Madras High Court
G.G.Bharathidasan vs Malini Mai on 13 August, 2014
Equivalent citations: AIR 2015 (NOC) 701 (MAD.)
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.08.2014
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
S.A.No.709 of 2014
G.G.Bharathidasan .. Appellant
-vs-
1. Malini Mai
W/o M.L.Suresh
2. M.L.Suresh .. Respondents
Memorandum of Grounds of Second Appeal under Section 100 of the Civil Procedure Code, against the judgment and decree dated 21.03.2014 made in A.S.No.410 of 2011 passed by the learned VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 22.09.2011 made in E.A.No.8294 of 2009 in E.P.No.1018 of 2009 passed by the learned X Assistant Judge, City Civil Court, Chennai.
For Appellant :: Mr.S.Vasudevan for
Mr.A.C.Kumaragurubaran
For Respondents :: Mr.R.Murali for
Mr.M.Vivekanandan
JUDGMENT
The unsuccessful obstructor, having been aggrieved by the impugned judgment and decree dated 21.03.2014 made in A.S.No.410 of 2011 passed by the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 22.09.2011 made in E.A.No.8294 of 2009 in E.P.No.1018 of 2009 in O.S.No.8516 of 2008 passed by the X Assistant Judge, City Civil Court, Chennai, has brought this second appeal.
2. Mr.S.Vasudevan, learned counsel for the appellant/obstructor submitted that the appellant has been engaged in real estate business and during the course of his business, he came to know about the judgment debtors-M/s Nest Tours and Travels Private Limited represented by its Directors Mr.Ram V.Mani and Mrs.Santha Mani while dealing with a property in Navalur village, since the said Mr.Ram V.Mani agreed to purchase the said property, and thereby he paid an advance and also became close to the appellant. While so, when the appellant was also in search of office accommodation for his own business activities, the first judgment-debtor informed him that he was interested in selling the suit property in order to get rid of the financial crisis and as such, informed the appellant that he required a minimum sum of Rs.1 lakh. In that process, the first judgment-debtor agreed to sell the suit property for a sum of Rs.12 lakhs and as part payment, the appellant paid a sum of Rs.1 lakh by cash towards advance. As a token of acknowledgment, the first judgment-debtor had put the appellant in physical possession of the suit property in May, 2003. Since then, he has been in possession and carrying on the business in the name and style of ''Dasan Associates, Nirmala Arul Foundation'' as Proprietor and thereupon started a private limited company under the name and style of ''Easwari Cubic Associates Private Limited''. When the appellant requested the first judgment-debtor to execute the sale deed in respect of the suit property, it was informed that the said property was mortgaged with REPCO Bank. In view of that, the appellant was requested to pay a further sum of Rs.1,43,000/- towards the said loan account. Accordingly, the appellant paid the said amount to REPCO bank and stopped the property from being sold in the public auction. However, as against his expectation, the judgment-debtors wrongly conspiring with the decree-holders/respondents herein had sold away the property by executing the sale deed dated 2.2.2007.
