Punjab-Haryana High Court
Jagroop Singh And Anr. vs Boria Khan And Ors. on 28 May, 2002
Equivalent citations: [2003]263ITR391(P&H)
JUDGMENT M.M. Kumar, J.
1. This is a revision petition directed against the order dated 10.4.2001 passed by the District Judge, Sangrur rejecting the preliminary objection of the auction-purchaser-petitioners concerning maintainability of the appeal against the order dated 16.8.1999 of the Civil Judge (Sr. Division), Sangrur. The Civil Judge has dismissed the objections of the objector-respondent No. 1-Boria Khan by observing that he has failed to show and establish his position and therefore the objection petition filed under Order 21, Rule 97 of the Code of Civil Procedure (for brevity, the Code) was held to be not maintainable and the auction-purchaser-petitioners were held bona fide purchasers of the disputed land without any notice of the right of the objectors. The Civil Judge has considered the objection petition filed under Order 21, Rule 97 of the Code in considerable detail by framing as many as eight issues, recording evidence and then giving his findings.
2. Aggrieved by the order dated 16.8.1999 passed by the Civil Judge, objector-respondent No. l-Boria Khan filed an appeal before the District Judge, Sangrur. A preliminary objection was raised on the maintainability of the appeal and the same has been rejected by the district Judge by recording the following order:-
"I have heard the Ld. counsel for the parties and find that the Hon'ble Supreme Court has observed in Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (supra), as under:-
"(1) If a decree is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35 then the decree holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties enjoined by Order XXI Rule 97 Sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication, if it is found that the resistance of obstruction was occasioned without just cause by the judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 Sub-rule (2) and the decree holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI Rule 101 and no separate suit would lie against such order, meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication, then as enjoined by Order XXI Rule 98 Sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order XXI Rule 99 to be put in possession of the property or if his application is found to be substance less it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other Order XXI Rule 98 Sub-rule (1) would be deemed to be a decree as laid down by Order XXI Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would be against such orders as clearly enjoined by Order XXI Rule 101.
In Babulal v. Raj Kumar and Ors., 1996(11) Civil Court Cases Supreme Court 213, an objection petition was filed by a stranger on the ground that he was not a party to the decree and decreed was not binding upon him. It has been held that under Order 21 Rule 97 CPC, in objection, filed by a stranger, it is not necessary that the said objector should be first dispossessed and then file objection under Order 21 Rule 99 CPC. An adjudication was required to be conducted under Order 21 Rule 98 before removal of the obstruction caused by the objector. The procedure, given in Order 21 was complete in itself and the Court is bound to decide objections, if any, in respect of those person, who were not parties to the decree. An order passed on such an objection will be subject to some conditions as to the appeal, as if it was a decree. The preposition in the present case is fully covered by the ratio of cases of the Hon'ble Supreme Court, above referred. Therefore, relying upon the judgments of the Hon'ble Supreme Court, it has to be held that the appeal is maintainable and the preliminary objection is over-ruled."
3. The auction-purchaser petitioners have filed the present revision petition maintaining the objection that no appeal before the District Judge is competent and only a revision under Section 115 of the Code could be filed. When notice of motion was issued, this Court has stayed further proceedings before the learned District Judge vide order dated 16.5.2001.
4. Brief facts of the case as unfolded in the revision petition are that on 27.7.1989, an agreement to sell was executed between decree-holder respondent No. 3 Mukhtiar Kaur and decree-holder-respondent No. 4 Sarabjit Kaur and Gurjit Singh judgment-debt-or-respondent No. 2 for selling the land measuring 25 bighas 11 biswas. A decree was passed for a sum of Rs. 1,14,000/- in favour of decree-holder respondents 3 and 4 and in execution of that decree, land measuring 25 bighas 11 biswas of the judgment-debtor-re-
spondent No. 2 was attached. In a sale held on 2.9.1996 for execution of the decree, the land was sold to the auction-purchaser-petitioners 1 and 2 and auction-purchaser respondent No. 5. On the two applications of the auction purchasers, a sale certificate dated 1.3.1997 was also issued.
