Karnataka High Court
C. Some Gowda vs C. Ranga Rao And Ors. on 3 December, 2003
Equivalent citations: ILR2004KAR705, AIR 2004 (NOC) 293 (KAR), 2004 AIR - KANT. H. C. R. 629 (2004) 2 CIVLJ 211, (2004) 2 CIVLJ 211
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
ORDER
21 RULE 97 -- The Stranger/objector can claim an independent right, title and interest in the decreetal property, provided he should produce sufficient material to establish his title to the property before the executing Court.
(B) ORDER 21 RULE 101 - The executing Court to adjudicate the questions as required under -- If the application under Order 21 Rule 97 is dismissed, there remains nothing to adjudicate under Order 21 Rule 101. HELD: When the decree holder has already taken the delivery of possession of property, and if there is no resistance to delivery of possession, the question of determining the title or possession, does not arise for the executing Court once again.
Dismissing the MFA filed under Order 43 Rule 1 the Court.
Held:
Order 21 Rule 97 is a statutory remedy both to the decree holder as well as to the objector to have their respective say in the matter and get the proper adjudication before the executing Court. This provision is enacted with a view to see that multiplicity of proceedings and parallel proceedings are avoided. It is also possible that a stranger to the Decree could claim an independent right title and interest in the decreetal property and can offer his resistance before getting actually dispossessed. He could also equally agitate his grievance and claim for adjudication of his right, title and interest in the decretal property.
The Executing Court having dismissed all the applications filed by the obstructionists under Order 21 Rule 97 and other rules of CPC, nothing remained for the Executing Court to adjudicate or answer any questions as required under Order 21 Rule 101 of CPC.
JUDGMENT Ram Mohan Reddy, J
1. The Decree holder has filed this Appeal under Order 43 Rule 1 of the Civil Procedure Code 1908( for short 'C.P.C.') calling in question the order dated 12.6.2003 passed in Ex.No. 1979/2002 on the file of the Chief Judge, Court of Small Causes, Bangalore, (for short, 'Executing Court').
2. The brief facts leading to the filing of this Appeal are:
The Decree Holder is the owner of the immovable property being a residential house bearing No. 1290 MRHB Colony, Govindrajnagar, Magadi Chord Road, Bangalore -79. The Decree Holder leased the premises to one Ranga Rao - the Judgment Debtor. The Judgment Debtor having refused to vacate the premises, the Decree Holder had to initiate eviction proceedings, which finally resulted in an order for eviction of the Judgment Debtor. The Judgment Debtor filed O.S. 168/1986 contending that the Decree Holder was trying to forcibly dispossess him from the plaint schedule premises which was withdrawn by the Judgment Debtor subsequently. It is also contended that the Decree Holder having retired from the service as an Executive Engineer in Public Works Department, on coming to know that the Judgment Debtor had played a fraud by securing the sale deed of the said immovable property from the Karnataka Housing Board as power of Attorney Holder of the Decree Holder, compelled the Decree Holder to move the authorities of the Karnataka Housing Board who cancelled the said sale deed. It is also alleged that immediately after securing the sale deed by the Judgment Debtor, he had conveyed the title of the property to his wife-Dhanalakshmi who in turn, had executed the sale deed in favour of late Dhanraj, a practicing Advocate. In this regard, the Decree Holder on information of the mischief got issued a notice through his counsel to the said Dhanraj informing him about the rights of the Decree Holder and also requesting him not to enter into any transaction or become a victim of mechanisation of the Judgment Debtor or his wife.
3. The Decree Holder armed with an order of eviction, filed an Execution Petition to execute the said order in Ex.No. 1979/2002. In the said proceedings, it is not in dispute, that the Decree Holder secured possession without any resistance or obstruction either from the legal representatives of deceased Dhanraj or muchless the Judgment Debtor - Rangarao or his wife Dhanalakshmi. However, in the proceedings before the Executing Court, the legal representatives of deceased Dhanraj viz. respondents 2 to 4 filed applications under Order 21 Rule 97, 99, 100, 101 r/w Section 151 of C.P.C. objecting the delivery of possession. The objectors neither adduced oral evidence nor advanced argument on the applications filed by them. The Civil Court having considered the applications and the relevant fact that there was neither resistance nor obstructions offered by the objectors to the Decree Holder while taking possession of the immovable property, held that the applications filed by the objectors were not maintainable and accordingly dismissed the applications. The appellant-decree holder has called in question the said order in so far as it relates to failure on the part of the Executing Court in not holding an enquiry and determining the question of title to the immovable property while dismissing the applications.
4. The learned Counsel for the appellant sought to contend that the Executing Court ought to have determined the question of title to the property since an enquiry is permissible under Order 21 Rule 101 of C.P.C. particularly when the respondents 2 to 4, the objectors had claimed title to the property.
5. Having heard the learned Counsel for the appellant, the only point that arises for consideration is "whether the Executing Court was justified in dismissing the applications of the obstructionist without determining the question of title to the immovable property as isenvisaged under Order 21 Rule 101 of C.P.C.?"
6. Order 21 of the C.P.C. lays down the provisions regarding execution of the decree for possession obtained by the Decree Holder and whose attempt on executing the said decree meet with either resistance or obstruction.
7. In the event of resistance or obstruction offered by any person the remedy available to the Decree Holder is under Order 21 Rule 97 for possession. Order 21 Rule 97 is a statutory remedy both to the Decree Holder as well as to the objector to have their respective say in the matter and get the proper adjudication before the executing Court. This provision is enacted with a view to see that multiplicity of proceedings and parallel proceedings are avoided. It is also possible that a stranger to the decree could claim an independent right, title and interest in the decretal property and can offer his resistance before getting actually dispossessed. He could also equally agitate his grievance and claim for adjudication of his right, title and interest in the decreetal property. This is precisely what happened in the present case. The obstructionists filed their applications believing that they had a right, title and interest over the property. However, they failed to produce any material, to establish their possession or obstruct the delivery of possession to the Decree Holder. It is trite that the Executing Court was justified in dismissing the applications.
8. The admitted fact that the Decree Holder has taken possession of the property without any resistance or obstruction by the obstructionists, is in itself sufficient to hold that the applications of the obstructionists were not maintainable. The Executing Court having dismissed all the applications filed by the obstructionists under Order 21 Rule 97 and other Rules of C.P.C., nothing remained for the Executing Court to adjudicate or answer any questions as required under Order 21 Rule 101 of C.P.C. No exception can be taken to the reasoning of the Executing Court. There is no legal or factual infirmity in the order impugned, calling for interference. The contention of the learned Counsel that the Executing Court ought to have determined the question of title to the property, deserves to be rejected.
9. The Appeal is devoid of merits and accordingly it is dismissed. No order as to costs.