3. Learned counsel for the appellant further submitted that when the appellant herein was given physical possession of the suit property from May, 2003 and he has been carrying on the business in the name and style of ''Dasan Associates, Nirmala Arul Foundation'' as Proprietor, the decree-holders and the judgment-debtors, colluding with each other, created a sham and nominal sale deed dated 2.2.2007 as if the respondents/decree-holders had purchased the suit property. But much prior to the sale deed dated 2.2.2007, the appellant had become the oral agreement holder by paying a sum of Rs.2,43,000/- as the sale consideration to the suit property. Therefore, the first judgment-debtor was bound to execute and register the sale deed in favour of the appellant by receiving the balance sale consideration, since there was an agreement to purchase the property for a sum of Rs.12 lakhs. When the appellant was all along waiting for the communication from the first judgment-debtor, on the basis of the decree passed in O.S.No.8516 of 2008 dated 18.2.2009 and the order passed by the executing Court in E.P.No.1018 of 2009 dated 24.9.2009, when the bailiff came for executing the warrant and the decree against the judgment-debtors on 4.11.2009, only then the appellant came to know of the fraud played by both the decree-holders/respondents and the judgment-debtors, by concealing the material fact that there was an oral agreement between the first judgment-debtor and the appellant herein, wrongly obtained a decree which cannot be allowed to be executed. Since the collusion and the conspiracy played were apparent only with a view to dispossess him from the suit property, the decree would render the transaction void ab initio and the Courts below have failed to see that the decree was obtained in collusion by playing fraud, which cannot be allowed to stand. When the appellant never expected or thought of any foul play from the decree-holders/respondents till the date of visit of the bailiff to the premises and on further enquiry, the appellant came to know about the filing of the suit followed by the decree passed in O.S.No.8516 of 2008 on 18.2.2009 and the execution order passed in E.P.No.1018 of 2009 on 24.9.2009. Only from these proceedings, on coming to know about the oblique motive of the respondents, the appellant filed a detailed counter affidavit in E.A.No.8294 of 2009 making it clear that the respondents herein are not having any right in respect of the suit property, since the appellant was not even impleaded as a party to the suit. Therefore, the passing of the decree in O.S.No.8516 of 2008 behind his back cannot be made as binding on the appellant. Placing all these facts, the appellant further pleaded before the executing Court about his entitlement of filing a suit for specific performance on the basis of the oral agreement, but the executing Court, dismissing the objection raised by the appellant, has wrongly allowed E.A.No.8294 of 2009 by merely stating that no evidence was adduced to prove the oral agreement reached between the judgment-debtors and the appellant. When the appellant being an occupant of the suit property, he has got every right, title and possession to the suit property, therefore, he cannot be considered as a stranger to the suit property. As a matter of fact, when the appellant has been in possession of the suit property from May, 2003 and moreover when he was not even made a party to the suit, which was filed with an oblique motive in collusion with the judgment-debtors to deprive his lawful right, the executing Court ought to have dismissed the execution appeal, he pleaded.
4. Relying heavily on the Full Bench judgment of the Delhi High Court in Sarup Singh v. Daryodhan Singh reported in ILR (1972) I Delhi 759, the learned counsel for the appellant submitted that when the respondents filed the suit for mandatory injunction by paying the court fee of Rs.75.50 under Section 27(c) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 seeking a direction against the judgment-debtors to vacate and handover possession to the respondents, after obtaining the decree for mandatory injunction to vacate and handover possession of the suit property, they cannot approach the execution Court for delivery of possession of the property to the respondents. Adding further, he has stated that the respondents, having taken the risk of instituting the suit for injunction and paying the court fee on the market value of the property according to law and having obtained the decree for injunction, are entitled to execute the decree only in accordance with the procedure prescribed under Order XXI Rule 32 of the Code, however, they cannot be allowed to invoke the aid of the Court to issue a warrant for possession provided by Rule 35 of Order XXI. Since this aspect has been completely overlooked by both the Courts below, the decretal orders passed by the Courts below are without jurisdiction. Continuing his arguments, he has stated that the dispossession of the judgment-debtors without a direction for delivery of possession of the property to the decree-holders, does not authorise the use of powers under Rule 35. Again moving to the plea of fraud in obtaining the decree, he has stated that the suit for mandatory injunction in O.S.No.8516 of 2008 is not maintainable in law, for the reason that the decree has been obtained by fraud without impleading the appellant as one of the necessary parties. Learned counsel heavily relied upon one another judgment of the Apex Court in S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others, (1994) 1 SCC 1 to say that any judgment and decree obtained by fraud can be questioned even in collateral proceedings, inasmuch as the respondents, while making their claim in O.S.No.8516 of 2008, deliberately refused to aver that the appellant has been carrying on the business in the suit property from May, 2003 as an agreement holder having parted with a sum of Rs.2,43,000/-.
5. Once again, taking support from another judgment of the Delhi High Court in Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, he has argued that the collusive decree between the plaintiffs and the defendants cannot put to an end the legal right in favour of a third party, inasmuch as the decree for injunction is normally executable by detaining the judgment-debtor in civil prison or by attachment of his property or both under Order XXI Rule 32(1). Since these two coercive measures would constitute a remedy to compel the judgment-debtor to obey the decree or order of the Court, the issue of warrant for delivery of possession in execution of the decree for mandatory injunction is not justified either by Order XXI Rule 35 or Section 51(e) of the Code. It has been held in the said case that since the decree-holder sought a decree for injunction instead of a decree for possession, he has to face its legal consequences and when he can have the decree executed only in accordance with the provisions of law governing the execution of decrees, for injunction, he cannot ask for execution of a larger relief when the decree for small relief was granted.
