(1) This is a petition to revisetheorder of the District Munisif, Mabbubabad dated 24-12-1951 in E.A. No. 24 of 1951 in E. P. No. 21 of 1955 in O. S. No. 124 of 1353 F.
(2) The material facts are briefly these:
The petitioner are the decree-holders in O. S. No. 124/1353 F. on the file of the District Munsiff, Mahbubabad. Kumari Baliga, the third respondent here in is the sole Judgement-debtor. Respondents 2 and 3 as well as the father of the 1st respondent were brothers. In 1916, the ancestor of the petitioners and the father of respondents 2 and 3, Kumari Ramiah purchased the land in Survey 3, Kumari Ramiah purchased of land in Survey No. 355 and someother land. In 1334 Fasli the father of respondent 2 and 3 executed an unregistered sale deed in favour of the father of the petitioners. In 1940, therewas a lease, Ex. B-11 by the petitioners in favour of the third respondent. Subsequently in 1942, there was dispute between the third respondent and the petitioners regarding possession of the land. The Petitioners contended in that case that, after the termination of the leaseEx. B-11, they had taken over possession from the third respondent and that they continued to bein possession. Proceedings under Section 145 Cr. P. C. wereintiated. They ended against the petitioners and the land was released in favour of the third respondent. Respondents 1 and 2 werenot parties in those proceedings.
(3) Aggrieved against the order under Section 145 Cr. P. C. the petitioners filed O. S. No. 124 of 1353 F. against the third respondent in the Court of the District Munsiff, Mahbubabad. At a very late stage, when the evidence had beeen closed, the father of the first respondent made an application for being impleaded in that suit alleging that heand the second respondent had obtained specific 2/3rd of theland in partition and werein seperate possession of the land and that, therefore, they werein seperate possession of the land in partition and were in seperate possession of the land and that, therefore, they were interested in Survey No. 355, the suit property. The petitioners did not opposethe petition. Still, the learned District Munsiff dismissed that petition. Utimately, the litigation in O. S. No. 124/1353 F. ended by the High Court in passing a decreein favour of the petitioners in thesuit in 1954. They filed E.P. No. 21 of 1955 for possesion of thesuit land consisting of Ac. 7-25 guntas in Survey No. 355 in execution of the decreein O. S. No. 124 of 1353 F. When the bailiff attempted to deliver claiming that they were in possession of specific2/3rd portion of the land having obtained it in a partition between them and the third respondent about twenty years prior to thedateof the objection petition and that 2/3rd land was not lableto be delivered in execution.
The sameday i.e. 1-6-55, respondent 1 and 2 also filed a claim petition E.A. No. 24 of 1951 under XXI Rule 97 C. P. C. claiming title and possession to the specific 2/3rd land of Survey No. 355 and praying for an order that their 2/3rd land was not liable to be delivered. On the sameday, the Court perused this petition (hereafter referred to for convenience as the objection petition) and passed an order directing delivery of 1/3rd land of S. No. 355, which was claimed by respondents 1 and 2, and gave time to the decree-holders who were present in court, to file counter. On 21-6-1955, the petitioners field a counter contending that, even it there was a partition it must have taken place only after the suit was field, and that even if such a partition was made during the period of suit, it would not affect the decree and the right of the petitioners under that decree. Thelearned District Munsiff held an enquiry in the course of which respondent 1 and 2 as well as the petitioners let in evidence; oral and documentary. Both sides examined four witnesses. In addition, the respondents marked Exs. A.1 to A.5 and the petitioners marked Exs. B-1 to B-14. The learned District Munsiff passed an order dated 5-12-1955 dismissing the objection petition.
Respondents 1 and 2 field a revision in this Court. This Court passes an order setting aside the order passed by thelearned District Munsiff on the ground that he had not discussed the evidence and directing fresh disposal of the objection petition on the evidence on record. Accordingly, the learned District Munsiff discussed the oral evidence and choseto believe the evidence of P. Ws. 1 to 4 i.e., the evidence let in on the side of the respondents in preference to the oral evidence adduced on behalf of thepetitioners. He also considered the documentary evidence. By an order dated 24-12-1959, the learned District Munsiff allowed the objection of respondents 1 and 2 and ordered that the specific 2/3rd portion which they claimed in their objection petition should not be delivered in E. P. No. 21 of 1955. The petitioners felt aggrieved by that order and field this petition praying for revision of that order.
(4) Thelearned Advocatefor thepetitioners has urged two points beforeme. They areas follows:
(1) That theobJection petition under Order XXI Rule97 C.P.C., was not maintainablein law; and
(2) that, on theevidencethefinding of the learned District Munsiff believing the case of respondents about a partition and possession is not correct and sustainable.
