Gauhati High Court
Gopal Das vs Xx And 3 Ors on 6 August, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010235592016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/62/2016
GOPAL DAS
S/O LT. ANIL DAS, R/O VILL. P.M. DUTTA ROAD, W/NO. 2, DHUBRI TOWN,
P.O. and DIST- DHUBRI, ASSAM
VERSUS
xx and 3 ORS
xx
2:ATINDRA NATH DUTTA
S/O LT. UPENDRA NATH DUTTA
R/O 575 BLOCK-P
P.O. NEW ALIPUR
KOLKATA-53
WEST BENGAL
3:ANANDITA DAS
C/O PROTIBHA BARMAN
W/O LT. PARESH DAS
R/O HAZARA PARA
DIST- COOCHBIHAR
WEST BENGAL
4:DIBAKAR MAZUMDAR
S/O LT. SATISH CH. MAZUMDAR
R/O RABINDRA SARANI
DHUBRI
W/NO.4
P.O.
P.S. and DIST- DHUBRI
ASSA
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Advocate for the Petitioner : MR. H R A CHOUDHURY
Advocate for the Respondent : MD. ASLAM (R1, R2, R4)
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Date : 06-08-2022
1. Heard Mrs. R. Choudhury, the learned counsel appearing on behalf of the Petitioner and Mr. P. Deka, the learned counsel appearing on behalf of the Respondents.
2. This is an application under Article 227 of the Constitution of India challenging the order dated 07.06.2016 passed in Title Execution Case No.30/2015 arising out of Title Suit No.195/2009.
3. The brief facts of the instant case is that the Respondent No.4 as Plaintiff had filed a suit against the Respondent No.3 for eviction. The said suit was registered and numbered as Title Suit No.195/2009. Vide a judgment and decree dated 07.07.2011 the said suit being Title Suit No.195/2009 was decreed. Against that, an appeal was preferred by the Respondent No.3 herein which was also dismissed. Subsequent thereto, a revision application was also filed before this Court which was also dismissed.
4. Thereupon, an execution application was filed by the Respondent No.4 herein before the Court of Munsiff No.1, Dhubri which was registered and numbered as Title Execution Case No.30/2015.
5. In the said proceedings, an application was filed by the Petitioner herein for stay of the proceedings in Title Execution Case No.30/2015. A perusal of the said petition reveals that the Petitioner herein claimed to be in possession the Page No.# 3/7 suit land which was the subject matter of Title Suit No.195/2009 for the last 25 years. It is the specific case of the Petitioner in the said application that the Respondent No.4 fraudulently filed Title Suit No.195/2009 against the Respondent No.3 who was not at all in possession of the suit land and illegally obtained the decree on 07.07.2011 without making the Petitioner as a party to the said suit. It was further mentioned that the said decree in Title Suit No.195/2009 was not binding upon the Petitioner. Further to that, it was mentioned that the Petitioner on coming to learn about the decree in Title Suit No.195/2009 from the decree holder i.e. the Respondent No.4 filed a suit before the Court of the Munsiff No.1, Dhubri which was registered and numbered as Title Suit No.82/16 alongwith a Misc. (J) Case No.32/16 for injunction restraining the decree holder from evicting the Petitioner and his family members. It is under such circumstances a stay was sought for in respect to the execution proceedings.
6. Pursuant to the said application, the Petitioner had filed an application under Section 151 of the C.P.C. praying for calling present actual possession report and the status of the decreetal land from the Circle Officer, Dhubri Circle, Dhubri for proper adjudication of the petition filed by the petitioner.
7. A conjoint reading of both the applications filed by the Petitioner herein shows that the Petitioner had resisted the delivery of possession in pursuant to the judgment and decree passed by the Trial Court in Title Suit No.195/2009 on the ground that the Petitioner had a possessory right over the decreetal land being in possession for the last 25 years. In both the applications the decree holder i.e. the Respondent No.4 has filed objections. In the meantime, while the said applications were pending, an application was filed under Order I Rule 8A read with Section 151 of the C.P.C. by the Government pleader through the Page No.# 4/7 Deputy Commissioner stating inter alia that the land in respect to which the decree was passed, was a Government land and as such the State Authority is required to be impleaded as an Opposite Party to the execution proceedings.
8. Be that as it may, the Executing Court took up all the petitions together and vide the order dated 07.06.2016, rejected each of the applications. It is pertinent herein to mention that the application filed by the State of Assam was rejected as not maintainable as the decree can be executed in absence of the State of Assam and the suit was not with regard to title. The said order however has not been put to challenge by the State Authority.
