Code of Civil Procedure would be applicable only when the decree holder is either obstructed or resisted by the judgment debtor or any other person claiming title of the property in question, the question of adjudication under Rule 101 of Order 21 of the Code of Civil Procedure, as noted hereinabove cannot arise at all until and unless the decree holder is resisted or obstructed either by the judgment debtor or any other person. Let us, therefore, consider whether from the facts of the present case, it can be said that the decree holder was resisted or obstructed either by the judgment debtor or by any other person. Nothing could be sh own by the appellant before us that Ihe decree holder was ever resisled or obstructed in laking delivery of possession of the premises that is to say such a situation has not yet come. That being the position and in view of the clear provisions under Order 21 of the Code of Civi I Procedure as mentioned hereinabove, we are prima facie of the view that the suit for partition was maintainable in law. The second reason for not accepting the submission of Mr . Ghosh is that in view of the fact that the suit for partition was filed in the year 1983 by the respondent and the title execution case was started by the decree holder only after the disposal of the appeal by the Hon'ble Supreme Court of India by restoring the judgment and decree passed by the Additional District Judge, 4th Court at Alipore in the year 1989-1990 , there cannot be any iota of difficulty to say that when the execulion was started, the suit was already pending. That being the factual position, we have no hesilalion in our mind to hold that Order 21, Rule 104 of the Code of Civil Procedure would be attracted at once in the facts and circumstances of this case. Therefore, we are unable to accept the submission of Mr. Ghosh that in view of the amendment of the provisions as contained in Order 21 of the Code of Civil Procedure, the suit for partition was not maintainable in law. Before we part with this order, the decisions cited by Mr . Ghosh may be dealt with. The Supreme Court decision as cited by Mr. Ghosh is the decision (Bhanwarlal v. Satyanarayan). In paragraph '4 ' of the said decision, the Supreme Court has observed as follows:-
"The procedure has been provided in Rules 98 to 103 . We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21 , Rules 98 to 102. A reading of Order 21, Rule 97 C.P.C, clearly envisages that "any person" even including the judgment-debtor irrespective of whether he claims derivative title from the judgment debtor or set up hi s own right, title or interest dehors the judgment debtors and resists execution of a decree, then the Court in addition to the power under Rule 35(3 ) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree holder gets right under Rule 97 to make an application against third parties to have hi s obstruction (sic) and an enquiry thereon could be done. Since such occasion of obstruction or resistance furnishes cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.''
5 . From a careful examination of the aforesaid observations of the Supreme Court, we can safely come to this conclusion that the aforesaid Supreme Court decision really helps the respondent. From the aforesaid observation, it is evident that a reading of Order 21, Rule 97 of the Code of Civil Procedure would clearly indicate that "any person" even including the judgment debtor irrespective of whether the claims he derivative title from the judgment debtor or set up hi s own right, title or interest dehors the judgment debtor and he resists the execution of a decree, then the Court in addition to the power under Rule,35(3 ) is empowered to conduct an enquiry whether the obstruction by that person in obtaining the possession of the immovable property was legal or not. Therefore, applying the principles laid down by the Supreme Court in the decision aforesaid, it must be held that since occasion of obstruction or resistane furnishes cause of action to the decree holder to make an application for removal of the obstruction or resistance either by the judgment debtor or any other person claiming under him, the amended provisions under Order 21, Rules 97 to 106 of the Code of Civil Procedure cannot be applicable in the facts and circumstances of this case, we have already held that nothing could be produced or shown by the appellant that she was resisted or obstructed by the judgment debtor or by any other person claiming right, title or interest of the premises under hi m. It can also be safely concluded after applying the principles laid down by the Supreme Court in the aforesaid decision that until and unless the decree holder is resisted or obstructed in the matter of taking possession by a judgment debtor or any other person, the question of adjudication under Order 21. Rule 101 of the Code of Civil Procedure cannot at all arise. Therefore, in our view, the amended povisions of Order 21 of the Code of Civil Procedure relating to resistance of decrees and orders would not be applicable to the present case. The decision rendered in, Bhanwartal v. Satyanarayan, , was sub sequently relied on in a decision of the Supreme Court in the case of Brahmadeo Choudhury v. Rishikesh Prasad Jaiswal, of the said decision, the Supreme Court clearly observed as follows:-
"A mere look at the aforesaid provision sh ows that a warrant for possession can be straightway sought against persons occupying immovable property which is the sub ject-matter of decree by the decree-holder provided such persons who are occupying the suit property are judgment-debtors or persons claiming through the former. We are concerned with the situation in which the appellant resisted the execution proceedings on the ground that he was a stranger to the decree and claimed an independent interest in the suit immovable property possession of which was decreed in favour of Respondent 1 decree-holder."
In Paragraph '8 ' of the said decision, the Supreme Court has again reiterated the principles laid down in its earlier decision in the case of Bhanwarlal v. Satyanarayan, which are as follows :-
"A conjoint reading of Order 21, Rules 97,98, 99 and 101 projects the following picture:
"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 kanner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate ord ers after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, Sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a 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 21, 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 21, Rule 101 and no separate suit would lie against such order me aning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such demand decree."