(5) POINT No. 1: This point raises an interesting and complicated question of law. No direct decision of this Court has been placed before me. The objection i.e., respondents 1 and 2 were not parties in E. P. No. 21 of 1955 or in O. S. No. 124 of 1353F. The objection petition pirports to havebeen filed under Order XXI Rule 97 C.P.C. which runs as follows:
'(1) Where the holder of a decree for the possession of immoveable property or the purchaser of any property sold in execution of a decree is obstructed by any person in obtaining possession of the property, he may makean application to the Court complaining of such resistance or obstruction.'
This Rule does not comtemplateor given room for third parties (i.e., people who were not parties to the decree or the E.P.0 filing a petition for adjudication about their possession. In fact, Order XXI Rule 97 C.P.C. provides for the decree-holder making a petition to the Court complaining of resistance or obstruction by the third party.
(6) In Gangula Gopal Reddy v. Lachma Reddy, ILR 1954 Hyd 836: ((S) AIR 1955 Hyd 58) it was held that Order XXI Rule 97, C. P. C. did not deal with cases of threatened resistance or obstruction to beinitiated prematurely on the application of prospective objector, and that the resistance or obstruction or delivery of possession by itself saves the person in possession from being dispossessed and that Order XXI Rule 97 C.P.C., enjoins the Court to fix a date for investigating the matter and to summon the party against whom the application is made to appear and answer the same. In effect, it was held that a party in possession could not file an anticipatory application by a prospective or intending resistor or obstructor.
(7) In Nityananda v. Pala Dei, : AIR1952Ori120 a Full Bench of the Orissa High Court observed that the court could not anticipate the position contemplated by Order XXI Rule 97 C.P.C., and investigate the claim of prospective resistors and that the Court could not exercise any such anticipatory jurisdiction to inquire into the question of title of a thrid party prospective obstructor in an application by him before he had in fact been dispossessed and that such an application was not maintainable under Section 151, C.P.C.
(8) In the above two cases, the petitions were put in by third party as purely anticipatory applications. in the present case, the objection petition field by respondents 1 and 2 was not an anticiaptory application. It was a petition put in after respondents 1 and 2 had actually resisted delivery which the bailiff wanted to effect. So, those cases are easily distinguishable on facts from this case.
(9) In Kesvan Padmanabhan v. Neelakantan Narayanaa, (S) AIR 1955 Trav-Co. 225 (FB) on an application filed by the decree-holder the Court had fixed 23-6-1954 as the date for effecting delivery. The third party filed an objection petition in court even one day in advance i.e., 22-6-1954 even without resisting or obstructing delivery of the possession and even before the time came for such resistance. It was held that a third party could he was actually dispossessed. Therein, it was observed as follows: (at page225)
' A stranger to the decree for possession immovable property or to the decree and proceedings in execution at which immovable properties are sold can approach the Court and record his resistance or obstruction to delivery of property either to the decree-holder or purchaser as the case may be, before he had been dispossessed'.
The facts of that case are somewhat different from the facts of this case where the objection petition was put in by third party after actual resistance.
(10) All the same, from thevery wording of Order XXI Rule 97 C.P.C., the Rule contemplates the petition being filed by the decree-holder 'complaining of resistanceor 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 asideas prayed for by the learned counsel for the decree-holders.
(11) In Gulab v. Chhuttan, AIR 1931 Lah 13 an objection was raised on behalf of theappellants that there was no application by the decree holder to hold an investigation under Order 21, Rule97 C.P.C. The Lahore High Court held that the rule did not requireany application in writing and presumably an oral application or an application which implied a prayer for an investigation under the rule would give Jurisdiction to theCourt to hold an investigation. Also in that case, after theCourt had expressed its intention to hold an investigation both parties took part in such investigation. In such circumstances, it was observed that it would tantamount to a consent and an implied application by the decree-holder to hold an invesigation and that it was not open to theappellants to plead to thecontrary.
(12) In Alam Sher v. Dasu Ram, AIR 1934 Lahore 193(2) the decree-holder's counsel was present when there port of the bailiff complaining of the obstruction by the petitioners was placed before the Court. The Lahore High Court held that under such circumstances it was reasonable to hold that the further proceedings weretaken at the instanceof the decree-holder.
(13) In the present case, the respondent 1 and 2 obstructed the delivery on 1-6-1955. The officer of the Court before whom an obstruction on the sameday and the decree-holder was present in court. The Court passed an order directing delivery of the unobstructed one-third of theland and directing an enquiry regarding the right claimed by the respondents 1 and 2 in the obstructed 2/3rd land. The decree-holder actually filed counter on 21-6-1955. In the counter, they not only met the caseof the respondents 1 and 2 by pleadings but also prayed for possession being delivered to them. In fact, the content of this counter was substantially what they would have mentioned in a petition under Order XXI Rule 97 C.P.C., if they (decree-holders) had filed one. At the stage, the decree-holders did not raise the plea that the objection petition was not maintainable and ought to be dismissed, as it did not lie under Order XXI Rule 97, C.P.C., or any other provision of law. The decree-holder completely co-operated with the Court in holding the full enquiry and let in evidence, oral and documentary. When an order was first passed in their favour, they felt content with it.