5. Boria Khan objector-respondent No. 1 filed an objection petition under Order 21, Rule 97 of the Code setting up his case that there is an agreement to sell dated 12.5.1998 entered into by judgment-debtor-respondent No. 2 Gurjit Singh where he had agreed to sell his land to objector-respondent No. 1 out of the land which is subject matter of the auction. He claimed 10 kanals 7 marlas of land for which agreement to sell was entered into on 12.5.1998. According to the objector-respondent No. 1, a civil suit was filed by him seeking specific performance of the agreement dated 12.5.1998 and the same was decreed on 2.12.1995. On 21.2.1997 a sate deed was executed while executing the decree dated 2.12.1995 through a Local Commissioner. He has further alleged that judgment-debtor-respondent No. 2 in connivance with some others executed an agreement to sell on 27.7.1989 and got a suit filed against himself on 12.3.1990. In that suit, he suffered a decree on 16.5.1990 for a sum of Rs. 1,14,000/- just to defeat the decree passed in favour of objector-respondent No. 1 on 16.5.1995. He further claimed that the land measuring 10 Kanals 7 marlas was already in his possession as a mortgagee and he became absolute owner when the sale deed on 21.2.1997 was executed in satisfaction of the decree dated 2.12.1997. The objection petition after contest was dismissed on the ground that the objector-respondent No. 1 was not in possession and hence his objection petition under Order 21 Rule 97 of the Code was held to be not maintainable by the Civil Judge, Sangrur vide his order dated 16.8.1999. Aggrieved against that order he filed an appeal being Civil Appeal No. 62 dated 23.2.2000. At the commencement of the arguments of the appeal, the auction-purchaser-respondent No. 5 raised a preliminary objection about the maintainability of the appeal which has been rejected vide order dated 10.4.2001 as extracted above.
6. 1 have heard Shri G.S. Chadha, learned counsel for the auction-purchaser-petitioners, Shri H.R. Kapil, learned counsel for objector-respondent No. 1 and Shri V.K. Garg, learned counsel for decree-holder-respondents No. 3 and 4 and have perused the record with their assistance.
7. The first argument of Shri G.S. Chadha, learned counsel appearing for the auction-purchaser-petitioners is that the objection petition filed by the objector-respondent No. 1 cannot be treated as objection petition under Order 21, Rules 97,98.99 and 101 of the Code. The objector-respondent No. 1 has failed to show his possession over the suit land. The khasra girdawaries of the suit land establish that the auction-purchaser-petitioners have been owners in possession. Earlier khasra girdawaries were in favour of mortgagee Mukhtiar Singh who took the land on mortgage from judgment-debtor-respondent Gurjit Singh vide registered mortgage deed dated 27.5.1987 (Ex.DW/2). On payment of Rs. 20,000/- to Mukhtiar Singh mortgagee by the auction-purchaser-petitioner, mortgagee Mukhtiar Singh handed over the possession to the auction purchaser-petitioners. Thereafter, mutation of redemption of land has been sanctioned in favour of auction-purchaser-petitioners and entries to that effect have been made in the jamaban-dis. Therefore, it is claimed that the order passed by the learned District Judge suffers from patent illegality and no appeal is competent before him. It is further claimed that against he order dismissing the objections filed by objector respondent No. 1 vide order dated 16.8.1999, only a revision could be filed and the objection raised by the auction-purchaser-petitioners should have been sustained. The second argument raised by the learned counsel for auction-purchaser-petitioner is that the nature of proceedings under Order 21, Rule 100 and 101 of the Code being summary in nature, the Court should confine itself to the question of possession and refrain from determining the question of title. He has further submitted that the auction-purchaser-petitioners have filed an application for issuance of sale certificate and not for issuance of warrants of possession.
Therefore, the objection petition under Order 21, Rule 97 of the Code could not be filed and it was wholly pre-mature.
8. Referring to the provisions of Order 21, Rules 89, 90, 92 and 94 of the Code, the learned counsel has argued that sale to the auction purchaser petitioners has become absolute. He has also made a pointed reference to the provisions of Sub-rule (4) of Rule 92 of Order 21 of the Code to submit that where a third party raises an objection to the title of the judgment-debtor, then the remedy would be to file a separate suit and the objection under Order 21, Rule 97 of the Code are specifically barred. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Suresh Kumar v. Niranjan Singh, (2000-3)126 P.L.R. 527 wherein it is held that when the objections filed under Order 21, Rule 97 of the Code are dismissed, then the proper remedy of the objector is to file a revision petition before this Court and such an order would be challengeable under Order 21, Rule 103 of the Code. He has also placed reliance on another judgment of Karnakata High Court in the case of Jesaraj Ghasimal Betal v. Ahammad Hussein and Ors., A.I.R. 1987 Karnataka 25 for the same proposition.
9. On the other hand, learned counsel for objector-respondent No. 1 has argued that the land measuring 10 kanals 7 marlas was in fact in possession of Mohan Lal and Des Raj as usufructory in mortgage who further mortgaged their rights on 9.5.1998. The judgment-debtor-respondent No. 2 executed an agreement to sell on 12.5.1988 with objector-respondent No. 1 admitting his rights in favour of Mohan Lal and Des Raj. Later on on 27.7.1989 judgment-debtor-respondent No. 2 executed another agreement with one Jagjit Singh and a suit for specific performance was got instituted on 14.8.1989. Seopal Singh husband of Sarabjit Kaur decree-holder-respondent No. 4 filed a suit on 12.3.1990 and a money decree was passed on 16.5.1990 for a sum of Rs. 1,14,000/-. However, the suit of the objector-respondent No. 1 was decreed for specific performance of the agreement dated 12.5.1988 in respect of land measuring 10 Kanals 7 marlas. On 2.12.1995 on the basis of the decree, sale deed was executed by the executing Court in favour of objector-respondent No. 1.
