Punjab-Haryana High Court
Inder Singh vs Piara Singh And Another on 1 September, 1992
Equivalent citations: AIR1993P&H83, (1993)103PLR241, AIR 1993 PUNJAB AND HARYANA 83, (1993) 2 BANKCAS 576, 1993 (1) REVLR 197, 1993 (1) LJR 41, 1993 HRR 97, 1993 REVLR 1 197, 1993 PUNJ LJ 17, (1993) CIVILCOURTC 629, (1993) 1 RRR 620, (1992) 2 RENTLR 618, (1993) 1 LANDLR 527, (1993) 1 PUN LR 241, (1994) 2 BANKLJ 65, (1993) 1 CURLJ(CCR) 171
ORDER A.S. Nehra, J.
1. This revision petition under S. 115 of the Code of Civil Procedure has been referred by a learned single Judge because, in his opinion, the following question deserves to be decided by a Division Bench :--
"Whether the executing Court is bound to consider the application of a person, in possession, where he was not a party to the decree, before he is dispossessed?"
2. Facts material for this revision are that Inder Singh petitioner obtained a decree on September 7, 1982, for specific performance of an agreement of sale dated June 25, 1979, against Anup Singh. In terms of this decree, sale deed Exhibit DH 1 was later executed on February 3, 1983. The sale consideration of Rs. 59,500/- was concededly received by Piara Singh, an attorney of judgment-debtor Anup Singh. As a result of the execution of the sale deed Exhibit DH I, the petitioner decree-holder launched the present execution proceedings to secure the physical possession of the land in question. The delivery of possession of this land was obstructed and objected to by Piara Singh, who, as indicated earlier, had actually received the sale consideration, on the ground that the said land was in his possession along with his two other brothers as mortgagees. He, as a matter of fact, filed an objection petition to that effect under Order 21, Rule 35 read with S. 151, Civil Procedure Code. These objections of his have been upheld by the executing court vide impugned order dated February 16, 1985. Only symbolic possession of the land in question is ordered to be delivered to the petitioner in terms of Rule 36 of Order 21 as the same was found to be in occupation of persons, who were not bound by the decree. The decree-holder impugns this order.
3. The sole contention raised by the learned counsel for the petitioner is that in view of an earlier Division Bench decision of this Court in Harijan Wood Workers v. Maya Wati, 1984 Current Law Journal 212 : (AIR 1985 P& H 181), objector Piara Singh had no locus standi to maintain the objection petition without surrendering the possession of the land in question as envisaged by Rule 99 of Order 21, Civil Procedure Code. What has been ruled in this judgment is "that any person other than the judgment debtor cannot file an objection petition under Rule 97 on the ground that he is not liable to ejectment in execution of decree obtained by the decree-holder against the judgment-debtor."
4. The learned counsel for the respondents has argued that it is true that Rule 97 ex facie entitles a decree-holder or a purchaser of the property sold in execution of a decree to make an application to the Court complaining about the resistance or obstruction being caused to him in securing the possession of the suit land but that does not mean that a person.
who is not bound by the decree sought to be executed, is not entitled to protect his right and interest without first surrendering the possession of that immovable property.
5. The learned counsel for the respondents has further submitted in support of his argument that the provisions of Order 21 Rule 35 were not brought to the notice of the Division Bench of this Court in Harijan Wood Workers v. Maya Wad (supra) and, therefore, Division Bench decision is not relevant. Order 21 Rule 35 and 97 read as under :--
"35. 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.
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 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."
6. The learned counsel for the respondents has contended that if a decree-holder contends that the person who refuses to vacate is bound by the decree, he has to satisfy the Court about it. In other words, he must be either judgment-debtor, or a person who may be held in law as bound by the decree. In support of his argument, he has relied upon Division Bench decision in Bhagwant Narayan Dwivedi v. Kasturi, AIR 1974 MP 26, and single Bench decisions in United Bank of India Ltd. v. J. C. Mitra, AIR 1962 Assam 150, Mahabir Pershad v. M/s Delhi Traders Private Ltd., AIR 1977 Delhi 45 and Ram Chandra Verma v. Manmal Singhi, AIR 1983 Sikkim 1.