6. Opposing the above contentions, Mr.R.Murali, the learned counsel for the respondents/decree-holders submitted that the suit property covered in Flat No.G-1, Subiksha Apartments at New Door No.15, Old Door No.86-A, Vellalar Street, Kodambakkam, Chennai 600 024 was purchased by a registered sale deed dated 2.2.2007 for a valid sale consideration from the judgment-debtors. However, after the property was purchased, the judgment-debtors evaded to vacate from the suit property, which compelled the respondents to file the suit for mandatory injunction directing the judgment-debtors to vacate from the suit property and to handover the same to the respondents. The said suit was decreed on 18.2.2009. Pursuant thereto, E.P.No.1018 of 2009 was filed and an order of delivery was passed by the executing Court on 24.9.2009. On the basis of the order, the bailiff went to execute the warrant. But the judgment-debtors wrongly prevented the bailiff. In view of the obstruction created by the judgment-debtors, the respondents obtained the order of delivery with police protection. On the basis of the delivery order, the senior bailiff of the Court went to take delivery of the property on 4.11.2009. But one Mr.G.G.Bharathidasan, the appellant herein, claiming himself as the occupant of the suit property, obstructed the execution of the delivery warrant by the officials. Since the appellant being a stranger to the suit property, colluding with the judgment-debtors, once again attempted to defeat the execution of the decree. Moreover, when the appellant is bound to establish that he has been in possession and enjoyment of the suit property from the year 2003 in the capacity of an agreement holder, he has not filed any document to show that he paid a sum of Rs.2,43,000/ to M/s Nest Tours and Travels Private Limited/judgment-debtors and there was no document to show that the appellant had paid a sum of Rs.1 lakh as pleaded by him in the year 2003 and thereupon the possession was handed over to him in June, 2003. The executing Court, keeping in view the absence of any such documentary evidence, rightly held that the contention of the appellant that he paid a sum of Rs.1 lakh in June, 2003 and a sum of Rs.1,43,000/- at a later date, was not sustainable. Except the oral evidence of the appellant, he has not placed any material to prove the alleged oral agreement. That apart, he has not examined any other witness to support the oral agreement between them. Besides, the appellant has not disclosed the witnesses who were present during the alleged oral sale agreement. When the appellant has miserably failed to prove that the decree in O.S.No.8516 of 2008 was obtained by fraud to deprive his legal right in the suit property and he has not even chosen to file a suit for specific performance against the judgment-debtors by paying the proper court fee, he cannot press his case under Section 53-A of the Transfer of Property Act, 1882. Heavily relying upon Section 53-A of the Transfer of Property Act, the learned counsel for the respondents submitted that it is a well settled legal position that in the case of an oral agreement of sale, any defence taken under Section 53-A of the Transfer of Property Act is not available to a party, who alleges to be in possession of the property. The appellant, who claims to be in physical possession of the suit property on the basis of an oral agreement entered with the judgment-debtors for purchase of the property, is not entitled to take any shelter, when he has not fulfilled any one of the following conditions, namely, (i) a contract to transfer immovable property; (ii) the transfer should be for consideration; (iii) the contract must be in writing; (iv) it should be signed by or on behalf of the transferor; (v) the terms of the contract can be ascertained with reasonable certainty from the writing; (vi) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; (vii) such taking of or continuance in possession should be in part performance of the contract; (viii) the transferee should do some act in furtherance of the contract; and (ix) he should have performed, or be willing to perform, his part of the contract. In support of his arguments, he has also relied upon the judgment of the Apex Court in the case of FGP Limited v. Saleh Hooseini Doctor and another, (2009) 10 SCC 223.