10. Shri H.R. Kapil, learned counsel for objector-respondent No. 1 has vehemently argued that in the suit filed by the objector-respondent No. 1 against judgment-debtor-respondent No. 2, it has been specifically admitted by judgment-debtor-respondent No. 2 that Boria Khan has been in possession of the land. He has argued that once judgment-debtor-respondent No. 2 has admitted the possession, then the capacity of the auction-purchaser-petitioners cannot be better than the judgment-debtor-respondent No. 2. For this proposition, he has placed reliance on a judgment of this Court in the case of Narin-der Kumar and Anr. v. Rajinder Singh and Ors., 1993(3) Shimla law Journal 2458. He has further argued that there is no allegation as to how objector-respondent No. 1 Boria Khan went out of possession.
11. On the question that appeal under Order 21, Rule 103 of the Code would be maintainable, the learned counsel has argued that all questions with regards to right, title or interest of the objectors are required to be adjudicated under Order 21, Rule 98 of the Code and any order passed under that provision would be deemed to be a decree under Order 21. Rule 103 of the Code for the purposes of appeal. For this proposition, he placed reliance on a judgment of this court in the case of Babulal v. Raj Kumar and Ors., A.I.R. 1996 S.C. 2050 and also another judgment of the Supreme Court in the case of Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal and Anr., A.I.R. 1997 S.C. 856. He has also placed reliance on another judgment of the Supreme Court in N.S.S. Narayana Sarma and Ors. v. Goldstone Exports (P) Ltd. and Ors., (2002) 1 S.C.C. 662. For the same proposition, he has also relied on a judgment of the Supreme Court in Shreenath and Anr. v. Rajesh and Ors., A.I.R. 1998 S.C. 1827 and also another judgment in the case of Nooruddin v. Dr. X.L Anand 1995(1) Civil Court Cases 572.
12. I have thoughtfully considered the respective submissions by learned counsel for the parties and am of the view that the revision petition deserves to be dismissed.
13. The provisions of Order 21 Rule 103 of the Code expressly provide that where an application has been adjudicated upon under Rule 98 or Rule 100 of Order 21 of the Code then such orders on adjudication have the same force as if it were a decree. It further provides that such orders are subject to the condition of appeal. Therefore, the argument raised by the learned counsel for the auction-purchaser-petitioner that the objection filed by the objector-respondent No. 1 cannot be treated as objection petition under Order 21 Rule 97, 98 and 99 cannot be accepted merely because the objector-petitioner has failed to establish his possession because the language of Order 21 Rule 97 of the Code does not show that such objection necessarily is required to prove his possession.
14. The other argument that no appeal is competent against the order dated 16.8.1989 passed by the executing Court before the District Judge, Sangrur also lacks merit because of the specific provisions of Order 21 Rule 103 of the Code. Equally fur-tile is the argument that the execution proceedings are summary in nature and should be confined only to the question of possession and no detenuination on question of title should be made because the Supreme Court has rejected this argument in Brahmdeo Choudhary's case (supra) as well as in N.S.S. Narayana Sarma's case (supra). The observations of their lordships in Brahmdeo Choudhary's case (supra) reads as under:-
"A conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35 then the decree holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties enjoined by Order XXI Rule 97 Sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 Sub-rule (2) and the decree holdep would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI Rule 98 Sub-rule (1) CPC the executing Court can direct the stranger applicant under Order XXI Rule 99 to be put in possession of the property or if his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI Rule 9 Sub-rule(1) would be deemed to be a decree as laid down by order XXI Rule 103. and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI Rule 101."
15. Similar view has been expressed in N.S.S. Narayana Sarma's case (supra) which in turn relies upon Silverline Forum (P) Ltd. v. Rajiv Trust? (1998-2)119 P.L.R. 519 (S.C.) and Shreenath v. Rajesh,l A.I.R. 1998 S.C. 1827. The views expressed by their Lordships in N.S.S. Narayana Sarma's case (supra) reads as under:-
"From the provisions of those Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the "executing Court to deal with all issues" relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes year and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the afore mentioned Rules particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove as far as possible technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing Court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the cases."
16. When the principles laid down in the above mentioned judgments are applied to the facts of the case it is abundantly clear that the appeal filed before this District Judge against the order dated 16.8.1999 passed by the Civil Judge would be maintainable. Reliance placed on various judgments by the learned counsel for respondent No. 1 is well founded and therefore the revision petition is liable to be dismissed.
17. For the reasons recorded above, the revision petition fails and the same is dismissed. In view of the fact that proceedings before the District Judge for deciding the appeal on merits were stayed vide order of this Court dated 16.5.2001, the parties through their counsel are directed to appear before the learned District Judge, Sangrur on 25.7.2002.