Andhra HC (Pre-Telangana)
Arastu Talimi Trust vs Syed Shah Shujauddin Quadri (Died) By ... on 20 October, 2000
Equivalent citations: 2001(1)ALD325, 2000(6)ALT619, 2001 A I H C 822, (2001) 1 RENCJ 222, (2001) 1 RENTLR 522, (2001) 1 ANDHLD 325, (2000) 6 ANDH LT 619
Author: Vaman Rao
Bench: Vaman Rao
ORDER
1. Heard both sides and considered the material on record.
2. This civil revision petition is directed against the order dated 26-10-1999 passed in EA No.106 of 1996 in EP No.49 of 1996 in RC No.100 of 1994 on the file of the II Additional Rent Controller, Hyderabad in which the petitioner's application purported to have been filed under Rule 23(7) of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for short 'the Rules') has been dismissed.
3. The relevant facts leading to the trial Court's order may be stated briefly as follows:
The petitioner herein is the third party -claim petitioner before the Rent Controller.
Respondent No. 1 herein is the decree holder-execution petitioner before the trial Court and respondent No.2 is the judgment debtor. It appears during the pendency of the proceedings, respondent No.1 decree holder died and his legal representatives have been shown as respondents 3 to 8 in the said EA. In the said case, the order for eviction against respondent No.2 was passed.
4. On behalf of the decree-holders, an execution petition in EP No.49 of 1996 was filed. When the decree was sought to be executed, the petitioner herein objected to the execution of the said decree and filed the present EA No.106 of 1996 and sought that the eviction order be set aside and the eviction petition may be closed.
5. The claim of the petitioner herein is that he had purchased the premises, namely, mulgi bearing Municipal No.22-5-44 situated at Charminar, Hyderabad along with other mulgies with first floor under a registered sale dated 26-3-1955. It is stated that the said mulgi was leased out to respondent No.2 herein. The petitioner filed a suit for eviction and possession and mesne profits in OS No.4717 of 1991 on the file of the VII Assistant Judge, City Civil Court, Hyderabad and after contest, the suit was decreed on 10-4-1996. Respondent No.2 preferred first appeal in AS No.174 of 1996 on the file of the Additional Chief Judge, CCC, Hyderabad and the same is pending. It is stated that while so, respondent No.1 filed eviction petition in RC No.100 of 1994 with false, baseless and mischievous allegations that there existed mulgi in the front side passage of the mulgi (shop) claimed by respondent No.1 which was the subject matter of OS No.4717 of 1991. The sum and substance of the allegation is that there is no mulgi in existence bearing Municipal No.22-5-43/4 and that it is a fictitious premises with a false number. It is stated that this fictitious mulgi has been shown in the land used by the petitioner as passage to his premises bearing No.22-5-44. Thus, it is contended that under the garb of the execution of the order in RC No.100 of 1994, respondent No.1 is in effect trying to take possession of the land used by the petitioner herein as passage to his mulgi. Thus, it is averred that the eviction order was obtained by respondent No.1 in respect of non-existent mulgi (shop) by false and fraudulent representation.
6. A counter has been filed in this petition denying these allegations. It is stated that there is a separate passage for mulgi of the petitioner which he closed for some other purpose. It is denied that in the name of taking possession of 22-5-43/4, respondent No.1 seeks to take possession of the premises No.22-5-44 belonging to the petitioner herein.
7. During the enquiry, on behalf of the petitioner, PWs.1 and 2 have been examined and Exs.P1 to P21 have been marked. RW1 has been examined on behalf of the first respondent-decree holder and Exs.R1 to R23 have been examined. However, the learned Rent Controller has dismissed the petition without going info the merits of the case on the ground of non-maintainability of the petition, which has been filed under Order 21, Rule 58 of CPC read with Rule 23(7) of the Rules.
8. To appreciate the contentions raised, it would be apposite to extract sub-rule (7) of Rule 23 of the said Rules.
"23.(1) xxxx (2) to (6) xxxx (7) If such execution is resisted and obstructed by any person other than the person against whom order of eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause, and that such resistance and obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction, and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or on account of some person other than the person against whom the order of eviction was passed, he shall make an order disallowing the execution against such person".