6. From the aforesaid observation of the Supreme Court, it is, therefore, clear that the said decision of the Supreme Court clearly lays down a principle that once resistance is over by a purported stranger to the decree and which comes to be noted by the executing Court as well as by the decree holder, remedy available to the decree holder against such an obstructionist is only under Order 21, Rule 97, Sub-rule (1 ) and he cannot by pass such obstruction and insist reissuance of warrant for possession under Order 21, Rule 35 with the help of police force that course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97 of the Code of Civil Procedure in connection with removal of obstruction of purported strange to the decree. Therefore, it can be safely concluded that until and unless the decree holder is resisted or obstructed either by the judgment debtor or by any other person, there cannot be any cause of action for an adjudication of any right, title and interest of an immovable property either claimed by the judgment debtor or by any other person. As noted hereinbefore, the adjudication of any dispute with regard to right, title and interest of the premises cannot arise until and unless there is any obstruction or resistance either by the judgment debtor or by other person. In the present case, there is nothing on record to sh ow that there was any resistance or obstruction by the respondent in the execution proceeding. At the risk of repetition, we may also add that the partition suit was filed by the respondent in the year 1983 and the execution case was started in the year 1989-90 after the disposal of the appeal by the Hon'ble Supreme Court of India. From the discussions made hereinabove and on consideration of the decisions of the Supreme Court, we are, therefore, unable to agree with the submission of Mr . Ghosh that in view of the amended provisions as contained in Order 21 of the Code of Cvil Procedure relating, to resistance to delivery of possession to the decree holder or purchaser, the suit for partition can be held to be not maintainable in law. In this connection, reliance can also be placed in the case of Kazi Akil Ahmed v. Ibrahim, ; in which somewhat similar situation arose. It appears from the said decision that the Supreme Court entertained an application for injunction filed in a civil suit for injunction and declaration although in that case, the decree holder was obstructed and/or resisted. Dr awing inspiration from this decision of the Supreme Court, we are also of the view that the suit for partition which was filed before the filing of the executing case by the appellant must be held to be prima facie maintainable in law. We however, make it clear that it will be open to the appellant to satisfy the trial Court as to the maintainability of the suit in view of the amended provisions as contained in Order 21 of the Code of Civil Procedure at the time of disposal of the suit. Any observation that has been made in this judgment sh all not be taken to be final and all questions relating to the maintainability of the suit sh all be allowed to be raised by the appellant before the trial Court at the time of the disposal of the suit,
7. Let us now deal with the second submission of Mr. Ghosh. Mr. Ghosh sub mitted that the respondent was not entitled to raise the question of right, title and interest in the premises on the death of hi s mother Ashalekha Devi in the present suit in view of the previous adjudication already made in respect of the interest of the respondent in the premises as Section 11 Explanation (iv) of the Code of Civil Procedure clearly says that such a defence ought to have been raised by the respondent in an earlier suit and he not having raised such plea in the earlier suit, the suit would be barred under Section 11 Explanation (iv) of the Code of Civil Procedure. In our view, this submission of Mr . Ghosh is also devoid of any me rit. In the present suit for partition, the respondent is claiming hi s right, title and interest on the death of his mother Ashalekha Devi. There is no dispute that the premises was gifted by the father of Ashalekha Devi to Sushil Kr. Chatterjee by executing a will in hi s favour. Ashalekha Devi admittedly was the mother of Sushil and Sunil. The appellant is the widow of Sushil. Even assuming that in the previous suit it was found that Ashalekha Devi had not granted licence to the respondent, even then in view of the subsequent event that Ashalekha Devi died during the pendency of the earlier litigation in the Supreme Court, the respondent who is one of the son of Ashalekha Devi can claim right, title and interest in the premises on the death of Ashalekha Devi as Sushil the husband of the appellant died leaving behind amongst others, the appellant and hi s mother Ashalekha Devi. Therefore, in view of the sub sequent event which had occurred during the pendency of the appeal before the Supreme Court, it cannot be said that in view of Section 11 Explanation IV of the Code of Civil Procedure, such question cannot now be raised in the present suit. Accordingly, we do not find any sub stance in the argument of Mr . Ghosh with regard to the question of applicability of Section 11 Explanation iv of the Code of Civil Procedure in the present suit. It is now well settled that Section 11 of the Code of Civil Procedure would not be attracted as a party is now bound in law to put forward a claim in a suit on the basis of a right acquired by hi m during the pendency of the suit. (See AIR 1952 Trav Co 96 Raman Nayar Gopalan Nayar v. Leksmi Amma B harati Anima) We have carefully examined the plaint as well as the application for injunction and the defence made out by the appellant in her written objection to the application for injunction. On consideration of all the materials on record we are of the view that prima facie case has been made out by the respondent to go for trial as it appears that on the death of Ashalekha Devi, some sh ares in the premises must devolve upon the respondent in view of the fact that Ashalekha died leaving behind amongst other s, the appellant and the respondent as her heirs and legal representatives. Since no argument was advanced by Mr . Ghosh questioning the finding of the trial Court on the prima facie case put forward by the respondent, we need not go into the details of such question. No other point was raised on behalf of the appellant.
8. For the reasons aforesaid, the judgment and ord er of the trial Court, in our view, does not warrant any interference by us in this appeal.
9 . We however, make it clear that whatever obsevation that has been made in this judgment would not influence the trial Court in deciding the suit on merits. The trial Court sh all decide the suit on me rits and in accordance with law. Since the decree for eviction of the licencee has been stalled by the order directing the parties to maintain status quo in respect of the premises in question till the disposal of the suit, we direct the trial Court to dispose of the pending suit as early as possible preferably within a year from the date of communication of this judgment and or order to it. The trial Court sh all also see that the parties shall not pray for unnecessary adjournments before it.
10 . The appeal is therefore, dismissed. There will be no order as to costs.
D.K. Jain, J.
11. I agree.