Madras High Court
Bangarammal vs M. Balamani And Anr. on 27 July, 1994
Equivalent citations: (1994)2MLJ443
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. One Salai Sivaprakasam, minor represented by his father and natural guardian R. Murugamalai, who is the obstructor is the appellant in the, above applications. The 1st respondent is the decree-holder and respondents 2 and 3 are the judgment-debtors in C.S. No. 145 of 1985. The obstructor has filed an application in Appln. No. 3314 of 1994 to set aside the order dated 13.6.1994 in E.P. No. 49 of the 1992 in C.S. No. 145 of 1985 made by the learned Master of this Court. Application No. 3315 of 1994 is again filed by the obstructor against the very same respondents for stay of the operation of the order dated 13.6.1994 in E.P.No.49 of 1992.
2. It will not be out of place to mention that the 3rd respondent herein R. Murugamalai is the father of the minor appellant herein. An affidavit has been filed by the said 3rd respondent R. Murugamalai in the above two applications. The decree-holder after obtaining the decree in the above suit filed execution proceedings. The judgment-debtors filed Application No. 2221 of 1992 for a declaration that the decree is a nullity and the E.P. is liable to be dismissed. To this application the decree-holder filed a counter. The learned Master in his detailed order dated 30.4.1993 rejected the objections raised by the judgment-debtors and answered the points in favour of the decree-holder holding that the decree-holder is entitled to execute the decree for delivery of possession and the decree is not liable to be set aside. The learned Master has categorically found that there is no dispute or confusion regarding the identity of the properly, and that there is no discrepancy in the description and that the discrepancy pointed out that the property in respect of which decree was granted is not the properly for which the execution is levied. Consequently he rejected the objection raised on behalf of the judgment-debtors and held that the decree is executable. Thus it has been held that the property in question is capable of being identified, located and delivered.
3. The decree-holder also filed Application Nos. 2664 of 1994 and 2665 of 1994 in E.P. No. 49 of 1992 to direct the bailiff to break open the locks of the suit premises at the time of executing the warrant and to give police protection since the judgment-debtors who were bound by the decree created a law and order situation.
4. A common counter-affidavit has been filed by R. Murugamalai, the 3rd respondent in Application No. 3314of 1994 (one of the judgment-debtor) In the affidavit also refers to a letter of obstruction to the bailiffs stating that his minor son Salai Sivaprakasam has not only claimed a vested right in the property bearing Door No. 9, N.N. Garden 6th Street, Old Washermanpet, Madras-21, but has also filed a suit in C.S. 1437 of 1992 to declare his right and the same is pending on the file of this Court. It is also stated that the obstructions raised by Salai Sivaprakasam claiming independent right, title and interest in their property stands unchallenged and that the decree-holder has not filed any application for removal of obstruction and to execute the warrant after removing the obstructor. Hence he contended that no warrant can be executed without proper adjudication of the claim made by the obstructor Salai Sivaprakasam.
5. R. Murugamalai, father of the minor obstructor has also filed objection in E.P. No. 49 of 1992 stating that in the absence of an application for removal of obstruction as contemplated and notice to the obstructor and without following the proceedings laid down under O.21, Rule 97, C.P.C. the present E.P. No. 49 of 1992 in C.S. 145 of 1985 cannot be allowed for dispossessing the obstructor. The learned Master by his order dated 13.6.1994 allowed Application Nos. 2664 and 2665 of 1994 filed by the decree-holder. The learned Master has held that the executing court has no jurisdiction to start an enquiry mo mom oral the instance of the obslructor other than the decree-holder under Order 21, Rule 97 and an enquiry at the instanccof the 3rd party in possession was contemplated only under Order 21, Rule 100, C.P.C. after he was dispossessed and not before it. Therefore, the remedy available to the 3rd party is to institute an independent suit for declaration of his title. Therefore, the learned Master held that no application can be filed under Order 21, Rule 97 at the instance of an obstructor in anticipation of his possession in execution of decree for eviction to which he is not a party. The learned Master has also given the aid of police because of the resistance and obstructions caused by the judgment-debtors. Thus claiming interest by the judgment-debtor and the obstructor at the time when the decree-holder seeks possession, amount to resistance and obstructions. Therefore, the judgment-debtor who is bound by the decree and the obstructor who is not a party to the suit, cannot resist the claim of the decree-holder. The said order of the Master is the subject matter of challenge in the above two applications byway of appeal to this Court.
