Madhya Pradesh High Court
Prabhakar Singya vs Natthu Khan on 4 May, 2017
1
WRIT PETITION NO. 2417/2017
04.05.2017
Shri A.K. Pathak, learned counsel for the petitioner.
None for the respondent.
Petitioner, an objector to an execution of a decree in Civil Suit No. 41-A/97-05 has filed this petition under Article 227 of the Constitution of India being aggrieved by an order dated 18.10.2016 passed by Executing Court dismissing the objection raised vide application under Order 21 Rule 99 read with Rule 101 of the Code of Civil Procedure, 1908.
The Civil Suit in question was at the instance of respondent Nos. 1 and 2 for declaration and possession of the land bearing Khasra No. 1702/1, area 0.26 acre situated at village Palera district Tikamgarh and permanent injunction. The declaration was also sought that the sale deed executed by defendant No. 1 in favour of defendant No. 3 on 11.10.1996 is void ab initio, accordingly, plaintiff also claimed that the construction raised over the suit property be demolished. The suit was decreed on 31.10.2000. Appeal and Second Appeal filed there-against were dismissed.
In an execution proceeding the petitioner on the anvil of the reports by the Revenue Authorities as to the physical status of the land in question filed an objection before the executing Court vide application under Order 21 Rule 99 read with Rule 2 100 CPC inter alia on the ground that their (petitioners') shop is standing over Khasra No. 1710/1 and the plaintiffs are trying to take possession thereof under the garb that it is over the plaintiffs' land bearing Khasra No. 1702/1. The plaintiffs objected to the application. The Trial Court while adjudicating the application by order dated 18.10.2016 dismissed the same holding that such objection can only be considered after dispossession. It is this order which is taken exception of on the basis of the law laid down by the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another (AIR 1997 SC 856) and in Shreenath and another v. Rajesh and others (AIR 1998 SC 1827).
In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another (supra) it is observed by their Lordships:
"5. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree- holder and whose attempts at executing the said decree meet with rough weather. 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 obstructionist in only under Order XXI Rule 97 sub-rule (1) and he cannot bypass 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 bypassing and 3 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 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 XXI 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 XXI Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise 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 losing possession as per Order XXI Rule Order XXI 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. While Order XXI Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors 4 the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the 5 contrary the statutory scheme envisaged by Order XXI Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI Rules 97 and 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."
In Shreenath and another v. Rajesh and others (supra) it is held:
"15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the Executing Court. but this will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under rule 97 and in case dispossessed adjudication to be under rule 100 (old law) and Rule 99 under the new law. Thus a person holding 6 possession of an immovable property on his own right can object in the execution proceeding under Order 21, rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Smt. Usha jain (supra) correctly decided the law.
Though a strong prima facie case is made out by the petitioner; however, because of the embargo under Order 21 Rule 103 CPC, which provides for that "103. Order to be treated as decrees.-Where any application has been adjudicated upon under Rule 98 or 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." It will be beyond the scope of Article 227 of the Constitution of India to cause a judicial review of an order which partakes the character of a decree. Instead the petitioner will have to take recourse of filing an appeal against the order passed by the Executing Court or an application under Order 21 Rule 99 read with Rule 100 C.P.C, In this context reference can be had of a decision by Full Bench of Andhra Pradesh in Gurram Seetharam Reddy v. Smt. Gunti Yashoda and another (AIR 2005 AP 95); wherein it is observed:
35. When Section 96 C.P.C. specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs 7 that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical purposes, more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21 C.P.C. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least in the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals, needs to be dealt with by the High Court or the District Courts, on administrative side. Hence, we are of the view that the judgment of this Court in Nookaraju's case (1supra) does not lay the correct proposition of law. Once it is held that orders passed under Rule 58(3) and Rules 98 and 100 of Order 21 C.P.C., are appealable under Section 96 C.P.C., it is axiomatic that a second appeal is maintainable against the order passed in such appeals. Though this question is not referred to this Full Bench, it is dealt with, to put an end to the controversy and uncertainty."
Though it is contended on behalf of the petitioner that unless an application is adjudicated upon, the petitioner may not have a remedy under Rule 103 of Order 21 C.P.C; however, as the executing court has passed an order on an application 8 preferred by the petitioner under Order 21 Rule 99 read with Rule 100 CPC the same partakes the nature of adjudication as the adjudication means the process of judicially deciding a case.
Since the petitioner has remedy by way of an appeal under under Rule 103 Order 21 C.P.C against the impugned order, this Court refrains from entertaining the writ petition under Article 227 of the Constitution of India.
The petition stands disposed of finally in above terms. Let certified copy of the impugned order be returned to the petitioner on petitioner's furnishing a true copy of the same. Needless to say petitioner would be entitled to count for the period spent in prosecuting this petition.
C.c as per rules.
(SANJAY YADAV) JUDGE vivek tripathi