Karnataka High Court
Jesaraj Ghasimal Betal vs Ahammad Hussein And Ors. on 17 July, 1986
Equivalent citations: AIR1987KANT75, ILR1986KAR2647, AIR 1987 KARNATAKA 75, ILR 1986 KANT 2647
ORDER
1. Both the advocates submitted that the reviser itself might be heard finally on merits. Accordingly, arguments are heard and the revision is disposed of finally.
2. This is a revision against the judgment and decree dt. 25-6-1986 passed by the Civil Judge, Gadag, in R.A. No. 30 of 1986, setting aside the order dt. 5-6-1986 passed by the Munsiff, Gadag, in Ex. C. 98 of 1986, rejecting I.A. 1 filed by respondents 1 and 2 under O. 21, R. 97 of the Civil P.C.
3. The present decree-holder, after a long drawn battle, obtained an order of eviction against respondent-3 Abdul Razak . Thereafter, the decree-holder, after the expiry of the time given to respondent 3. tenant to vacate, sued out execution in Execution Case No. 98 of 1986 for delivery of possession.
4. The executing Court made an order for the issue of warrant for delivery of possession. At that time, respondents 1 and 2 filed an application under O. 21, Rr. 97 and 98 of the Civil P.C. That application I.A. 1 filed by respondents 1 and 2 under O. 21, R. 97 of the Civil P.C. was objected to by the decree-holder.
5. The Munsiff Court i.e., the executing Court dismissed I.A. 1 holding that it was incompetent. The present respondents 1 and 2 approached the Civil Judge with R.A. 30 of 1986. The Civil Judge allowed the appeal and set aside the order passed by the Munsiff. The decree-holder, being dissatisfied with the judgment and decree of the Civil Judge, has come up with the present revision.
6. The lower appellate Court laid stress on the ruling reported in Arjun v. Zempanna Gangappa Sambanni, , in support of its view that the order passed on an application filed under O. 21, R. 97 to remove the obstruction offered would operate as a decree and that an appeal filed against the order rejecting the application filed under O. 2 1, R. 97 is competent and maintainable:
7. The present respondents 1 and 2 claim to have purchased one fourth share from the judgment-debtor and claim that the judgment-debtor had put them in possession of the property on 1-4-1986. Taking up this plea, they contended that they had a right to resist or obstruct the delivery of possession by the executing Court. Hence, they filed I.A. 1.
8. R. 97 of O. 21 of the Civil P.C. reads, as-
"(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." Therefore, the only persons, who can file an application under O. 21, R. 97 of the Civil P.C. are - (1) the holder of a decree for possession and (2) the purchaser of any such property sold in execution of a decree. No other person has got a right to file such an application. In this case I.A. 1 is filed by respondents 1 and 2, who claim to have purchased 1/4th share in the property and claim to have been put in possession of the property by judgment-debtor respondent No. 3 on 1-4-1986. Therefore, respondents 1 and 2 cannot be said to be the holders of the decree for possession, because they have not obtained the decree. Further, respondents 1 and 2 cannot be considered to be the purchasers of the property sold in execution of the decree, because admittedly they claim to have purchased the property by private arrangement. Therefore, respondents 1 and 2 do not fall within any one of the categories mentioned by R. 97 of O. 2 1, of the Civil P.C.
9. The decree-holder, no doubt filed objections to I.A. 1. A copy of the same was made available to me by the learned counsel Sri Narayana Rao. Ground No. 1 says that the said application I.A. 1 itself is not maintainable either in law or on facts. This ground only amounts to a plea raised by the decree-holder that I.A. 1 filed by respondents 1 and 2 under 0. 21, R. 97 of the Civil P.C. is not competent. However, the learned counsel Sri Narayana Rao drew my attention to ground No. 3, which reads as -
"The applicants have no right to obstruct the decree-holder in taking possession of the premises in dispute."
According to the learned counsel Sri Narayana Rao, this ground No. 3 amounted to an objection raised by the decree-holder resulting in a prayer for the removal of obstruction. Though the objections filed by the decree-holder nearly run into more than two pages, he has nowhere whispered that he wants the relief of removal of obstruction. Ground No. 3 is only an elucidation of ground No. 1 raised by him that I.A. 1am not maintainable either in law or on facts.
10. Then he relied on ground No.4 which says that even if the respondents have purchased 1/4th share in the disputed property, they cannot obstruct and they have absolutely no right to obstruct the decree-holder in taking possession of the property. This again is the reiteration of what is stated in ground Nos. 3 and 1. Even ground No. 4 does not even remotely suggest that the decree-holder had sought for the removal of the obstruction offered by the present respondents 1 and 2.
11. Then he drew my attention to ground No. 5, which reads, as-
"This Court being an Executing Court, has no jurisdiction to enter into the question, whether the applicants are the owners of 1/4th share in the said property, and this Court cannot investigate into that matter."
As already stated Byrne above, ground No. 5 raised by the decree-holder is nothing but an elucidation of ground No. l . Nowhere, he has sought for the removal of the obstruction caused by or said to be caused by respondents 1 and 2. What he has stated by filing this lengthy objections is that the application I.A. I am not competent. He has nowhere said either remotely or by implication or impliedly that the obstruction offered by respondents 1 and 2 should be removed. Therefore, these objections cannot be taken as resulting in a prayer for the removal of the obstructions.
