Orissa High Court
Ajay Kumar Patra And Ors. vs Tulasi Bewa And Ors. on 17 January, 1996
Equivalent citations: AIR1996ORI117, 1996(I)OLR337, AIR 1996 ORISSA 117, (1996) 2 APLJ 28, (1996) 1 ORISSA LR 337, (1996) 2 CURCC 336
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT Susanta Chatterji, J.
1. The present writ application under Article 227 of the Constitution of India at the instance of the third party interveners in execution case challenged the order/judgment dated 16-12-1995 passed by the learned District Judge, Balasore in Civil Revision No. 43 of 1995. The said Civil Revision arose out of an order dated 10-5-1995 made by the learned Subordinate Judge, Balasore in Execution Case No. 19 of 1986
2. It appears from the materials on record that the aforesaid Execution Case No. 19 of 1986 is pending for effecting partition in a suit for partition being decreed finally. In the aforesaid execution case, the decree-holder has prayed for police help so that she can get delivery of possession of the allotted immovable properties. Meanwhile the third party-petitioners have appeared and filed petitions expressing their intention to resist the delivery of possession. Upon consideration of the materials on record, the Executing Court recorded that it cannot pass any order enforcing the writ of delivery of possession, muchless with police help. Attention of the Executing Court was drawn to a case reported in AIR 1974 Madhya Pradesh 26 (Bhagwat Narayan Dwivedi v. Kasturi).
3. The decree-holder being aggrieved by the said order preferred Civil Revision No. 43/95 as aforesaid before the learned District Judge. The learned District Judge having considered the contentions of both sides has allowed the revision directing, inter alia, that the writ of delivery of possession be enforced immediately.
4. The third party-interveners thus being aggrieved have come to this Court challenging the order of the learned District Judge.
5. Mr. Mohanty, learned Senior Counsel appearing in support of the present petition has submitted that the learned District Judge has committed material irregularity in exercising jurisdiction by allowing the civil revision. The concept of law as found by the learned District Judge is erroneous. In support of his contention, he has drawn the attention of the Court to a decision reported in AIR 1987 Andh Pra. 206 (Smt. Zeharm Sayeed v. M. Shasmugra). The learned single Judge of the Andhra Pradesh High Court has found:--
"When the third party, not bound by the decree, approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 2, Rule 97, it must be treated to be an intimation to the Court as caveat to the decree-holder or purchaser or a person claiming through him and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 of Order 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104."
The learned single Judge of the Andhra Pradesh High Court differed with the view expressed in the Full Bench decision of the Madhya Pradesh High Court, reported in AIR 1980 Madh Pra 146(FB), The view of the Madhya Pradesh High Court was dissented on the footing that the objection of the third party-interveners should be treated under Section 151, C.P.C. and the procedure envisaged in Order 21, Rules 98 and 101. C.P.C. is to be followed treating it to be a decree under Order 21, Rule 103, C.P.C.
6. Mr. Mohanty has further drawn the inspiration from a recent decision of Calcutta High Court reported in AIR 1995 Cal 263 (Gopi Krishna Mali v. Judhistir Dey). The single Bench of the High Court at Calcutta while considering the scope of prayer for police help by the decree-holder considered the ratio of the decision made in AIR 1980 Madh Pra 146 (FB) (Usha Jain v. Manmohan Bajaj) and several other earlier decisions of the High Court of Calcutta and found, inter alia, that the Civil Rules and Orders of the High Court at Calcutta as made under Section 122, C.P.C. has bearing upon the facts of the said case. Under Rule 208 of the aforesaid Civil Rules and Orders it is indicated inter alia:
"A decree-holder praying for police help in execution shall state in his application the full reasons thereof supported if required by an affidavit. ....."
By construing Rule 208, Sub-rule (2)(a)(b) or (c) and also ratio of the decision on that score reported in 1991 Vol. II C.H.N. 502, it was concluded that there was no material in support of the decree holder's plea that he can get the luxury of taking recourse to extreme step of police help without affording an opportunity of hearing to the person actually in possession hut not claiming through judgment-debtor. Such extreme step in an undue haste will not fit in with the concept of caution and circumspection which are required to be resorted to before allowing an application for police help to dispossess any person in occupation by way of his purported bid to assert independent right. It was found further in the facts and circumstances of the said case at Calcutta that the order did not appear to be a speaking order In tune with modalities which have been repeatedly prescribed by said Court where reasons are required to be recorded for passing an order for such extreme step by police help. The facts and the points of law arc, however, completely different in the present case before us.