7. While answering the contention raised by the learned counsel for the appellant that the respondents herein, having filed the suit for mandatory injunction to quit and deliver vacant possession by paying the Court fee under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, cannot ask for a larger relief of delivery of possession, the learned counsel for the respondents submitted that the question of whether the decree has become incapable of execution or not is a question that may at best be raised by either of the parties to the suit or by the judgment-debtor, but certainly not by the appellant/obstructor, who is a stranger to the litigation. Meeting one another contention of the appellant on the question whether the decree has become incapable of execution, since the respondents have not filed the suit by paying the requisite court fee for the decree of delivery of possession, they cannot ask for a larger relief when they have got a decree in their hands for mandatory injunction to quit and deliver vacant possession, taking reliance on the judgment of the Gujarat High Court in the case of Kesarben Dhulaji Prajapati v. Amarsingh Baldev Singh Chauhan, (1996) 1 GCD 55, the learned counsel for the respondents argued that both the Courts below have held against the appellant that he has absolutely no interest or title in the suit property, since he has entered the litigation forcibly by offering obstruction to the execution of the warrant for possession, therefore, such a person cannot be permitted in law or in facts to raise the question of executability of the decree, for, the appellant is found not to have any locus to question the possession warrant, for the simple reason that the law has been well settled that such person cannot even indirectly question the executability of the decree in question.
8. Again arguing on the right of an obstructionist as an opponent in the application under Order XXI Rule 97 of the Civil Procedure Code, the learned counsel for the respondents submitted that the appellant's only right is to protect his possession by showing the legitimate, legal and better right than the respondents/decree-holders. Concluding his arguments, it was contended that the appellant, having knowledge of the decree obtained by the respondents from the date of visit of the bailiff on 17.9.2009 or at least from 4.11.2009, should have filed a suit for specific performance against the judgment-debtors within three years from the date of such knowledge. Having failed to do so by paying the proper court fee, now the appellant cannot file a suit also against the judgment-debtors in view of the expiry of three years time. Therefore, both on law and facts, he cannot question the pleading or the relief prayed for by the respondents. Considering these significant aspects, both the Courts below, having seen that the appellant was neither having title nor a tenant by a registered sale agreement, rightly found that the respondents herein have got a better right and title to the suit property, negativing the case of the appellant. Therefore, the objection raised by the appellant is not legally valid, for yet another reason that when the decree obtained by the respondents is valid and has become final, the executing Court cannot refuse to execute the same in letter and spirit. On this basis, he prayed for confirming the impugned orders by dismissing the second appeal.
9. Heard the learned counsel for the parties.
10. In the aforementioned facts and circumstances, this Court framed the following substantial questions of law and additional substantial questions of law in the second appeal:-
(a) Whether the decree obtained by suppression of fact or collusively could be executable against a person who was not made as a party to the suit, when he is in possession of the suit property on the basis of oral agreement?
(b) Whether the judgment and decree obtained by the decree holders is not by employing fraud in the suit and the same as such not to be treated as non est and nullity in the eye of law?
(c) Whether the suit as framed is maintainable in law and the decree obtained thereby is executable as against the appellant who is not a party to the suit?
(d) Whether the plaintiffs having obtained the decree for mandatory injunction can execute the decree under Order 21 Rule 35 of CPC and apply for removal of obstructor under Order 21 Rule 97 of CPC?
(e) Whether the orders of removal of the obstructor by the Courts below are valid in the absence of specific finding under Order 21 Rule 98 of CPC that the appellant was acting at the instigation or on behalf of the judgment debtors?
11. While adverting to the first substantial question of law whether the decree obtained by suppression of fact or collusively would be executable against a person who was not made as a party to the suit, when he is in possession of the suit property on the basis of oral agreement, it must be mentioned that the respondents/decree-holders, having entered into an agreement of sale in respect of the suit property with the judgment-debtors for a sale consideration of Rs.7 lakhs, purchased the same under a registered sale deed dated 2.2.2007 bearing Document No.341 of 2007. The judgment-debtors, after appointing the second respondent as their power of attorney by a registered power deed dated 4.12.2006, executed the above mentioned sale deed in favour of the first respondent on the said date viz., 2.2.2007, with the result, the first respondent became the absolute owner of the suit property. At the time of executing the sale deed, the judgment-debtors sought leave of the respondents to occupy the schedule mentioned property for one month from 2.2.2007, as they had to look for alternative place for shifting the furniture and utensils which were kept by them in the schedule mentioned property. Considering the smooth relationship between the respondents and the judgment-debtors, the first respondent granted licence to the judgment-debtors to occupy the schedule property for one month from 2.2.2007. However, after the expiry of one month on 1.3.2007, when the judgment-debtors neglected to comply with the same, the suit was filed praying for a decree of mandatory injunction against them to vacate and handover possession of the suit property along with costs. The trial Court decreed the same on 18.2.2009. Even after the decree, when the vacant possession was not delivered, E.P.No.1018 of 2009 was filed by the respondents and the executing Court ordered the delivery of possession on 24.9.2009. On the basis of the order of delivery, when the senior bailiff went to execute the warrant, the judgment-debtors prevented the bailiff. In view of that, the respondents obtained an order of delivery with police protection in E.A.No.8294 of 2009. On the basis of the order of delivery, the senior bailiff of the Court went to take delivery of the property on 16.9.2009. Although the staff of the judgment-debtors were present, however, the judgment-debtors were absent. When the bailiff, after explaining the order of delivery, asked the judgment-debtors' men present therein to vacate and handover vacant possession, it was refused. Therefore, the bailiff had to once again visit on the next day on 17.9.2009. Again the judgment-debtors were not there, however, their men refused to vacate.