6. I have heard Mr. K. Chandrasekaran for the appellant and Mr. K.T. Palpandian for the decree-holder. Here again both the appeals were by the minor through his father and natural guardian R. Murugamalai, the 3rd respondent and one of the judgment-debtors. According to Mr. K. Chandrasekaran, the order of the learned Master in ordering execution petition without giving notice to the obstructor is illegal and against the procedure laid down in Order 21, Rule 97, C.P.C. and in the absence of application for removal of obstruction as contemplated and without following the mandatory provisions of Order 21, Rule 97, C.P.C. the order of the learned Master dated 13.6.1994 ordering the Execution Petition No. 49 of 1992 in C.S. No. 145 of 1985 is illegal and has to be set aside.
7. In support of his contention Mr.K.Chandrasekaran cited two decisions reported in Tahera Soyeed v. M. Shanmugam and Ramachandra Verma v. Mannial Singhi A.I.R. 1983 Sikkini 7 is a judgment rendered by a learned single Judge of the said court wherein the learned Judge observed that the executing court could not reject the application as not maintainable without holding the person to be bound by the decree and that the executing court should have stayed its hands in the matter leaving it to the decree-holder to proceed under Rule 97 or in such other manner as he might have thought fit.
8. Tahera Sayeed v. M. Shanmugam , is again a judgment rendered by a learned single Judge of Andhra Pradesh High Court wherein Andhra Pradesh High Court held that Application under Order 21, Rule 97 is maintainable filed by a third party not bound by the decree. The court says that when 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 21, 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 to adjudicate it under Rule 98 or Rule 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. Usha Jain v. Manmohan Bajaj , Full Bench decision was cited before the learned single Judge of Andhra Pradesh High Court. However, the learned single Judge observed that the conclusion arrived at by the Full Bench of Madhya Pradesh High Court, does not salvage the issue in question. In fact, the Full Bench decision was dissented from by the learned single Judge.
9. I am unable to share the view of the learned single Judge of the Andhra Pradesh High Court and also the learned Single Judge of Sikkim High Court. I prefer to follow the Full Bench of the Madhya Pradesh High Court reported in Usha Jain v. Manmohan Bajaj . In that case, the petitioners obtained a decree for eviction of their tenant and the sub-tenant. In the execution proceedings, the brother of the subtenant filed an application under O.21, Rule 97 read with Rules 35 and 101, C.P.C. as amended by C.P.C. (Amendment) Act, 1976 and claimed full investigation of his right by which he claims to be in possession of the accommodation. Relying on the decision of the Division Bench in Bhagwat Namyan Dwivedi v. Kasturi D/o Romdoyal , also claimed that the executing court is bound to stay its hands until conclusion of the investigation of his right. The decree-holders opposed the application claiming that the brother of the sub-tenant had no right to file the application to the executing court under Order 21, Rule 97, C.P.C. and to require an investigation into his right on the basis of that application. The executing court rejected this objection of the decree-holder being bound by the decision in case. The decree-holders feeling aggrieved by the executing court's order rejecting their objection to the maintainability of the application under Order 21, Rule 97, C.P.C. at the instance of the respondent No. 1 brother of the sub-tenant preferred a revision to the Madhya Pradesh Pradesh High Court. When the revision came up for hearing before a single Judge of the said court it was contended on behalf of the petitioners that no application lies at the instance of a third party under Rule 97 or Order 21, C.P.C. and that Bhagwat Narayanan's case, was wrongly decided. It was also contended that the hardship caused to the decree-holders as a result of the decision in Bhagwat Narayan's case, has increased after the extensive amendment made in Order 21 of the Code of Civil Procedure (Amendment) Act, 1976 as a result of which a full trial into the right and title by the executing court itself is provided for and not a summary enquiry alone, which was envisaged earlier on an application under Order 21, Rule 97, Civil Procedure Code. For these reasons stated in the order of reference, the learned single Judge has made this reference for reconsidering the correctness of the decision in Bhagwat Narayan's case. The matter was referred to the Full Bench of Madhya Pradesh High Court. J.S. Varma, J. (as he then was) speaking for the Bench observed that "a third party resisting theexecution had no locusstandi to claim investigation by the executing court into his alleged right or title prior to his dispossession as Order 21, Civil Procedure Code did not contemplate any such enquiry at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21, C.P.C. the remedy of such third party under Order 21 was only after dispossession under Order 21, Rule 100, C.P.C. Order 21, Rule 97 being merely an enabling provision for the benefit of the decree-holder/auction-purchaser, it necessarily followed from this view that the decree-holder/auction-purchaser could not be compelled indirectly to apply under Order 21, Rule 97 if that could not be done directly". The Full Bench have also quoted extensively from the decision of the Madhya Pradesh High Court in Ramgulam v. Mahendra Kumar 1972 M.P.L.J. 254, in coming to the conclusion referred to by me supra. In the concluding portion of the judgment, the Full Bench has observed as follows:
We have already shown that none of the reasons given by the Division Bench in Bhagwat Narayan's case , withstands scrutiny and that the view taken therein on assumptions made which do not exist. With respect, we are of the opinion that the view taken by the Division Bench in Bhagwat Narayan's case, cannot be upheld as correct. We are also of the opinion that the correct view which is also in line with the settled view of this Court as also the view of the other High Courts is contained in Ramgulam v. Mahendra Kumar 1972 M.P.L.J. 254, for the same reason the view taken in Supreme General Films Exchange (Pvt.) Limited v. Yuvraj Govind Singh 1972 M.P.L.J. 857, that no fresh warrant could be issued on the auction purchaser's application under Order 21, Rule 95, except under Rule 98 after investigation, treating that application as one under Rule 97, is also incorrect. We have already shown that the remedy to apply for a fresh warrant without making an application under Order 21, Rule 97, C.P.C. is available to the decree-holder/auction-purchaser. Accordingly, we answer the reference by saying that the decision of the Division Bench in Bhagwat Narayan v. Kasturi , is not correct, while the correct view is expressed in Ramgulam v. Mahendra Kumar 1972 M.P.L.J. 254, which we hereby affirm.
