Madhya Pradesh High Court
Kailash Soni vs Smt. Usha Rathore on 31 October, 2018
1 SA-2547-2018
The High Court Of Madhya Pradesh
SA-2547-2018
(KAILASH SONI Vs SMT. USHA RATHORE)
2
Jabalpur, Dated : 31-10-2018
Shri Siddharth Gulatee, learned counsel for the appellants.
Shri D.K. Tripathi, learned counsel for the respondents.
Heard on admission.
This second appeal is directed against the judgment and decree dated 14/8/2018 passed in Execution Case No.10/2017, which got a stamp of approval in Regular Civil Appeal No.40-A/2018.
Briefly stated, Shri Gulartee, learned counsel appearing for the appellants fairly contended that the respondent/decree holder filed a Civil Suit No.94-A/2013, which was allowed by judgment and decree dated 31/7/2015. The said judgment and decree was unsuccessfully challenged till Supreme Court. The said judgment has attained finality between the parties inter se.
Shri Gulatee, learned counsel for the appellants submits that the real brothers of present appellants are judgment debtors in the said case. Present appellants were not party in the said case. When execution proceedings were set in motion, they filed an application under Order 21 Rule 97 CPC by contending that appellants' grandfather acquired the property by sale-deed dated 27/9/1956. The appellants are in possession of the land and residing with their family since the lifetime of appellants' father. On the strength of this application, the adjudication had taken place by the Court and by order dated 14/8/2018 the application of appellants was rejected.
Criticizing this order, Shri Gulatee urged that the Court below has rejected the application solely on the ground that appellants have applied under Order 21 Rule 97 on the sole basis that they have filed a fresh Civil Suit before a Court of competent jurisdiction, whereas in addition to that ground, appellants had raised other grounds regarding their right of title and possession etc., but this aspect has not been gone into by the Execution Digitally signed by REENA H SHARMA Date: 01/11/2018 02:45:50 2 SA-2547-2018 Court.
Shri Gulatee urged that although the appellate Court had considered the sale-deed, did not take into consideration the sale-deed on the ground (i) the sale-deed is not properly stamped, (ii) the averments of the sale-deed show that the names of sons of purchaser were shown before the name of the purchaser.
The learned counsel appearing for the appellants on the strength of 1996 (3) SCC 154 Babulal vs. Rajkumar, 1998(4)SCC 543 Shrinath and another vs. Rajesh and others urged that the application under Order 21 Rule 97 CPC is tenable even at the behest of a stranger. If such application is filed, it needs adjudication as a regular suit. The Court below have failed to act in consonance of the principle laid in the said two cases. No other point is pressed by learned counsel for the appellants.
I have heard him at length.
The application under Order 21 Rule 97 C.P.C. was considered and adjudicated upon by the Court below. The appellants have claimed title on the basis of a sale-deed dated 27/9/1956. As noticed, the lower appellate Court rejected the contention on the ground that this document is not properly stamped and secondly it does not inspire confidence because name of sons of purchaser is mentioned before the name of purchaser. In addition, in my view, a careful reading of this sale-deed shows that there exists no description of the property in the said document. Pertinently, the house number, khasra number or any other necessary description on the strength of which identity of property can be ascertained is missing in the said sale-deed. For this reason also, sale-deed does not inspire any confidence. In 2004(2) MPLJ 317 Hamid Khan Ansari vs. Lelabai this Court considered Order 21 Rule 97 C.P.C. and opined that as a thumb rule in every case where such an application is filed recording of evidence is not necessary. This Court in a recent judgment 2018 SCC Online M.P. 252 (Padam Singh vs. Radheylal) again considered the judgment of Hamid Khan Ansari (supra) Digitally signed by REENA H SHARMA Date: 01/11/2018 02:45:50 3 SA-2547-2018 and judgment of Supreme Court in Bramhadev Choudhary AIR 1997 SC
856. This Court opined that the adjudication mentioned under Order 21 Rule 97 CPC need not necessarily involve a detailed enquiry or recording of evidence. The Court can make adjudication on admitted facts or even on the averments made by the resistor.
