Calcutta High Court (Appellete Side)
Sresth Products Private Limited vs Shyama Prasad Singha Roy And Another on 25 July, 2019
1 S/L. 10.
July 25, 2019.
MNS.
C. O. No. 844 of 2019 Sresth Products Private Limited Vs. Shyama Prasad Singha Roy and another Mr. Pratyush Patwari ... for the petitioner.
Mr. Arik Banerjee ...for the opposite party no. 2.
Affidavit-of-service filed in Court today be taken on record. The petitioner and the opposite party no. 2 are represented by counsel. The decree-holder in an eviction suit has preferred the instant revisional application.
By the impugned order, the Registrar of the City Civil Court at Calcutta postponed the issuance of writ of possession and directed the police authority to be informed about the same at once.
Learned counsel for the decree-holder/petitioner argues that by an order, bearing order no. 25 dated December 15, 2018, the executing court had directed the case records to be transmitted to the Registrar for fixing a date for delivery of possession and submission of report by January 30, 2019.
It is submitted that, in violation of such specific direction, the Registrar went beyond his authority in postponing the issuance of such writ of possession. 2
It is further argued that the opposite party no. 2, being a third party-stranger to the suit, claims title by virtue of an alleged transfer pendente lite from the opposite party no. 1/judgment-debtor and has filed an application under Order XXI Rules 97-101 of the Code of Civil Procedure, which is pending in the executing court.
It is argued that the opposite party no. 2 is hit by the provisions of Order XXI Rule 102 of the Code, which preclude the operation of Rules 98 and 100 of Order XXI of the Code in case of lis pendens transferees from the judgment-debtor.
Learned counsel for the petitioner cites, in support of such proposition, a judgment reported at 2008(7) SCC 144 = AIR 2008 SC 1997 (Usha Sinha Vs. Dina Ram and others), wherein it was held by the Supreme Court that resistance of a decree at the instance of transferee of a judgment-debtor during the pendency of the proceeding cannot be said to be resistance or obstruction by a person in his own right and, therefore, such a person is not entitled to get his claim adjudicated.
In the opinion of the Supreme Court, the doctrine was based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit had no independent right to property to resist, obstruct or object to execution of a decree. It was further held, to invoke Rule 102, it was enough for the decree-holder to show that the person resisting the possession or offering obstruction was claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment-debtor. If the said condition was fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI.
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While controverting such submissions, learned counsel for the contesting opposite party no. 2 submits that the scope of Order XXI Rules 98, 100 and 101 of the Code are wide enough to take within its fold even transferees pendente lite from the judgment- debtor.
Learned counsel places reliance on a judgment reported at (1998) 4 Supreme Court Cases 543 (Shreenath and another Vs. Rajesh and others). In the said judgment, the Supreme Court, inter alia, held that the expression "any person" as envisaged in Order XXI Rule 97 of the Code may be either a person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own, including a tenant not party to the suit or even a stranger.
Learned counsel submits that since the opposite party no. 2 is claiming title through the judgment-debtor, the claim of the opposite party no. 2 under Rule 101 of Order XXI of the Code ought to be adjudicated first before executing the decree.
Learned counsel next places reliance on a judgment reported at (1998) 3 Supreme Court Cases 723 (Silverline Forum Pvt. Ltd. Vs. Rajv Trust and another) for the proposition that resistance under the provisions of Order XXI Rules 97-101 of the Code of Civil Procedure also contemplates a resistance by a transferee pendente lite of the judgement-debtor, although the scope of adjudication in such cases would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the executing court has to hold that he has no right to resist in view of the clear language contained in Rule 102.
Learned counsel next cites a judgment reported at (1997) 3 Supreme Court Cases 694 (Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another), 4 wherein it was held that 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 manner by obtaining warrant for possession under Order XXI Rule 35 then the decree-holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders, after adjudicating upon the controversy between the parties.
By relying on such judgment, learned counsel for the opposite party no. 2 argues that the Registrar was well within his jurisdiction to postpone the matter for a decision on the substantive application taken out by the opposite party no. 2 under Order XXI Rules 97-101 of the Code.
It is further submitted on behalf of the opposite party no. 2 that no issue was decided by the Registrar at all by the impugned order and the Registrar rightly postponed the issuance of the writ of possession and directed the case records to be sent to the concerned Bench taking up the matter.
