Allahabad High Court
Jahid Khan And Another vs Suresh Chand Jain And Others on 2 July, 2013
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR [RESERVED] Case :- WRIT - C No. - 30548 of 2012 Petitioner :- Jahid Khan And Another Respondent :- Suresh Chand Jain And Others Counsel for Petitioner :- Sanotsh Kumar Srivastava,Smt. Alka Srivastava Connected with : Case :- WRIT - C No. - 31464 of 2012 Petitioner :- Sewa Ram Respondent :- Suresh Chand Jain & Others Counsel for Petitioner :- Santosh Kumar Srivastava,Smt. Alka Srivastava Hon. Pankaj Mithal,J.
Petitioners are resisting the execution of the decree passed in Original Suit No. 221 of 1983 which has become final on the ground that their shops exist on the disputed land and since they were not party to the suit, the said shops can not be demolished and they are not liable for eviction therefrom.
The objections of the petitioners to the execution of the decree preferred under Order 21 Rule 98 CPC were rejected as not maintainable and their appeal under Rule 103 of Order 21 CPC has also been dismissed.
The above two orders dated 24.5.2012 and 29.5.2012 have been impugned in this writ petition.
Sri Santosh Kumar Srivastava, learned counsel for the petitioners and Sri Shashi Nandan, Senior Advocate assisted by Sri Vikrant Rana, learned counsel for respondents no. 1,2 and 3 were heard and they had agreed for final disposal of the writ petition on the basis of the averments made in the writ petition and the counter affidavit on record.
The basic submission of the learned counsel for the petitioners is that the courts below are not justified in rejecting the objections of the petitioners as not maintainable. The petitioners can not be evicted from their shops and it can not be demolished pursuant to the decree. The decree is not binding upon them as they are not party to it and are not claiming any rights through the judgment debtors of the said decree.
The contention from the other side is that the decree has attained finality and has to be executed in the form it exits. The petitioners have failed to disclose the manner in which they have acquired rights over any part of the suit property. Their remedy, if any, lies in making application under Rule 99 of Order 21 CPC if at all they are dispossessed illegally in the execution proceedings and the objections on their behalf under Rule 97 of Order 21 are not maintainable.
In view of the rival submissions of the parties let me first examine as to whether petitioners are entitle to resist the decree by filing objections under Rule 97 of Order 21 CPC.
Order 21 Rule 97 CPC has to be read in conjunction with Order 21 Rule 99 CPC. Rule 97 is actually a remedy available to the decree holder to make a complaint to the executing court, if execution of the decree is resisted or obstructed by any person in possession of the property. At the same time Rule 99 of Order 21 CPC stipulates that where any person other than judgment debtor is dispossessed from the immovable property by the decree holder, he can apply to the court complaining about such dispossession. The executing court in both the cases is under obligation to determine the rights of the parties and the order is appellable as decree under Rule 103 of Order 21 CPC.
For the sake of convenience Rule 97 and 99 of order 21 CPC are reproduced herein below:--
97. Resistance or obstruction to possession of immovable property-.
"(1) 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 obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to execute upon the application in accordance with the provisions herein contained."
99. Dispossession by decree-holder or purchaser-
(1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
A plain reading of Rule 97 literally provides for a remedy available to the decree holder who is being obstructed in the execution of decree by a third party claiming to be in possession of the property. It is not a remedy available to the person resisting or obstructing the decree. Nonetheless, visualizing the hardship faced by the person in possession, the Supreme Court formed an opinion that it is improper to allow a person in possession to be first dispossessed and then to make a complaint about his dispossession and therefore it is always in the interest of justice that his rights be adjudicated before he is actually dispossessed.
Thus in Brahmadev Chaudhary Vs. Rishikesh Prasad Jaiswal and another AIR 1997 SC 856 after considering the provisions of Rule 97 and 99 of Order 21 CPC it was ruled that where a decree of possession is obstructed by a stranger claiming himself to be in possession, his rights are to be adjudicated before he looses his possession to the decree holder.
The Court observed as under:-
"Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree holder the remedy available to the decree holder against such an obstruction is only Order XXI, Rule 97 sub-rule (1) and he can not by pass such obstruction and insist on re-issuance of warrant for possession under Order XXI. Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI. Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court is 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 XXI, Rule 99 CPC and pray for restoration of possession."
A similar question whether the third party in possession of the property claiming independent right as a tenant and not party to a decree in execution could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 CPC come up for consideration before the Supreme Court in Shreenath and another Vs. Rajesh and others AIR 1998 SC 1827. Their Lordships of the Supreme Court held that any person claiming rights of his own in the suit property can resist the execution by filing objections under Order 21 Rule 97 CPC and he need not wait for his dispossession and thereafter file objections/application under Rule 99 of Order 21 CPC. It means that a stranger in possession claiming independent rights in the property can object and get his rights adjudicated prior to his dispossession by the decree holder under Rule 97 of Order 21 CPC.
A similar view has also been expressed by the Supreme Court in Anwarbi Vs. Pramod D.A. Joshi and others (2000) 10 SCC 405. In the said case while considering the provisions of Order 21 Rule 97 CPC their Lordships held where the execution of a decree is obstructed by a third party, it is the decree holder who has to take appropriate steps under Order 21 Rule 97 CPC for removal of obstructions and to get the rights of the parties adjudicated and that when a person in possession of immovable property obstructs the execution of the decree he may not be dispossessed till his rights are adjudicated in execution proceedings and the decree holder can not take possession unless such proceedings terminated in his favour.
In view of the above decisions of the Supreme Court the law appears to be settled that once a complaint resisting or obstructing a decree execution of a decree of possession of immovable property is made by a person claiming to be in possession, his rights thereof are liable to be adjudicated first before he is dispossessed and he should not wait for loosing possession to the decree holder and then to make an application under Rule 99 of Order 21 CPC.
In the light of the above legal position, the courts below fell in error in rejecting objections of the petitioners under Rule 97 of Order 21 CPC as not maintainable. The rights of the petitioners have not been adjudicated by any of the courts on merit.
The appellate court has only stated that the petitioners in their objections have not clarified the location of their shops and therefore are not entitle to any protection.
The decree passed in Original Suit No. 221 of 1983 is in respect of khasra no. 1203 area 1bigha 3 biswa and khsra no. 1245/A area 1 bigha, situate in quasba Baraut, District Baghpat.
The decree is for injunction in respect of land of khasra no. 1245/A and for eviction of the defendants in respect of land of khasra no. 1203. The petitioners in the writ petitions are claiming that their shops having area of 8ft./31 ft. with a sahan 8ft/15 ft. is on part of khasra no. 1203.
The contesting respondents are probably not disputing the above contention of the petitioners but in paragraph 10 of the counter affidavit they allege that the petitioners have not stated anything as to how they have acquired rights or possession over the said property and that as per the Amin report dated 5.8.1983 they are not in possession of any part of the said land.
In view of the above, it was incumbent upon the courts below in deciding the objections of the petitioners to find out the nature of the rights of the petitioners over the disputed part of the property and as to whether their shops form part of the suit land.
The courts below have not dealt with any of the above aspects while rejecting the objections.
In view of the aforesaid facts and circumstances, I am of the opinion that the matter requires reconsideration by the executing court on merits of the objections preferred by the petitioners under Order 21 Rule 97 CPC.
Accordingly, the impugned orders dated 24.5.2012 and 29.5.2012are quashed and the matter is remanded to the executing court for fresh decision of the objections under Order 21 Rule 97 CPC in accordance with law as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order.
SKS 2.7.2013