After considering the judgments of Madras High Court, this Court opined as under :-
"15. The present case if examined on as per the principles laid down by Supreme Court in aforesaid cases, which are followed in the case of Hamid Khan Ansari (supra), it will be clear that in the facts and circumstances of the present case, the Courts below have adjudicated the application under Order 21 Rule 97 of the CPC. In the peculiar facts and circumstances of this case and more particularly on account of the averments of the parties, no further enquiry or recording of evidence was required. Thus, substantial question No. 1 must be answered in negative by holding that as a straight-jacket formula, it cannot be said that in every case where such obstruction is filed, the Executing Court is bound to conduct a detailed enquiry and permit the obstructor to lead evidence. The said course of action depends on the nature of pleadings and material produced by the obstructor. The answer of substantial question No. 2 depends on answer to the first question. In view of answer to the first question, the second question needs to be answered in negative. At the cost of repetition, it is clear that obstructor No. 3 & 4 were sons of judgment debtor. None of the obstructor could file any material to show that they were in lawful possession of the suit land. If they were in possession, they should have pleaded the manner and method by which they came into possession. During these 35 years when they were allegedly in possession and constructed houses, they must have paid corporation tax, water tax, electricity bill, property tax and other statutory payments based on possession of the property. No such documents have been filed and, therefore, in the light of judgment of Hamid Khan Ansari (supra), in my view, the Courts below have not committed any error of law in rejecting the application filed under Order 21 Rule 97 of CPC. In AIR 2004 KAR. NOC 293 (C. Some Gowda v. C. Ranga Rao), the High Court opined that a person raising objection must show some prim a-facie material in support of his objection. In (2005) 1 MadLJ 191 (G. Ganesan v. J. Surendran), the Court opined that a petition as an obstructor without any document or material to show that he was in actual possession of premises cannot be filed. It is further held that except for a bare statement that they are in possession of the suit property, no other material was filed to show their actual possession prima-facie. Such petitions are not maintainable at all. 1 6 . In AIR 2004 Madras 249 (R. Devadass v . Subordinate Judge, Ponneri), the Court opined as under:-
"œ10. A blind and stereo types method of receiving and activating every application without knowing as to whether it is bona fide or mala fide is an unhealthy trend and before an Digitally signed by REENA H SHARMA Date: 01/11/2018 02:45:50 4 SA-2547-2018 application is entertained, especially at the state of execution of a hardly won decree, the Executing Court has got an inherent duty to search for the availability of the bona fide adjudicatable material."
(Emphasis supplied) 1 7 . It is noteworthy that Madras High Court in R. Devadass (supra) considered the judgments of Supreme Court in the case of Brahmdeo Choudhary and Tanzeem-e-Sufia (supra) and held that in absence of showing prima-facie adjudicatable material in their favour by obstructor, it is to be held that the objection is only to prevent the execution of the decree. Malafide methods are being adopted by the revision petitioner. In absence of prima-facie adjudicatable matter, the petition was dismissed."
As noticed above, the sale-deed on the strength of which title and possession is claimed does not inspire any confidence at all. In absence of any description or identity of property, the appellants even prima facie failed to establish that the property in question is same, which is subject matter of execution. The appellants have proposed the substantial question No.(A). This question stood answered in the judgment of this Court in Padam Singh wherein it was clearly held that as a straight jacket formula, it can not be said that in every case recording of evidence is necessary. Similarly proposed substantial question No.(B) is not available to the appellants because the said document does not inspire any confidence at all. In absence of any substantial questions being involved, the admission is declined.
The appeal is dismissed.
It is made clear that the observation made herein above for the purpose of decision on an application filed under Order 21 Rule 97 CPC will not come in the way of appellants in adjudication of the civil suit filed by the appellants.
(SUJOY PAUL) JUDGE rv Digitally signed by REENA H SHARMA Date: 01/11/2018 02:45:50