In view of the above Full Bench judgment of Madhya Pradesh High Court' I am of the view that the contention raised by one of the judgment-debtors on behalf of his minor son/obstructor cannot at all be countenanced.
10. My attention was also drawn to the order of the Division Bench in C.M.P. No. 11458 of 1991 in O.S.A. No. l64ofl991 filed by the judgment-debtors. It is useful in this context to refer to the order of the Division Bench:
Thus, according to the trial court the plaintiff/respondent is entitled to possession and that the defendants in collusion have kept her out of possession of the property. In view of the above finding, it is not a case in which it can be prima facie claimed by the appellants that they are entitled to possession. However, it is found that in some portion the defendants/appellants have been residing, from which portion they have to be evicted. On principles of commute sometimes courts have exception and grant stay of execution of a decree for ejectment from a residential house. But then, it is not known, since no such affidavit is filed before us, in which portion of the house the defendants/appellants are residing for, it is admitted before us that in most part of the building, tenants reside and thus only constructive possession will be required to be transferred. We are thus satisfied that restitution alone may be the proper remedy in the event of the appellants succeeding without at this stage in any manner interfering with the decree by an interim order. This petition is dismissed.
The judgment-debtors filed a furtherappeal to the Supreme Court of India with Special Leave to Appeal Civil No. 14906 of 1991 against the order in C.M.P. No. 11458 of 1991 in O.S.A. No. 164 of 1991. The Bench of the Hon'ble Supreme Court has observed as follows:
Issue notice on the Special Leave Petition as well as on application for stay. The petitioner shall pay a sum of Rs. 1,62,750 by-way of a crossed Demand Draft drawn on a Nationalised Bank payable at Madras to the respondent Smt. K. Bangarammal within six weeks from to-day. The petitioner shall also file an affidavit within six weeks regarding the identity of the specific portion of the land on which the petitioner claims to reside. The petitioner shall also ensure that the respondent-plaintiff is enabled to obtain constructive possession of the tenanted portion. In the meanwhile, pending notice there will be interim stay for a period of six weeks of the order under appeal.
11. The obstructor/minor Salai Sivaprakasam has also filed C.S. No. 1437 of 1992 through his father and Guardian R. Murugamalai, to declare the plaintiffs title to the suit schedule property as a legal heir and as a successor in title and for permanent injunction and other reliefs, claiming certain right as a legal heir in the possession and enjoyment of the suit property as a matter of right enjoyed by his mother. The judgment and decree of this Court and the pendency of the appeal and the dismissal of the said petition has also been referred to in the plaint. According to the minor if he is dispossessed he may not have chance to recover the properties from the 1st defendant (Bangarammal) plaintiff in C.S. No. 145 of 1985. I do not want to express any opinion on the plaint now filed by the minor Salai Sivaprakasam. Suffice it to state that the above two applications have been filed only with an ulterior motive to drag on the proceedings endlessly. In my opinion the primary object for which the court exits is to do justice between the parties. The approach of the court should be pragmatic. Considered from this perspective, I have no hesitation to hold that the judgment-debtors are bound by the decree of this Court and that these two applications have absolutely no merits. I am also of the view that the executing court has no jurisdiction to start art enquiry suo motu or at the instance of a third party other than the decree-holder/auction-purchaser under Order 21, Rule 97. I am of the view that the third party resisting the execution had no locus standi to claim investigation by the executing court into his alleged right or title prior to his dispossession as Order 21, C.P.C. did not contemplate any such enquiry at his instance. Therefore the executing court is not bound to stay its hands. Hence both applications are dismissed. The order of the learned Master shall stand confirmed. The decree-holder is at liberty execute the decree with police protection.