7. After hearing the learned counsel for the parties, we are of the opinion that neither there is any rationale nor any justification to hold that a person in possession of a property who establishes that he is not bound by the decree sought to be executed, is not entitled to protect his right, i.e. the retention of his possession through the process of Court. As a matter of fact, as per Order 21 Rule 35, Civil Procedure Code, the possession of the immovable property covered by a decree can be delivered to the decree-holder by removing a person bound by the decree only. In other words, a person who establishes that he is not bound by decree passed against any other person, cannot possibly be dispossessed in execution of that decree. This aspect of the matter has clearly been analysed in Ram Chandra Verma v. Manmal Singhi, Bhagwant Narayan Dwivedi v. Kasturi and Mahabir Pershad v. M/s. Delhi Traders Private Ltd. (supra), and we are in respectful agreement with the same. Therefore, we hold that neither there is any rationale nor there is any justification to hold that a person in possession of a property who establishes that he is not bound by the decree sought to be executed, is not entitled to protect his right, i.e., the retention of his possession through the process of Court. As a matter of fact, as per Order 21 Rule 35, Civil Procedure Code, the possession of the immovable property covered by a decree can be delivered to the decree-holder by removing a person bound by the decree only. The executing court is bound to consider the application of a person, in possession, where he was not a party to the decree, before he is dispossessed.
8. Now coming to the merits of the case, the petitioner obtained a decree for specific performance against Anup Singh and in terms of this decree, a sale deed Ex. DH1 was executed on February 3, 1983. The sale consideration was received by Piara Singh, the attorney of the judgment-debtor Anup Singh. As a result of the execution of the sale deed, Ex. DH 1, the petitioner decree-holder launched the present execution proceedings to secure the physical possession of the land in question. The delivery of the possession of this land was obstructed and objected to by Piara Singh, who, as indicated earlier, had actually received the sale consideration as attorney of the judgment-debt or Anup Singh, OD the ground that the said land was in his possession along with his two brothers as mortgagees. Piara Singh filed an objection petition to that effect under Order 21, Rule 35 read with S. 151, Civil Procedure Code. These objections have been upheld by the executing court on February 16, 1985 and only symbolic possession of the land in question is ordered to be delivered to the petitioner in terms of Order 21 Rule 36 as the same was found to be in possession of persons who were not bound by the decree.
9. If the judgment-debtor did not mention the factum of mortgage in the agreement to sell or concealed the said fact during the proceedings throughout, then under law, the objector who is the mortgagee, cannot be penalised. The actual possession can be taken from the objector only when the property is got redeemed from him and not otherwise. Piara Singh and his brothers have been shown as mortgagees with possession of the property in question and the mortgage deeds are prior to the sale deed Ex. DH I which is dated February 3, 1983. Therefore, under S.48 of the Transfer of Property Act, 1929, the subsequent rights created by the judgment-debtor in favour of the decree-holder have no effect on the prior rights of the mortgagees. In other words, the rights created in favour of the mortgagees will prevail over the subsequent rights of a decree-holder. All the mortgagees have not acted as agents of Anup Singh. The mere act of Piara Singh, Objector, to act as an agent of judgment-debtor Anup Singh, in his capacity as attorney to execute the sale-deed on behalf of the judgment-debtor in favour of the decree-holder, cannot defeat the legal rights of the other co-mortgagees. Every mortgagee has his personal right to retain the possession till the mortgage is redeemed under law.
10. For the reasons mentioned above, it is, therefore, held that the objector is one of the mortgagees with possession. The effect of not getting the property in question redeemed is that decree-holder cannot get physical possession of the property. He can only get symbolic possession. The order passed by the Additional Senior Sub Judge, Nawanshahar dated 16-2-1985, is upheld and the revision petition is dismissed with costs which are assessed at Rs.2000/-.
11. Petition dismissed.