12. In view of the repeated refusal by the judgment-debtors, the respondents, after obtaining the delivery order with police protection, visited the schedule mentioned property on 4.11.2009, Mr.G.G.Bharathidasan, the appellant/objector, claiming himself as the occupant of the property for six years, obstructed the execution of the delivery warrant. Thereafter, he filed a detailed counter affidavit in the E.A.No.8294 of 2009 by taking a peculiar stand that he was an oral agreement holder and paid a sum of Rs.2,43,000/- to discharge the loan borrowed by the judgment-debtors from REPCO bank with regard to the suit property. But without making the appellant as a party, both the judgment-debtors and the respondents, colluding with each other, created a sham and nominal sale deed as if they had sold/purchased the suit property. Therefore, the decree obtained behind the appellant is not binding on him. While answering the said contention, the executing Court rightly came to the conclusion that there was absolutely no document to show that the appellant had paid a sum of Rs.2,43,000/- to the judgment-debtors. Again, while giving an answer to the plea of fraud, the first appellate Court, after considering the proof affidavit filed by R.W.1, clearly held that except Ex.R6, the appellant/obstructor has not filed any document to show that he had paid Rs.2,43,000/- to M/s Nest Tours and Travels Private Limited. Inasmuch as both the Courts below have further found that Ex.R6 is the receipt for payment of Rs.58,000/- to REPCO Home Finance Limited in the year 2006, however, it was found that there was no document to show that the appellant paid a sum of Rs.1 lakh in the year 2003 and possession was handed over to him in June, 2003. On this basis, the Courts below have answered that the contention of the appellant that he paid a sum of Rs.1 lakh in June, 2003 and Rs.1,43,000/- at a later date which was unsustainable. Moreover, the appellant has not even examined any other witnesses to support the alleged oral agreement between them. When the appellant has not adduced any evidence to show that he was the proprietor or partner of M/s Dasan Associates from the year 2003, it was found that the appellant has been in possession and enjoyment of the suit property only from the year 2006. However, the appellant, having accepted that he was not a tenant in the suit property, has not taken any steps to enforce the alleged sale agreement, therefore, he cannot plead that he has been in lawful possession of the suit property in the capacity of sale agreement holder. In the light of the above findings, when both the Courts below have found that there was no suppression of fact or collusion between the judgment debtors and the respondents, the first substantial question of law is answered against the appellant.
13. Coming to the second substantial question of law whether the decree has been obtained by the respondents by playing fraud, the first appellate Court in paragraph-20 of the judgment, after a detailed consideration of the evidence of R.W.2 and R.W.3 along with Exs.R14 to R17, rightly came to the conclusion that the appellant has miserably failed to prove that the decree in O.S.No.8516 of 2008 was obtained by fraud to defeat the legal rights of the appellant in the suit property. Therefore, the argument advanced by the learned counsel for the appellant that there was no substantial issue framed on the plea of fraud, is far from acceptance, for one another additional reason that fraud is essentially a matter of evidence which could be proved as a fact by direct evidence. Since there has been a finding of fact on the issue of fraud by the first appellate Court, the same cannot be considered as a substantial question of law, accordingly, the same is also answered against the appellant.
