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Smt. Madora Bibi and anr. Vs. Mohd. Mateen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2467 of 1972
Judge
Reported inAIR1980All206
ActsLimitation Act, 1963 - Article 167; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 97
AppellantSmt. Madora Bibi and anr.
RespondentMohd. Mateen and anr.
Appellant AdvocateTriloki Nath, Adv.
Respondent AdvocateN.A. Kazmi, Adv.
DispositionAppeal dismissed
Excerpt:
.....act, 1963 and order 21 rule 97 of code of civil procedure, 1908 - period of limitation is 30 days - decree holder filing first obstruction beyond time - fresh warrants are taken - second obstruction made - application now filed within 30 days relates to second and not first obstruction - held, proceedings initiated after first resistance was beyond time and order for possession illegal. - - but the bar created by the limitation of this section does not extend to and hold good so as to bar complaints against acts of resistance or obstruction made upon fresh proceedings taken by the decree-holder. learned counsel for the appellant has unsuccessfully tried to distinguish the view taken by the division bench of this court in (1904) ilr 26 all 365 (supra) and contended that this case..........limitation of 30 days from the date of resistance or obstructing. there is no mention that the 30 days limitation will run from the first resistance and not from the second resistance. a decree-holder is entitled to get possession so long the decree subsists and in spite of the fact that no proceeding has been initiated within 30 days of the first resistance under order 21, rule 97, c. p. c., proceeding could be started within 30 days from the subsequent resistance. in support of his contention, he placed reliance on narain das v. hazari lal ((1896) ilr 18 all 233) and maneklal nathalal v. ochhavlal chhaganlal : air1970guj49 . it has been contended by the learned counsel for the respondents that the proceeding tinder order 21, rule 97, c. p. c. could be initiated within 30 days from the.....
Judgment:

R.S. Singh, J.

1. This is the defendant's appeal filed against the decree and judgment dated 15-5-1972 passed by the Addl. District Judge, Kanpur, reversing the decree of the trial Court and decreeing the suit.

2. The facts of the case in brief are that defendants-appellants brought execution No. 5/59 against respondent No. 2 for possession of the premises in suit for satisfying her decree in Suit No. 1057/59 (Madaro Bibi v. Abdul Latif) of the Court of 3rd Addl. Munsif, Kanpur. The Amin went for delivery of the possession. The plaintiff-respondent No. 1 resisted the said execution on 21-1-1959. The Court Amin made report to this effect to the executing Court. After expiry of 30 days; defendants-appellant (decree-holder) moved another application before the executing Court for giving possession through the Commissioner. The Commissioner went on the spot for delivery of possession, but this time again, the plaintiff-respondent resisted the said execution. On 7-2-59, report was given to this effect by the Commissioner. Thereafter, on 6-3-1959, the defendant-appellant (decree-holder) initiated proceeding against the plaintiff-respondent under Order 21, Rule 97, C. P. C. It was contested by the plaintiff-respondent on the ground of limitation as having been filed after 30 days from the first resistance, which took place on 21-1-1959, but the objection of plaintiff-respondent was rejected. The order allowing the applicant's application and directing that the applicant (decree-holder) be put in possession of the property in dispute was passed. Thereupon, the plaintiff-respondent instituted a suit under Order 21, Rule 103, C. P. C. to establish the right, which he claimed to the present possession of the property. The suit was filed by the plaintiff-respondent against the defendant-applicant and the respondent No. 2 on the allegation that he is the office Secretary of Anjuman Islamia Musal-meen, Kanpur a registered society. He purchased house No. 99/72-A Manna Purwa, Becon Ganj, Kanpur, through a registered sale deed dated 20-10-1957 from Smt. Khairaul Kisan, widow and sole heir of Abdul Karim, deceased, to whom the said house originally belonged. At the time of the execution of the sale deed, plaintiff-respondent No. 2 was in possession in a portion of the said house, which is in dispute and who vacated the same after a few months of the said sale. It is alleged that the plaintiff is in occupation of the accommodation after the respondent No. 2 vacated it, on behalf of Anjuman Islamia. It was further alleged that the summary order passed by the trial Court dated 23-8-1960 under Order 21, Rule 98, C. P. C. in Misc. Case No. 35 of 1969 was illegal. Plaintiff was no party to the decree, which was sought to be executed against the judgment-debtor by defendant-appellant. The plaintiff resisted the said execution on 21-1-1959 and no suit was filed within 30 days from the date of the resistance. The defendant-appellant again tried to take possession through the Commissioner. It was again resisted by the plaintiff-respondent on 7-2-1959. Therefore, the suit was filed beyond time, but the Court illegally held it to be filed within time from the date of second resistance and passed the order of ejectment of the plaintiff-respondent, which was illegal. The plaintiff-respondent is entitled to remain in possession over the accommodation in dispute and is not liable for ejectment in this proceeding. The defendant-appellant contested the suit filed by the plaintiff-respondent on the allegation that Abdul Karim was her real brother and she purchased benami in the name of Abdul Karim, the plot on which the house in suit was built by her capital. It was also asserted that Karimul Nisan was not the widow of Abdul Karim and had no right to sale the house in-dispute and no valid sale had been executed by her. The trial Court recorded a finding that Anjuman Islamia Musalmeen had purchased the property in suit from rightful owner. But he maintained the order of ejectment dated 23-8-1960 passed under Order 21, Rule 98, C. P. C. It was held by the Munsif that the application under Order 21, Rule 97 initiated by the defendant-appellant was within time from the date of the second resistance. The plaintiff-respondent preferred an appeal against the judgment and decree of the trial Court, which was reversed by the lower Appellate Court. The decree of the lower Appellate Court has been challenged by the defendant-appellant in this appeal.