12. I am well aware of the principle that if the objections raised by the decree-holder amount to a relief claimed by him for the removal of the obstruction, then those objections should be treated as an application by the decree-holder himself. But in this case, the objections filed by the decree-holder do not contain any such prayer. Therefore, the lower appellate Court committed an error in holding that the objections filed by the decreeholder to I.A. 1 can be treated as an application O. 21, R. 97 of the Civil P.C.
13. The lower appellate Court has relied on R.S. Maddim Setty and another v. A.R.A. Basith, (1970) 1 Mys LJ 419. On page 423, it has been stated as -
"Further, the petitioners having offered to adduce evidence and sought the adjudcation on the merits of their claims, cannot now be allowed to contend that the adjudcation should not have been made without an application under O. 21, R. 97 CPC, by the decree-holder. The petitioners would not have had any grievance if the adjudication was in their favour. They, cannot, therefore, make a grievance now as the adjudication has been against them. The trial Court has as a matter of fact found that the petitioners have obstructed delivery of possession not in their own right and that they are doing so only at the instance of the judgment-debtor and to see that the decree-holder does not get the fruit of his decree in the order passed in the HRC proceedings against the judgment-debtor 'who is their own kith and kin'. In this connection, Sri Ranger invited my attention to a decision in Motamari Ramiah v. Kumari Malliah, . In this case, the petitioners were the decree-holders, third respondent was the sole judgment-debtor and respondents 1 and 2 who were not parties to the decree filed an objection petition purporting to be under O. 21, R. 97, C.P.C. It is observed in para 10 of the decision as follows:
"All the same, from the very wording of O. 21, R. 97, C.P.C., the Rule contemplates the petition being filed by the decree-holder 'complaining of resistance or of obstruction' and not by a third party. In this case, the ' fact remains that respondents 1 and 2 who were third parties to the decree filed an objection petition, that there was an enquiry on it and that an order has been passed. The question is as to what has to be done now regarding the order in particular, and whether it has to be set aside as prayed for by the learned counsel for the decree-holders.
This Court has further said on page 423, as -
"The result of the forgoing discussion may be summarized thus : Under O. 21, R. 97, C.P.C. only the decree-holder can file an application to the Court complaining of resistance or obstruction which can result in investigation by the Court and suitable orders. An obstructor, who is not a party to the decree under execution cannot approach the Court with an application to determine and safeguard his rights or to obtain an order in his favour under O. 21, R. 97 CPC or any other provision of law. If a third party files such an application, impleading the decree-holder it would be open to the decree-holder to contend that such an application does not lie, that the third party cannot ask for an enquiry in the matter or relief and to ask for an order in favour of himself (decree-holder). If he so contends, the application would have to be dismissed.
This Court has further said that-
"But if instead of raising such an objection he files a counter and takes part in the proceedings and if an order is passed in the proceedings, the latter would be valid and just as if the counter which he filed was an application filed by him under O. 21, R. 97 C.P.C. and as if the application which had been filed by the third party had been a counter filed by such third party ......."
14. As already stated above, the decreeholder has not participated in the proceedings as such. It is only regarding the competence of I.A. 1, he raised objections. Therefore, the objections filed by the decree-holder to I.A. 1 cannot be treated as an application by the decree-holder under R. 97 of O. 21, C.P.C. If there was any prayer in those objections resulting in the relief for removal of obstruction and if any fullfledged enquiry regarding the same had been held, it may not be open to the decree-holder to contend that his objections should not be taken as an application under R. 97 of O. 21, CPC. But in the present case, as already stated above, the only objection raised by the decree-holder is to the competence of I.A. 1 filed by respondents 1 and 2.
15. The Munsiff, as can be seen from the order, has not held any enquiry regarding the, obstruction. At the very threshold, the munsiff has dismissed I.A. 1 only on the ground that it is incompetent. Therefore, the lower appellate Court, in. my opinion, committed an error in treating the objections filed by the decree-holder as an application under R. 97 of O. 21, CPC. Further it committed an error an holding that the contentions raised in I.A. 1 were the objections to the relief under R. 97 of O. 21, C.P.C. Therefore, under these circumstances, the order passed by the lower appellate Court is unsustainable.
16. The learned counsel Sri Joshi urged that in the view expressed above, even the appeal to the Civil Judge was incompetent and that the revision was maintainable. On the other hand, Sri Narayana Rao contended that the appeal to the lower appellate Court was competent and that the present revision was competent. But in the view that I have taken, the appeal to the Civil Judge was incompetent, because the order passed by the Munsiff only held that the application I.A. 1 was not competent. When the appeal to the Civil Judge itself was incompetent, the present revision is competent.
17. Therefore, under these circumstances, the order passed by the lower appellate Court is set aside. The revision is allowed. The order passed by the Munsiff, dismissing I.A. 1, is restored. No costs.
18. The learned counsel Sri Narayana Rao submitted that in order to enable him to take the matter to the Supreme Court, the operation of this order be stayed for three weeks. The party should not be deprived of an opportunity to approach the highest Court in the land, whatever may be the merit of his case. Therefore, in order to satisfy his desire to approach the Supreme Court, I think that the interest of justice do demand that the operation of this order should be stayed till the end of Aug. 1986.
19. Revision allowed.