9. The petitions filed by the Petitioner which were Petition Nos. 60 and 67 were taken up by the Executing Court. The Executing Court after taking into account the contents of the applications and the objections so filed, came to an opinion that the said application would not come within the ambit of Section 47 of the Code of Civil Procedure. The Executing Court further examined taking into account that the claim made by the Petitioner that the petitioner has been residing in the decreetal land for the last 25 years and acquired valid possessory right and also took into consideration the materials on record on the basis of which the Petitioner had claimed right over the decreetal land. The Executing Court observed that there was not a single scrap of paper shown that the Petitioner was in possession of the decreetal land. Further to that, the Executing Court also perused the records of Title Suit No.195/2009 and the document proved therein during the trial. It was observed that the Petitioner was not in the scene till the filing of the petition before the Executing Court. It was further observed that during the entire trial, the Respondent No.3 who was the judgment debtor admitted that she was the tenant of the plaintiff/Respondent No.4 herein and hence the question of possessing the decreetal land by the Page No.# 5/7 Petitioner since 25 years back is nothing but an imaginary one. It was observed that the prayer for calling the present actual possession report from the concerned people also suggests that the petitioner in collusion with the judgment debtor might have possessed the decreetal land. It was further observed that the attempt made by the Petitioner is nothing but an attempt to delay the matter of execution of the lawfully obtained decree. Further to that, the Executing Court also observed that the Petitioner had no right in the decreetal land and therefore had no right to obstruct the execution of the decree on the ground that he has filed a title suit as he is a stranger to the execution proceedings.
10. In the backdrop of the above, let this Court take into consideration what is the scope and ambit of the order impugned in the instant proceedings inasmuch as the Executing Court went into the question of the Petitioner having no right over the decreetal land. Order XXI Rule 97 of the Code relates to resistance or obstruction to possession of an immovable property. Sub-Rule (1) of Rule 97 stipulates that when the holder of a decree for possession of an immovable property or the purchaser of any property sold in execution of the 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. It was further mentioned in Sub-Rule (2) that when an application is made under Sub-Rule (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. The Supreme Court in the case of Shreenath and Another Vs. Rajesh and Others reported in (1998) 4 SCC 543 observed that the words "any person" is wide enough to include even a person not bound by a decree claiming right in the property on his own including that of a tenant not party to the suit or even a stranger.
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11. In the case of Silverline Forum Private Ltd. Vs. Rajiv Trust and Another reported in (1998) 3 SCC 723, the Supreme Court observed that Rule 97 to 106 in Order XXI of the Code are subsumed under the caption "resistance to delivery of possession to decree holder or purchaser". These rules are intended to deal with every sort of resistance or obstruction offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree holder shall have to make an application complaining of the resistance or obstruction. Further to that the Supreme Court taking into account Sub-Rule (2) observed that it is incumbent on the Court to proceed to adjudicate upon such complain in accordance with the procedure laid down. In Paragraph No.10 of the said judgment, the Supreme Court observed that 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 even if an adjudication is warranted as a consequence of the resistance or of obstruction made by him to the execution of the decree.
12. In the backdrop of the above observations of the Supreme Court and applying the same to the facts of the instant case, it would be seen that in view of the application filed under Order XXI rule 29 and the obstruction so caused to the delivery of possession by filing the Petition No.60 and 67 by the Petitioner herein, the Executing Court vide the impugned order decided on the merits in terms with Order XXI Rule 97 and 101 and passed an order which would be deemed to be a decree in terms with Order XXI Rule 103. Under such Page No.# 7/7 circumstances, the instant proceedings under Article 227 of the Constitution of India is not maintainable in view of the fact that there is a specialized forum under the provisions of the Code of Civil Procedure to file an appeal against the decree.
13. In view of the above, the instant petition stands dismissed.
14. Interim order dated 22.06.2016 staying further proceedings in Title Execution Case No.30/2015 is vacated and the parties are directed to appear before the Executing Court on 12.09.2022 and the Executing Court shall proceed with the Title Execution Case No.30/2015 in accordance with law.
15. Before concluding, it is observed that the instant petition has been dismissed on the ground that the same is not maintainable as an appeal provided under the Code of Civil Procedure. It therefore appears that the Petitioner ought to have filed an appeal rather than initiating the jurisdiction of this Court under Article 227. Consequently, the petitioner, if so advised, may prefer an appeal or take appropriate proceedings against the impugned order and the period of the pendency of the instant proceedings may be excluded while computing the period of limitation.
JUDGE Comparing Assistant