7. By drawing the attention of the two decisions as aforesaid, Mr. Mohanty has laid much emphasis on the point that if the petitioners who are the third party and not being bound by the decree can certainly make an application and such application either may be treated as an application under Section 151, C.P.C. or may be, taken as objection to the prayer for police help and the enquiry should be made as envisaged under Order 21, Rule 101, C.P.C. and the consequences will follow. According to him the learned District Judge has completely missed the point and the judgment and the order made by the learned District Judge cannot be sustained.
8. The present writ petition under Article 227 of the Constitution is .seriously opposed by the decree-holders. Mr. R. K. Mohapatra, learned Senior Advocate appearing for the decree-holders has made a lengthy argument before us drawing the attention of the Court to the decision reported in AIR 1980 Madh Pra 146 (supra) where the Full Bench had taken notice of the provision under Order 21, Rules 97, 98, 99, 100 and 101, C.P.C. before amendment and after amendment of the Civil Procedure Code in 1976. The Full Bench of Madhya Pradesh High Court had discussed in details the various aspects of Order 21, Rule 97 and found, inter alia, that the decision of the Division Bench in AIR 1974 Madh Pra 26 (Bhagwat Narayan v. Kasturi) was not found to be correct. The view expressed in 1972 MPLJ 254 (Ramgulam v. Mahendra Kumar) was affirmed, in allowing the decision, the Full Bench relied upon the Full Bench decision of this Court reported in AIR 1952 Orissa 120 (FB) (Nityananda v. Baja Devi) and also the decision of the Bombay High Court, reported in AIR 1933 Rom 457 (FB) (Mukund Bani v. Janu Sakhu), In particular, construing the proposition of law the ratio as found in the Full Bench decisions of this High Court reported in AIR 1952 Orissa 120 (supra) was heavily relied upon. Jagannadhadas, C. J., speaking for the Full Bench of this Court observed, inter alia: --
"The third party-objector does not at all come into the picture at that stage and can have no right at the time to compel the decree-holder or the auction-purchaser to submit to an investigation, into the title or possession."
The decision of the Full Bench of this Court is obviously binding on us. Mr. Mohanty by virtue of his wisdom has submitted that if this Court does not agree may refer the matter to a larger Bench for appropriate consideration. It is brought to our notice further that apart from this controversy as to the question of locus standi of the third party to intervene in the pending execution case and/or the consequences when the decree-holders pray for the police help if there is any third party, there are allegations as if the petitioners are not essentially third parties. Since their mother was made a party, and by privity of title, they are bound by the judgment. Mr. Mohanty has appropriately sought the leave of the Court to meet this point by filing further counter affidavit which we found not proper to enlarge the horizon by permitting a party before this Court to file affidavit or counter affidavit and to entertain disputed question of facts. The Courts below have not considered this point and this controversy may not be raised again before this Court, under limited jurisdiction of Article 227 of the Constitution invoking general power of superintendence to interfere with the order made by the learned District Judge in revision.
9. Regard being had to the proposition of law, we find that the ratio of the decision in the single Bench judgment reported in AIR 1987 AP 206 (supra) and/or in AIR 1995 Cal 263 (supra) does not support the actual locus standi of the third party in the facts and circumstances of present case. The point of law as found by the Full Bench decision of this Court is well appreciated and explained by another Full Bench judgment of Madhya Pradesh High Court as discussed above is obviously binding on us and we do not think that a larger issue has been raised with regard to the facts of the present case, where the points need to be gone into. We are, however, of the view that if the petitioners have got any independent title, there is no bar and/or impediment for filing a proper suit to protect their right and the scope of any investigation under Order 21, Rules 97, 99 and 101, C.P.C. is not called for. For the aforesaid reasons, we are not inclined to interfere with the order and the present writ petition is thus disposed of accordingly. We make it, however, clear that any observation made by the executing Court or by the revisional Court or by this Court will not prejudice the right of the third party in the event an independent suit is brought in accordance with law.
P.K. Mohanty, J.
10. I agree.