Andhra HC (Pre-Telangana)
Pagidi Padmavathi And Anr. vs Kanala Nagaraju And Three Ors. on 15 July, 2003
Equivalent citations: 2004(1)ALT413
ORDER D.S.R. Varma, J.
1. This matter is set down under the caption "For Being mentioned" for today i.e., 16-7-2003 by the Court suo motu to elaborate the reasoning given by this Court on 2-7-2003, while dismissing this Civil Revision Petition, at the admission stage on hearing the learned counsel on either side, in view of the Judgments of the Supreme Court, which are being discussed in this order.
2. This Civil Revision Petition is filed challenging the order and decree dated 17-3-2003 passed by the Senior Civil Judge, Nandyal, dismissing the application in E.A.No. 295 of 2001 in E.A.No. 155 of 2001 in E.P.No. 244 of 1998 in O.S.No. 128 of 1996 filed under Order 21, Rules 95, 96 and 97 of the Code of Civil Procedure seeking to recall the delivery warrant.
3. The claim of the petitioners is that they are the tenants of one Palagiri Pedda Vegi Subbaiah and the said property was brought to sale treating the same as the property belonging to the fourth respondent. Admittedly, the said Subbaiah was not a party either to the suit or to the execution proceedings.
4. At this juncture, it is necessary to refer to the relevant provisions of Order 21, Rules 95, 96 and 97 of the Code of Civil Procedure.
5. Rule 95 deals with a situation where the immovable property sold is in the occupancy of the Judgment debtor or of some person on his behalf or of some person claiming under a title created by the Judgment debtor.
6. Rule 96 deals with the rights of a tenant who is in occupation of the property, which was brought to sale in the execution proceedings. It also deals with the procedure to be adopted in such cases where the tenant is in possession of the property.
7. Rule 97 deals with a situation where there is resistance by the Judgment debtor or any obstruction created to the delivery of possession to the decree holder.
8. In this regard, it is necessary to refer to Order 21, Rule 97 of the Code of Civil Procedure, which is as follows:--
"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."
9. A reading of the above provisions would make it clear that if an auction purchaser was resisted by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and Sub-section (2) envisages an enquiry or adjudication upon such application.
10. Now the question that falls for consideration before this Court is as to whether the petitioner herein, who, undisputedly, is a third party either not being a Judgment debtor or a person claiming through the Judgment debtor, can resist the auction purchaser by way of making an application seeking to recall the warrant of delivery.
11. In this context, a three-Judge Bench of the Apex Court in Silverline Forum Private Limited v. Rajiv Trust , following the Judgment of another three-Judge Bench of the Apex Court in Bhanwar Lal v. Satyanarain held as follows-
"It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
12. In another Judgment in Shreenath v. Rajesh , the Apex Court held as follows:
The expression "any person" under Sub-clause (1) of Rule 97 is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21, Rule 97. Thus by the use of the words 'any person', it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger. Under the Law as it stood prior to 1976 amendment as well as after the amendment the right of a tenant or any person claiming right on his own of the property in case he resists, his objection underOrder 21, Rule 97, has to be decided by the Executing Court itself. Rule 100 of the old law and Rule 99 of 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. In other words, when such person is in possession the adjudication is to be under Rule 97 and in case dispossessed, adjudication is to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding underOrder 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 decreeholder."
13. In the above two judgments of the Supreme Court, including the judgment in Bhanwar Lal's case (supra 3), the position as regard the rights of the person who resisted dispossession is clear. Such person need not necessarily be a person claiming through Judgment debtor or a party to the suit or Interlocutory Application. Such resistance can be offered even by a stranger who is not even a party to the proceedings at any stage. In other words, as held by the Supreme Court, even a stranger can offer resistance if he offers resistance claiming possession of the property by virtue of independent title.
14. Now the next question would be what should follow when such resistance is offered either by the Judgment debtor or a stranger to the proceedings. Again the answer would be found from Sub-rule (2) of Rule 97 of Order 21 of the Code of Civil Procedure. As already pointed out Sub-rule (2) of Rule 97 contemplates adjudication/enquiry. Again the question would be what kind of adjudication or the nature of adjudication should it be. This question was answered by the Apex Court in the Judgment referred to supra (1).
15. From the above, it is clear that the adjudication, envisaged in Sub-rule (2) of Rule 97 of Order XXI of the Code of Civil Procedure, need not necessarily be a full-fledged adjudication akin to Order XXI Rule 58 of the Code of Civil Procedure. It need not be a detailed enquiry by collection of evidence. However, it is made clear by their Lordships of the Apex Court in the above Judgments that if this Court is of the opinion that evidence is necessary, the parties may be directed to adduce evidence.
16. Coming to the present case, it is to be seen that the petitioners herein claim to be the tenants of one Subbaiah. The said Subbaiah is not a party to the suit proceedings or to the execution proceedings. But, still, as held by the Supreme Court in the above referred Judgments, the petitioners, though strangers to the proceedings, nor claiming their rights through judgment debtor, have the right to resist the dispossession by the auction purchaser.
17. The lower Court found that the petitioners did not file any document or even affidavits of third parties to show that they were residing in the suit schedule property for the last seven years. It also appears that the petitioners contended before the trial Court that the fourth respondent therein was not the owner at all and he had no right, title and possession of the property. The trial Court further found that fourth respondent did not raise any objection during the prior proceedings. It is the further contention of the petitioners that a third person by name Palagiri Peda Vegi Subbaiah leased out the property. Finally, the Trial Court came to the conclusion that the alleged leasing out of the property was not by the real owner of the property at all and accordingly recorded a finding that the petitioners have no right to obstruct delivery of possession of the property. The lower Court had further taken into account another factor i.e., first petitioner is no other than the wife of fourth respondent. The property was already sold in the Court auction in favour of first respondent herein and sale certificate was also issued and at that stage, the petitioners came forward by way of present execution application.
18. Apart from the above, taking into account various other reasons, the trial Court recorded that the petitioners have no right to offer resistance and directed delivery of possession to the auction purchaser.
19. A perusal of the impugned order goes to reveal that all these aspects have been considered in detail, which amounts to a satisfactory adjudication as contemplated under Sub-rule (2) of Rule 97, as held by the Apex Court in the Judgments referred to supra.
20. For all the fore-going reasons, I do not find any reason to interfere with the order passed by the trial Court. Accordingly, this revision petition is dismissed. No costs.
21. The learned counsel for the petitioners submit that he may be given liberty to avail any other remedy available under law. It is needless to observe that if the petitioners feel that there is any other remedy available under law, they may choose to do so.