14. Coming to the third substantial question of law whether the suit as framed is maintainable in law and the decree obtained is executable as against the appellant who is not a party to the suit, being connected to the fourth substantial question of law viz., whether the respondents having obtained the decree for mandatory injunction can execute the decree under Order XXI Rule 35 of CPC and thereupon apply for removal of obstructor under Order XXI Rule 97 of CPC, it is better to refer to the relevant provisions of the Code, as follows:-
''Order XXI - Execution of Decrees and Orders R35. Decree for immovable property.--(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
R97. 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 in 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 adjudicate upon the application in accordance with the provisions herein contained.''
15. Learned counsel for the appellant, heavily relying upon the Full Bench judgment of the Delhi High Court in Sarup Singh's case reported in ILR (1972) I Delhi 759, contended that when a party who had filed the suit for lesser relief, after obtaining the decree, cannot ask for a larger relief before the executing Court, for the reason that the respondents on the basis of the sale deed dated 2.2.2007, had filed the suit for mandatory injunction to direct the judgment-debtors to vacate and handover possession of the suit schedule property to the first respondent herein by paying the court fee of Rs.75.50 under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, however, by filing an application before the executing Court, he has sought for a larger relief without paying the court fee under Section 27, for, cleverly the respondents converted the 'suit for injunction' into a 'suit for delivery of possession', because sub-rule (5) of Rule 32 cannot come to the aid of the decree-holders to obtain eviction of the judgment-debtors. To find an answer, it is more appropriate to extract the relevant portions of the Full Bench judgment of the Hon'ble Delhi High Court as follows:-
''The next question for consideration is whether, as urged by the respondent, a warrant for possession can specifically be issued under Rule 35 in aid of obtaining compliance with the decree for mandatory injunction. The opening words of Rule 35 are ''Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, ......, by removing any person bound by the decree who refuses to vacate the property.'' Sub-rule (3) of Rule 35 further makes provision for removing or breaking open any lock, bolt or door and performing other acts necessary for putting the decree-holder in possession. The decree passed in this case is plainly not for delivery of possession, nor has the decree-holder been adjudged as entitled to receive the possession and as such the provisions of Rule 35 of Order XXI are not attracted. The form of the decree for possession as well as the form of warrant of possession respectively prescribed in Form 23 of Appendix D and Form 11 of Appendix E unmistakably show that the decree must direct the defendant to put the plaintiff in possession of the property and then the warrant which is issued to the bailiff of the Court, directs him to put the plaintiff in possession of the property in dispute by removing the defendant-judgment-debtor who may refuse to vacate the same. They further illustrate that Rule 35 is wholly inapplicable for the purpose of executing a decree for injunction which is directed against the person of the judgment-debtor and appeals to his will and volition. The ocunsel for the respondent has submitted that although the decree in this case is not for delivery of possession to the decree-holder, part of the powers conferred under Rule 35 to dispossess the judgment-debtor may be exercised by the Court and then after removal of the judgment-debtor, the property may be left unattended, leaving it to the decree-holder to get into its occupation if he can. The submission is far-fetched and no provision of the Code of Civil Procedure justifies such a step. Ordinarily, the Court has no jurisdiction to dispossess a person and leave the property in the vacuum and it exercises powers of enforcing dispossession only to put some other person whom the Court so adjudges to be entitled to be in possession and not otherwise.
As observed by the High Court of Calcutta in Hem Chandra Naskar and another v. Narendra Nath Bose and others, AIR 1934 Calcutta 402(1) and by the High Court of Allahabad in Nawab Singh v. Mithu Lal and others, AIR 1935 Allahabad 480, a decree for mandatory injunction as well as for preventive injunction are to be executed in accordance with Rule 32 of Order XXI of the Code. We are not impressed by the vehement submission of the counsel for the respondent that the decree which had been obtained by him in this case has become useless or inexecutable. In fact, where a party is content to seek a decree for injunction rather than for delivery of possession in a suit property framed for the purpose, he has to face its logical consequences and he can have the decree executed only in accordance with the provisions of law governing execution of decree for injunction and he cannot employ the argument of frustration of his object existing behind his suit to obtain a relief from the Court which was not envisaged by the suit and not granted by the Court. It is not open to a party to claim the use of the machinery of the execution department of the Court to seek any further or other relief for fulfilment of his object which is not permitted by law. We, therefore, hold that a decree for injunction granted in this case is to be executed by the Court below in the manner provided by sub-rules (1) and (3) of Rule 32 of Order XXI of the Code and not by issue of a warrant for delivery of possession in accordance with Rule 35 and the impugned order of the execution Court below is without jurisdiction.
