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Showing contexts for: obstruction application in Udyavara R. Acharya And Anr vs Mr. Jugal Kishore Sharda on 27 April, 2020Matching Fragments
(c) Execution Proceedings - WP No.5342 of 2018:
8. When the Owner wanted to execute the warrant of possession, a few occupants resisted his efforts. In fact, Jugal Kishor Sharda, the respondent, along with five others, obstructed. Those Obstructors themselves invoked Order 21, Rule 97 of CPC. Eventually, all the six Obstructors filed exhibit 14 of 2012 before the Execution Court under Order 21, Rule 97 of CPC. That Court rejected the obstruction application, through its order, dated 30th January 2016. Further aggrieved, only Jugal Kishor Sharda appealed.
(d) What is the Scope of Inquiry in an Obstruction Application:
40. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [20], the Supreme Court has examined the cumulative effect of Order 21, Rules 97, 98, 99 and 101 of CPC. It has, then, held that if "the decree-holder is resisted or obstructed in execution of the decree for possession", he has to apply to the Executing Court under Order XXI, Rule 97 for removal of that obstruction. Then, after hearing AIR 1997 SC 856 WP 5341 and 5342 Copy the decree-holder and the obstructor, the Court can pass appropriate orders. Obviously, if the obstruction lacks a just cause, the Executing Court orders its removal; thus, the obstruction fails. On the other hand, if the Executing Court finds that the decree does not bind the obstructor, the execution fails. In either event, "the order passed would be treated as a decree under Order XXI, Rule 101, and no separate suit would lie against such order."
(e) Is Recording of Evidence Necessary in Obstruction Application?
WP 5341 and 5342 Copy
45. Let us not forget that the obstruction proceedings are deemed to be original proceedings. The application under Order 21, Rule 97 CPC stands governed by a legal fiction. The obstruction must be tried as if it were a suit between the decree-holder and the obstructor concerning the immovable property which is the subject of decree sought to be executed. Post-1976 Amendment to CPC, the obstructor has no option of filing a separate suit.
53. Here, I am afraid, Kanaklata Das does not apply. In the obstruction proceedings there ought to have been a full-fledged inquiry, with the parties placing their oral and documentary evidence on record. And, then, a finding whether the decree against the tenant binds the Obstructor, too, must have been WP 5341 and 5342 Copy arrived at. The Executing Court ought to have examined the impact of Section 15A of the Bombay Act or Section 25 of MRC Act, whichever is applicable. This examination essentially required the parties to lead evidence, as well. Once we have kept aside the decree, to which the Obstructor was not a party, the obstruction application required independent adjudication. And that adjudication could not have been summary; rather, it must have been comprehensive and dispositive. After a full-fledged inquiry if the Executing Court had held that the Obstructor was bound by the decree, it would have been a different ball game.