3. It has been contended by the learned counsel for the appellant that in spite of the fact that no proceeding against the plaintiff-respondent was initiated under Order 21, Rule 97, C. P. C. within 30 days from the first resistance, the proceeding which was initiated within 30 days from the second resistance was within time. According to him, Article 167 of Indian Limitation Act (Article 129 of the new Limitation Act) provides limitation of 30 days from the date of resistance or obstructing. There is no mention that the 30 days limitation will run from the first resistance and not from the second resistance. A decree-holder is entitled to get possession so long the decree subsists and in spite of the fact that no proceeding has been initiated within 30 days of the first resistance under Order 21, Rule 97, C. P. C., proceeding could be started within 30 days from the subsequent resistance. In support of his contention, he placed reliance on Narain Das v. Hazari Lal ((1896) ILR 18 All 233) and Maneklal Nathalal v. Ochhavlal Chhaganlal : AIR1970Guj49 . It has been contended by the learned counsel for the respondents that the proceeding tinder Order 21, Rule 97, C. P. C. could be initiated within 30 days from the first resistance and not from the second resistance. Reliance was placed upon Kesari Narain v. Abdul Hasan ((1904) ILR 26 All 365) and Mukund Bapu Jadav v. Tanu Sakhu Pawar (AIR 1933 Bom 457 (FB)).

4. I have considered the contentions of the learned counsel for both the parties. In (1896) ILR 18 All 233 (supra), it has been held that the period of limitation for initiating proceeding within 30 days is a limitation, which governs a cause of action arising out of a particular resistance or obstruction. So far as that resistance or obstruction is concerned, the decree-holder, if he wishes to initiate proceeding, must do so within one month from the time of such resistance or obstruction. But the bar created by the limitation of this Section does not extend to and hold good so as to bar complaints against acts of resistance or obstruction made upon fresh proceedings taken by the decree-holder. This view has been followed in : AIR1970Guj49 (supra), wherein it has been held that:--

'In view of the nature of the proceedings and the language of Article 129 Limitation Act it is more imaginary than real to say that a decree-holder, filing his application under Order 21, Rule 97 in respect of the first obstruction beyond time will defeat the provision of the Limitation Act by taking out a fresh warrant and then making an application in time for a second obstruction, though it may be more than 30 days after the first resistance. Article 129 Limitation Act only bars an application about a resistance made more than 30 days ago. If a second obstruction is made, the complaint is not about the first obstruction but only about the second. Since the law allows the decree-holder to make such an application, it cannot be said that Article 129, Limitation Act is made nugatory.'

Thus an application under Order 21, Rule 97 in respect of a second resistance to delivery under a fresh warrant under Order 21, Rule 35 filed more than 30 days after a first obstruction to a similar delivery, but within 30 days after the second obstruction is not barred under Article 129, Limitation Act.' But a contrary view has been expressed in (1904) ' ILR 26 All 365 (supra), wherein it has been held that once an obstruction has been created, a proceeding under Order 21, Rule 97, C. P. C, could be filed within 30 days of the resistance and the second application was held to be not maintainable. A similar question came for consideration before the Full Bench of the Bombay High Court (AIR 1933 Bom 457) (supra), It was held that

'Where the judgment-creditor fails to apply for removal of an obstruction under Order 21, Rule 97 within 30 days, he is not debarred from making an application under Order 21, Rule 35 to obtain a fresh warrant for possession. Article 167, Limitation Act, has nothing to do with such an application, for warrant for possession, but it will be applicable notwithstanding the fresh order for possession, to a subsequent application in respect of the same obstruction. And if the obstruction is by the same person and in the same character, the mere fact that the decree-holder is applying under a fresh warrant for possession would not make the obstruction a fresh obstruction.

Article 167, Limitation Act provides 30 days limitation from the resistance or obstruction caused by any person. There is no mention whether the limitation will run from the first resistance or from the second resistance. It gives a right to the decree-holder to initiate proceeding under Order 21, Rule 97, C. P. C. within 30 days from the date of resistance. The law does not contemplate removal of cause of action or extension of limitation for initiating a proceeding under Order 21, Rule 97, C. P. C. merely by putting second or any number of subsequent applications being resisted every time by the same person and initiating a proceeding within 30 days of the second or the last resistance. Learned counsel for the appellant has unsuccessfully tried to distinguish the view taken by the Division Bench of this Court in (1904) ILR 26 All 365 (supra) and contended that this case is covered by the decision of this Court in (1896) ILR 18 All 233 (supra) and the rules and decision reported on this point in AIR 1970 Guj 49 (supra). But, I find that in (1904) ILR 26 All 365, the earlier case of this Court reported in (1896) ILR 18 All 233 (supra) has been discussed. Therefore, I feel myself bound to follow the view expressed by the Division Bench of this Court reported in (1904) ILR 26 All 365 (supra) in preference to the view of any other High Court, howsoever, recent it may be. I hold that the proceeding initiated under Order 21, Rule 97, C. P. C., after 30 days from the first resistance was beyond time and the order to put the defendant-appellant (decree-holder) in possession was illegal.

5. The plaintiff-respondent has filed a suit under Order 21, Rule 103, C. P. C. to establish his right to claim to present possession of the property. Both the Courts below have concurrently held that Anjuman Islamia Musalmeen happened to be the real owner of the property in suit, the plaintiff, who is the employee of Anjuman Islamia will be deemed to be occupying the premises on behalf of the Anjuman Islamia, as mentioned by the plaintiff. In view of the finding, the claim of the plaintiff-respondent stands substantiated. He, therefore, cannot be evicted in execution of any decree against any third party.

6. I find no force in this appeal, which is accordingly dismissed. No order as to costs.


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