Accordingly, the revision is allowed and the impugned order of the Court for issue of a warrant for delivery of possession is set aside.''
16. It is true that the Full Bench of the Hon'ble Delhi High Court has held in favour of a lawful tenant against whom a decree for injunction was granted, holding that he cannot be dispossessed by ordering delivery of possession. But how far the above ruling can be applied to the facts of the present case can be seen from the answer given by our High Court in the case of Munusamy and 4 others v. Vengadachalam and 10 others, 2011-1-L.W.647. In the said case, when a question was sought to be raised by an obstructor that the decree holder has no title to 'A' portion of the suit property and therefore, he is not entitled to execute the decree in respect of 'A' portion and in their application under Order XXI Rule 97 of the Code of Civil Procedure, the Court ought to have decided the title of the plaintiff-decree-holder to the suit property, the learned Judge, after reading Order XXI Rule 97 and 101, held that the above provisions make it clear that at the time when a decree is sought to be executed by the decree holder if any person obstructs to the execution of the decree in obtaining possession of the property, the decree holder may make an application to the court complaining of such resistance or obstruction and as per Order XXI Rule 97(2), as such, when such an application is made, the Court shall proceed to adjudicate the application and as per Order XXI Rule 101 of the Code of Civil Procedure Code, all the questions including the question relating to right, title or interest in the property arising between the parties to the proceedings shall be determined by the Court dealing with the application and not by a separate suit. However, when an obstructor objects to the delivery of possession by the decree holder claiming independent right, the court has to find out whether the obstructor has got any legal right to be in possession of the property and in such event, if the court comes to the conclusion that he has got every right to be in possession of the property, then, the court can pass orders to that effect dismissing the application filed by the decree holder, however, the court cannot go into the legality of the decree passed in favour of the decree holder at the instance of the obstructor. On this basis, it was held that the question of law raised that a decree obtained by the decree-holder is nullity and he has no right or title to 'A' portion of the property and that question has to be gone into execution proceedings cannot be accepted, for the reason that such question cannot be raised by the obstructor, as he has no locus at all. In the case on hand, the appellant is an obstructor, however, claiming right over the property on the basis of an oral agreement said to have been reached between him and the judgment-debtors in the year 2003. Unfortunately, the obstructor, who claims to be in possession on the basis of the oral agreement, has not even made a mention either in his pleading before the executing Court that on what date the so called oral agreement for purchase of the suit property was reached between him and the judgment-debtors.
17. Secondly, in this case, as rightly pleaded by the learned counsel for the respondents, had there been an oral agreement in the year 2003, pursuant to which he has been put in possession of the suit property, at least after he got the knowledge of refusal by the judgment-debtors to execute the sale deed either from 4.11.2009 or at least from the date of filing his counter affidavit before the executing Court on 22.3.2010, he could have filed a suit for specific performance within three years against the judgment-debtors. Ironically, even after the expiry of the deadline of limitation, till now, he has not come forward to file the suit and therefore, he cannot question the decree from being executed as an obstructor.
18. Thirdly, the obstructor before the Full Bench of the Delhi High Court was a lawful tenant and therefore, it was held therein that a decree for injunction must be executed in the manner provided by Rule 32 and the issue of a warrant for delivery of possession in execution of a decree for injunction is not justified either by Rule 35 of Order XXI or clause (e) of Section 51. But, in the present case, the appellant being an obstructor, has miserably failed to prove his title, interest and lawful possession, therefore, the said judgment cannot be made applicable to an inter-meddler, hence, such a person cannot be permitted to raise the question of executability of the decree. In this context, it is more apt to refer to the judgment of the Gujarat High Court in Kesarben Dhulaji Prajapathi's case, 1996-1-GCD 55, wherein it has been held as follows:-
''20. This question may also be considered as ''what is the right of the obstructionist, as an opponent in an application under Order 21 Rule 97 CPC?'' to my mind the extent of the right is commensurate with the status of the obstructionist, viz., as an opponent in the application of the decree-holder under Order 21 Rule 97. His only right is a right to protect his possession by showing a legitimate, legal and better right to possession than the decree-holder. Secondly, the only objection such an opponent can raise or which would be permissible would be such as would enable him to protect his possession, and such objection must have a direct nexus with the possession sought to be protected. Such a right would not extend to challenging the decree under execution, on any ground whatsoever, at least in proceedings under Order 21, Rule 97. In other words, the obstructionist is confined to his locus and status of the opponent in the application under Order 21, Rule 97 and to take a view that he could raise any and all objections (including an objection which goes beyond the decree or an objection which hits the decree on merits), would extend the locus and status of the obstructionist to that of a judgment-debtor. Clearly, in my view, this is not permissible, inasmuch as the entire scheme of Order 21, when seen as a whole, and the scheme of Rules 97 to 101, when read collectively, clearly demarcate and keep apart the locus and status of the obstructionist as against the judgment-debtor. To permit such contentions to be raised would merge the interest of the obstructionist with that of the judgment-debtor. In my view, this is not permitted by the general scheme of the aforesaid provisions.''