9. The learned Rent Controller has held that under this provision, only the decree holder can file a petition, if any person resisted or obstructed the execution of the decree without any just cause and that no third party can invoke the provision under Rule 23(7) of the Rules and accordingly held that the petition is not maintainable under Rule 23(7) of the said Rules.
10. The learned Rent Controller referring to Order 21, Rule 58 of CPC held that this provision is applicable only to the attachment of the properties and the present petition is not maintainable under this provision.
11. It may be pertinent to mention here that Order XXI, Rule 58 of CPC seems to have been mentioned mistakenly instead of Order 21, Rules 97 and 101 of the CPC.
12. The question that arises for consideration is whether a third party to the proceedings can invoke the provision under sub-rule (7) of Rule 23 of the Rules for resisting his eviction under eviction orders passed under the Act and whether he can approach the Court of Rent Controller for adjudicating his objection for execution of the orders.
13. It may be pointed out that sub-rule (7) of Rule 23 of the Rules does not specifically mention as to who can file an application under the said provision. What it contemplates is if execution of an order passed under the Act is resisted and obstructed by any person other than the person against whom the order of eviction was passed, the Rent Controller may hold a summary enquiry into the facts of the case. It further contemplates that after an enquiry, if the Rent Controller finds that the resistance or obstruction is without any just cause and that such resistance and obstruction still continues, he shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom the order of eviction was passed claiming in good faith to be in possession of the building on his own account or on account of some person other than the person against whom the order of eviction was passed, he shall make an order disallowing the execution against such person.
14. To hold that this provision could be invoked only by the decree holder or the person in whose favour eviction order is passed and that it cannot be invoked by the third persons who are not parties to the order of eviction would lead to undesirable consequences and would defeat the object of the provision itself. If on the basis of an eviction order, a person who was not a party to the proceedings is sought to be evicted and if it is held that he cannot invoke the provision of Rule 23(7) of the rules, it may lead to driving him to physically resist his eviction, with probable consequence of violence, at which stage the petitioner decree holder will have to approach the Rent Controller under the said rules. Such an interpretation encouraging physical resistance and violence, before the Court is called upon to give its finding on the justification for such objection and resistance cannot be justified.
15. This provision under Rule 23(7) of the Rules is analogous to and in fact seems to have been derived from the provision under Order 21 Rule 97 of CPC, which is extracted below:
"Order XXI, Rule 97: Resistance or obstruction to possession of immovable property :-Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction."
16. Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
17. While Order 21, Rule 99 of CPC contemplates that if a third party who is not bound by the decree has been dispossessed in execution of the decree, such person on being evicted can apply under the provision complaining of such dispossession, the provision under Order 21, Rule 97 of CPC contemplates that where the holder of a decree for the possession of immovable properly is resisted or obstructed by any person in obtaining the possession of the property, he may make an application to the Court complaining of such resistance. Unlike the provision under Rule 23(7) of the Rules, Rule 97 of Order 21 of CPC specifically refers to the fact that it is the decree holder who can make an application under this provision.
18. However, the Supreme Court in the case of Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal and another, 1997 SAR (SC) 253, held that where a stranger to the decree obstructs the execution of a decree and if such an obstruction is on record before the executing Court, it must first adjudicate on such obstruction under Order 21, Rule 97 of CPC before applying for execution by using force under Order 21, Rule 35 of CPC. The following observations of the Supreme Court are relevant:
"Once such an obstruction is on the record of the executing Court, it is difficult to appreciate how the executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualize that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after loosing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree holder".
19. Thus, the Supreme Court has held that notwithstanding the fact that Order 21, Rule 97 of CPC refers to making an application by the decree-holder, where an obstruction is on record of the Court, the justification for such obstruction has to be decided irrespective of the question that an application for deciding such obstruction has been filed by the judgment debtor. This principle would apply more appositely to the provision under Rule 23(7) of the Rules which does not specify that an application under that provision can only be made by the decree-holder.
20. In view of this, the order of the learned Rent Controller holding that the claim petition by the petitioner herein is not maintainable cannot be sustained and accordingly, the impugned order is set aside and the matter is remanded back to the learned Rent Controller and he shall hear the EA on merits and pass appropriate orders.
With above directions, this revision petition is allowed.