Upon hearing both sides, it is evident that the limited scope of adjudication in the present matter is whether the Registrar was within his jurisdiction to postpone the issuance of writ of possession and whether Rule 102 of Order XXI of the Code debars the opposite party no. 2 from passing an order of postponement.
Vide order no. 25 dated December 15, 2018, the concerned Bench taking up the execution case, as well as the miscellaneous case filed by the opposite party no. 2, specifically directed the Registrar to fix a date for delivery of possession and to submit a report by January 30, 2019 and as such, the Registrar patently acted without jurisdiction 5 in not complying with such direction even in the absence of any challenge to such direction, and relegating the matter to a further date, thereby, in effect, stalling the operation of the eviction decree. It was entirely beyond the charter of the Registrar to transgress the specific direction of the Bench taking up the execution case and the miscellaneous case and as such, the impugned order postponing the issuance of writ of possession ought to be set aside on such score alone, apart from other reasons.
A composite reading of Rules 98, 100, 101 and 102 of Order XXI of the Code reveal that Rules 98 and 100 are the operative provisions, which provide finality to Rules 97 and 99 respectively.
Rule 97 of Order XXI contemplates a situation of resistance or obstruction to possession of immovable property and Rule 99 of Order XXI contemplates cases of dispossession by a decree-holder or purchaser.
Rule 97 culminates in an order under Rule 98 and Rule 99 reaches its terminus upon an order being passed under Order 100. Both Rules 98 and 100 of Order XXI provide that orders under the said rules are to be based "upon the determination of the questions referred to in Rule 101".
Rule 101, on the other hand, provides that all questions including questions relating to right, tile or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
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There is no doubt that the scope of Rule 101 is wide enough to encompass even resistance by judgment-debtors, as laid down in the judgments cited by the opposite party no. 2.
Although in wider sense, it can be construed that a subsequent purchaser from a judgment-debtor falls within the category of a person claiming through the judgment- debtor, Rule 102 of Order XXI comes in the way. The said Rule 102 provides a specific exception to the operation of Rules 98 and 100 to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment- debtor has transferred the property after the institution of the suit, in which the decree was passed, or to the dispossession of any such person.
In view of the specific terms of Rule 102, a specie, comprised of persons who are transferees from the judgment-debtor during pendency of the lis, is created out of the genus of persons claiming through the judgment-debtor. Hence, Rule 102 operates as a specific bar, which drives a wedge in the otherwise wider interpretation of Rules 98, 100 and 101, read together.
If the arguments of opposite party no. 2 were to be accepted, Rule 102 would be rendered nugatory. Although the provision of Rule 101 very wide in respect of other persons resisting decrees, Rule 102 specifically debars lis pensens transferees from the judgment-debtor from taking advantage of the provisions of Rules 98 and 100.
It may be noted here that, only by virtue of the stipulations in Rules 98 and 100 that the executing court is mandated to pass orders on applications under Rules 97 and 99 of Order XXI of the Code upon determination of the questions referred to in Rule 101. As such, however, wide the scope of Rule 101 may be, the access to the said window is shut 7 out for lis pendens transferees from judgment-debtors, by operation of Rule 102 of Order XXI.
It is noteworthy that Order XXI Rule 102 was not considered in any of the judgments cited on behalf of the opposite party no. 2, apart from Silverline Forum Pvt. Ltd. Vs. Rajv Trust and another (supra) and as such, those decisions cannot be taken as binding precedence so far as the operation of Rule 102 is concerned. Even in Silverline Forum, the scope of adjudication in such cases was held to be shrunk to the limited question whether he lis pendens transferee is such a transferee and on a finding in the affirmative regarding that point, the executing court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Since it is an admitted position that the opposite party no. 2 is such a transferee, no such question has arisen in the present case to justify an adjudication.
Rather, the judgment cited on behalf of the petitioner, in the case of Usha Sinha (supra), specifically deals with the scope of Rule 102 vis-à-vis Order XXI Rules 98, 100 and 101 and endorses the restrictive views taken by this court.
As such, the Registrar acted patently without jurisdiction in postponing the issuance of the writ of possession and virtually, in the process, granting a stay of the connected execution case, in specific violation of order no. 25 dated December 15, 2018 passed by the concerned Bench and overlooking the effect of Order XXI Rule 102 of the Code of Civil Procedure.
Accordingly, C. O. No. 844 of 2019 is allowed, thereby setting aside the impugned order and directing the executing court to proceed expeditiously with the execution of the eviction decree-in-question.
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There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)