19. The above ruling clearly shows that an obstructor can have only an objection to protect his possession and such objection must have a direct nexus with the possession sought to be protected, however, such right would not be to challenge the decree under execution on any ground whatsoever. In the light of the above ruling, if the case of the appellant is viewed, he has neither proved his valid possession nor able to establish any agreement against the judgment-debtors by filing a suit for specific performance within three years from the date of refusal. In fact, since the appellant has been vehemently opposing the decree on the ground that he has got an oral contract to transfer the immovable property, he cannot press his case to support his lawful possession, since neither of the ingredients mentioned under Section 53-A of the Transfer of Property Act, 1882 has been fulfilled. While delineating the scope of Section 53-A of the Transfer of Property Act, 1882, the Apex Court in the case of FGP Limited v. Saleh Hooseini Doctor and another, (2009) 10 SCC 223, has held under what circumstances the doctrine of part performance under Section 53-A of the Transfer of Property Act, 1882 can be invoked, as follows:-
''24. Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are:
(1) a contract to transfer immovable property;
(2) the transfer should be for consideration;
(3) the contract must be in writing;
(4) it should be signed by or on behalf of the transferor;
(5) the terms of the contract can be ascertained with reasonable certainty from the writing;
(6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;
(7) such taking of or continuance in possession should be in part performance of the contract;
(8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.'' If the case of the appellant is applied to the above test, there must be a contract in writing, which is admittedly missing. Secondly, it should be signed by or on behalf of the transferor, which is also missing. The terms of the contract can be ascertained with reasonable certainty from the writing. Sadly that is also missing. The transferee should do some act in furtherance of the contract or he should have performed or willing to perform his part of the contract. But, ironically, as per the alleged oral agreement in the year 2003, the appellant has totally remained silent and it is only after the bailiff approached the suit property on 4.11.2009 for executing the decree, he has merely filed an objection before the executing Court without even filing a suit for specific performance asking the judgment-debtors to comply with their part of the contract. Therefore, in the facts and circumstances, the doctrine of part performance under Section 53-A of the Transfer of Property Act also cannot be invoked by an obstructor/appellant. Accordingly, the fourth substantial question of law is also answered against the appellant.
20. In view of the above findings and the answers given against the appellant, the impugned order of removal directing the appellant/obstructor to handover vacant possession is perfectly in order, hence, the last substantial question of law also must fail.
21. Further, what this Court cannot by oversight ignore to point out in this case is that the decree passed in O.S.No.8516 of 2008 on 18.2.2009 in favour of the respondents for mandatory injunction directing the judgment-debtors to vacate and deliver possession had become final. While so, it is trite law that the executing Court cannot go behind the decree, rather it is obliged to execute the same. Even, if the second appeal is allowed by setting aside the order passed by the executing Court, still, the decree holds good and valid. In view of all the above reasons, when the obstructor has failed to prove his title and ownership, the second appeal must necessarily fail.
22. In fine, the second appeal fails and it is dismissed. Consequently, M.P.No.1 of 2014 is also dismissed. No costs.
Index : yes 13.08.2014
Issue copy on 19.8.2014
ss
To
1. The VII Additional Judge
City Civil Court
Chennai
2. The X Assistant Judge
City Civil Court
Chennai
T.RAJA, J.
ss
Judgment in
S.A.No.709 of 2014
13.08.2014