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Ram Swarup Vs. Mahabir Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1778 of 1966
Judge
Reported inAIR1969All440
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 97, 97(1), 97(2) and 99
AppellantRam Swarup
RespondentMahabir Prasad and ors.
Appellant AdvocateN.D. Ojha and ;R.N. Pandey, Advs.
Respondent AdvocateK.C. Saxena and ;V.N. Khare, Advs.
DispositionRevision allowed
Excerpt:
.....against judgment debtor - delivery of possession objected by father in law of judgment debtor - decree holder moved court and also sought police assistant through same application - objector filed objections - additional munsif passed order that objector had no right to be heard unless decree holder takes step under order 21, rule 97 - objector-applicant moved to high court - held, objector has a right to be heard in his own right. - - after hearing the learned counsel for the parties, i am satisfied that this contention is correct, for reasons which i shall proceed forthwith to indicate. 99. where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on..........of a house was passed against the judgment-debtor-opposite parties nos. 3 and 4 and in favour of decree-holder. opposite parties nos. 1 and 2 by the court of the 3rd addl. munsif, allahabad. on the 31st october, 1966, the amin went to deliver possession of the said house to the decree-holders-opposite parties nos. 1 and 2 but he was obstructed by ram swarup, the objector-applicant, who is the father-in-law of judgment-debtor opposite party no. 2, from doing so. the amin made a report about the said obstruction to the learned 3rd addl. munsif on the 4th november, 1966, and on the following day the decree-holder opposite parties also moved an application to the same effect before the learned 3rd additional munsif and prayed for delivery of possession with the aid of the police. the.....
Judgment:
ORDER

J.N. Takru, J.

1. This is an objector's application in revision against an order of the learned 3rd Addl. Munsif, Allahabad, rejecting his objection.

2. The brief facts, necessary for appreciating the point in controversy, are as follows;

A decree for possession of a house was passed against the judgment-debtor-opposite parties Nos. 3 and 4 and in favour of decree-holder. Opposite parties nos. 1 and 2 by the Court of the 3rd Addl. Munsif, Allahabad. On the 31st October, 1966, the Amin went to deliver possession of the said house to the decree-holders-opposite parties nos. 1 and 2 but he was obstructed by Ram Swarup, the objector-applicant, who is the father-in-law of judgment-debtor opposite party no. 2, from doing so. The Amin made a report about the said obstruction to the learned 3rd Addl. Munsif on the 4th November, 1966, and on the following day the decree-holder opposite parties also moved an application to the same effect before the learned 3rd Additional Munsif and prayed for delivery of possession with the aid of the police. The objector-applicant filed objections to the aforesaid application of the Decree-holders opposite parties nos. 1 and 2, and the latter filed their reply thereto. In his objections the objector-applicant also prayed for leave to adduce evidence in support of his objection, but it was refused by the learned 3rd Addl. Munsif by his order dated the 21st November, 1964 on the ground that as there was no provision for a third party to come and apply for adjudication of his rights in execution proceedings unless the decree-holder had taken steps under Order 21, Rule 97 C. P. C., which he had not done in the instant case, the objector-applicant had no right to be heard. Feeling aggrieved by this order the objector-applicant has preferred the aforesaid revision.

3. On behalf of the objector-applicant, his learned counsel, Sri N. D. Ojha, contended that as the refusal of the learned 3rd Addl. Munsif to exercise his jurisdiction and hear the objector-applicant's objections was based upon a clear misreading of the application made by the Decree-holder opposite parties nos. 1 and 2 on the 5th November, 1966, his order was manifestly erroneous and liable to be revised. After hearing the learned counsel for the parties, I am satisfied that this contention is correct, for reasons which I shall proceed forthwith to indicate.

4. Now Order 21, Rules 97 and 99 occur in the Code of Civil Procedure under the heading 'Resistance to delivery of possession to decree-holder or the purchaser', and the said rules, in so far as they are material for the present purposes, read thus:

Order 21, Rule 97, C. P. C.

'(1) where the holder of a decree for the possession of immoveable property .... is resisted or obstructed by any person in obtaining possession of property he may make an application to the court complaining of such resistance or obstruction.

(2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.' Order 21 Rule 99 C, P. C.

99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application,'

5. A plain reading of the aforesaid Rules shows that all that is required for their application is an application by the holder of a decree complaining of resistance or obstruction in obtaining possession by a person. Hence when such an application has been made, the Court has no option but to proceed in accordance with the procedure laid down in Rule 97 (2) of order 21. The fact that a prayer for police aid is also made in that application would not change its basic nature since the aid of the police is sought only because of the resistance and obstruction opposed (sic) by a person in obtaining possession. All that remains to be seen therefore is whether the application of the Decree-holder opposite parties nos. 1 and 2, dated the 5th November, 1966 fulfils the requirements of Rule 97(1), of Order 21. The said application was accordingly placed before me and after perusing it I am satisfied that it does. That application after stating how the D. H. opposite party No. 1 accompanied by the Amin went to take possession of the property of which possession had been decreed to him, and how he was resisted and obstructed by the objector-applicant in obtaining possession of it ended with the prayer that possession might be given to him with police aid. It is significant to note that there is no allegation in this application that the resistance and obstruction by the objector-applicant was for, or at the instigation of, the judgment-debtors opposite parties nos. 3 and 4 and not in his own right. I am therefore unable to see what further particulars that application should have contained in order to make it an application under Rule 97(1) of Order 21. The application being one under Order 21, Rule 97(1) the IIIrd learned Addl. Munsif was statutorily bound to follow the procedure prescribed under Order 21, R. 91(2) and he must consequently be held to have failed to exercise his jurisdiction and, in any case, to have acted with material illegality and irregularity in the exercise of the same in rejecting the objector-applicants' objections summarily.

6. On behalf of the Decree-holder opposite parties nos. 1 and 2, reliance was however, placed upon the decision in Gaya Nath v. Amulya Chandra Sarkar, AIR 1957 Cal 252 for the proposition that an application for police help was essentially different from an application under Order 21, Rule 97(1) and consequently every application seeking police help was not to be treated as an application under Order 21, Rule 97 C. P. C. There can be no objection to the correctness of the proposition enumerated above, but when we come to analyse it we find that all that it amounts to is that every application in which a decree-holder asks for police aid for obtaining possession should not be treated as an application complaining of resistance, and it leaves each application to be judged on its own merits. It is noteworthy that in same decision there is an observation that if the person against whom police aid is sought files objections he is entitled to be heard on the application praying for such help, but this is precisely what the learned 3rd Additional Munsif has refused to do in the present case.

7. Thus for the reasons stated above the revision is allowed, the order dated the 21st of November, 1966 is set aside and the case is remanded to the learned 3rd Addl. Munsif for disposal in accordance with law and the observations made above. The costs of the revision shall abide the result


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