It is respondents 1 and 2 who took the matter in revision to this Court. When this Court set aside the order of the lower Court and directed a fresh order to be passed, even then, the decree-holders did not raise any objection on the ground of l acki of Jurisdiction. After the second order was passed and they found it to be not in their favour, they filed this revision petition against that order. In this revision petition, they raised a point of law namely, that the petition under Order XXI Rule 97 C.P.C., was not maintainable. The decree-holders completely co-operated with the lower court in holding the full enquiry and they felt content when the result of the enquiry went in their favour in the first order, but resented when the second order came against them. The Courts will not permit a party to lie by or act in an indecisive manner, so as to obtain the benefit of the order, if it is in his favour, and endeavour to set it aside, if it is not. I find that in view of the decisions in AIR 1931 Lah 13 and in AIR 1934 Lah 193 (2) the enquiry in this case has to be deemed as one made on a petition filed by the decree-holder under Order XXI Rule 97 C.P.C. and that, therefore, the proceedings in the lower Court and the order passed are not illegal.
(14) Even assuming for arguments sake, without admitting, that the oorder of the lower Court is illegal as the proceedings were not properly indicated under Order XXI Rule 97 C.P.C. it would not be necessary in law to set it aside. If respondents 1 and 2 had not filed the petition and intiated proceedings, and if, on the other hand, the decree-holders had intiated the proceedings and filed a petition under Order 21 Rule97 C.P.C.,they would havehad the same opportunity to let in evidence as they had in these proceedings and the result would have been substantially the same. Supposing the decree-holder did not file any petition and respondents 1 and 2 also had not filed any obJection petition, the executing court would have merely recorded the obstruction so far as thetwo third sharewas concerned and closed the execution petition after delivering the undisputed one-third share, as contemplated in Abdul Aziz Shabib v. Chokkan Chettiar, AIR 1935 Mad 803 (FB). Therein, it was held as follows (at page 808):
'(a) Where a decree-holder-purchaser seeks delivery of possession of an item of property and if the Judgement-debtor obstructs, the decree-holder should make a complaint under O. XXI Rule97 C. P. C., and the matter must be disposed of in execution.
(b) If the Judgement-debtor anda third party both obstruct, the decree-holder-purchaser has to complain against the Judgement-debtor and, if he chooses, against the third party also under Order 21 Rule 97 C.P.C., and the complaint can then be disposed of.
(c) If theJudgement-debtor is quiescent, raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as heis concerned, there is no objection to the delivery. But, in such a case, the third party may object and on account of third party's objection, physical possession of the properly cannot to given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as thefact and to order delivery of such possession as the matter may then be capable of so far as the Judgement-debtor is concerned.
(15) The result of thefore going discussion may be summarised thus: Under Order 21, Rule 97 C.P.C. only the decree-holder can file an application to the court complaining of resistance or obstruction which can result in an 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 determineand safeguard his rights or to obtain an order in his favour under Order 21, Rule 97 C.P.C. 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 ot relief and to ask for an order in favour of himself (decree-holder). If he so contends, the application would have to be dismissed.
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 bevalid Just as if the counter which he filed was an application filed by him under Order 21, Rule 97 C.P.C. and as if the application which had been filed by such third party. A decree-holder who has so co-operated, without raising any objection probably in the hope that the proceedings would end in his favour and against thethird party, cannot be allowed or encouraged tro attack the order passed in such proceedings, if and when he finds that the order is not to his advantage or to his taste or upto his expectation.
(16) In the end, I find that substantial Justice has been done in this case, even thoufh there were some technical irregularities. I hold that Point No.1 is not tenable.
(17) POINT NO.2: The lower Court has placed greater value on the evidence of P. Ws. 1 to 4 (witnesses examined by respondents 1 and 2) than on the evidence of D.Ws 1 to 4 (witnesses examined by the decree-holder) and chose to prefer the former in preference to the latter. The lower Court has also considered the documentary evidence. The learned Advocate for the decree-holder points out that there are various important aspects from which those documents can belooked at which will throw valuable light on the question in issue and would show that the case of the decree-holders is a strong one. I do not wish to go into the details of the oral and documentary evidence lest it embrasses the parties in case they conduct any further proceedings. For, the decree-holders can file a suit, if they choose, under Order XXI Rule 103 C.P.C. The order of the lower Court cannot be said to be perverse. I find accordingly on this point.
(18) In the result, I dismiss the revision petition with costs.
(19) Revised dismissed.