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Bhagwat Narayan Dwivedi Vs. Kasturi D/O Ramdayal, A.N.M., Civil Dispensary, Morena - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 384 of 1972
Judge
Reported inAIR1974MP26; 1973MPLJ899
ActsCivil Procedure Act , 1908 - Sections 151 - Order 21, Rules 35, 97, 98 and 100
AppellantBhagwat Narayan Dwivedi
RespondentKasturi D/O Ramdayal, A.N.M., Civil Dispensary, Morena
Appellant AdvocateA.B. Mishra and ;V. Tambet, Advs.
Respondent AdvocateM.L. Gupta and ;P.D. Gupta, Advs.
DispositionRevision dismissed
Cases Referred(Madh Pra) (Shiv Sarup Golas v. Ram
Excerpt:
.....bring a regular suit for declaration, 11. in this view of the matter, it must follow that if the decree-holder does not satisfy the court that the person, who refuses to vacate the property, of which possession is to be given to him under the decree, is the judgment-debtor or a person bound by the decree, within the meaning of order 21, rule 35, the executing court must stay its hand as soon as there is resistance offered or obstruction made by a third person. on the other hand, if the executing court is satisfied that the resistance or obstruction was occasioned by a third person 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, then the executing court will refuse to deliver possession to the..........it, unless there was an order against him. he claimed to be the tenant of one sushilabai. when the decree-holder was asked to take possession, bhagwat narayan obstructed. there was apprehension of breach of the peace. therefore, neither possession could be taken, nor attachment could be effected. the nazir recommended that police aid to be requisitioned.3. on august 28, 1972, bhagwat narayan made an application to the executing court stating that he is the tenant of smt. sushilabai; that no one by name yuvrajsingh is in the occupation of the house; that an ex parte collusive decree appears to have been obtained against some yuvrajsingh in order to harass the objector; and that on the basis of that collusive decree, the decree-holder is making an endeavour to dispossess him. he further.....
Judgment:

Shiv Dayal, J.

1. This Bench has been constituted to hear this revision on a reference made by Mr. Justice Raina, because, in his opinion, the following question deserves to be decided by a Division Bench.

'Whether the executing Court is bound to consider the application of a person in possession where he was not a party to the decree before he is dispossessed ?'

2. Facts material for this reference are that Kasturibai (respondent No. 1) obtained an ex parte decree for arrears of rent and ejectment against Yuvraj Singh (respondent No. 2) in respect of a house. To execute the warrants for possession and attachment, the Nazir went to the house on August 22, 1972. He could not deliver possession and made a report to the Court complaining, inter alia, that one Bhagwat Narayan claimed to be in possession of the house and refused to vacate it, unless there was an order against him. He claimed to be the tenant of one Sushilabai. When the decree-holder was asked to take possession, Bhagwat Narayan obstructed. There was apprehension of breach of the peace. Therefore, neither possession could be taken, nor attachment could be effected. The Nazir recommended that Police aid to be requisitioned.

3. On August 28, 1972, Bhagwat Narayan made an application to the executing Court stating that he is the tenant of Smt. Sushilabai; that no one by name Yuvrajsingh is in the occupation of the house; that an ex parte collusive decree appears to have been obtained against some Yuvrajsingh in order to harass the objector; and that on the basis of that collusive decree, the decree-holder is making an endeavour to dispossess him. He further alleges that the decree-holder brings goondas and threatens him. He prayed that until his objection was decided, the proceedings for possession be stayed and that he should not be dispossessed. This objection was supported by an affidavit. The decree-holder opposed the application contending that it was not maintainable and that he has no legal right of any kind.

4. By its order dated September 2, 1972, the executing Court rejected the objection with the observation that the objector had no right to file an objection. Since he had disclosed the capacity in which he is in possession and filed an affidavit, the decree-holder would initiate necessary proceedings, if the objector is in possession. Aggrieved by this order of the executing Court, this revision was filed by Bhagwat Narayan. It was laid before Mr. Justice Raina for hearing. He observed, the question how the executing Court can help a party in possession, who is not bound by the decree before he is dispossessed, has posed a problem which requires careful consideration. The learned Judge then referred to the decision of one of us (Shiv Dayal, J.) in Civil Revn. No. 275 of 1971 (Madh Pra) (Shiv Sarup Golas v. Ram-prasad Gupta), in which the decree-holder's reply to the application of the party in possession was treated as the decree-holder's complaint under Order 21, Rule 98, Civil R. C. The learned Judge then suggests that where such an application is made by the party in possession, before or after issue of process, theexecuting Court must consider it suo motu in exercise of its inherent jurisdiction, even though it may not fall under the provisions of Order 21, Considering this matter to be of general importance and of frequent occurrence, he referred it to the Hon'ble the Chief Justice for constituting larger Bench.

5. We have heard Shri A. B. Mishra for the petitioner Bhagwat Nara-yan, and Shri Motilal Gupta for the decree-holder. Shri Bhagwandas Gupta and Shri Hargovind Mishra assisted us as amicus curiae for which we are thankful to them.

6. The contention for the petitioner is that as he is in actual physical possession of the house in question and is claiming to be so as a tenant of one Smt. Sushilabai, who is the owner of the house, he cannot be dispossessed merely because an ex parte collusive decree had been obtained by the decree-holder and the existence of the judgment-debtor Yuvrajsingh is itself in doubt. It is argued that where a person is in physical possession and he claims to be so on behalf of another person, he cannot be dispossessed and it is only just and equitable that his objection must be heard. It is not necessary that he should use physical force to resist. A notice to the Court that he is resisting the execution should be enough. It is, therefore, urged that an enquiry ought to have been made into the allegations made by the petitioner Bhagwat Narayan and a judicial order ought to have been passed by the executing Court.

7. Shri Motilal Gupta, on the other hand, contends that a third person has no locus standi to make an application under Order 21, Rule 97, Civil P. C. It is only the decree-holder or the auction-purchaser who can complain against resistance or obstruction. Secondly, the decree-holder is entitled to an order for Police help in case the third person obstructs delivery of possession. It is further contended that resistance, within the meaning of Order 21, Rule 97, refers to one made at the spot and not by an application in the Court. It is further argued that if objections of third persons are entertained by executing Court, there will be no end to it. If the application of Bhagwat Narayan is dismissed, then a fourth person will come; when his application is dismissed a fifth person will come, and so on. On this argument, it is contended that the executing Court should pay no heed to the application made by a third person and must proceed with the execution unless the decree-holder complains under Order 21. Rule 97, Civil P. C.

8. In our view, the matter has to be approached from a different angle.The real question is of jurisdiction of the executing Court. It seems to us quite clear that the executing Court, in execution of a decree for possession, can put the decree-holder in possession by removing any person bound by the decree, who refuses to vacate the property. The judgment-debtor is undoubtedly bound by the decree. Apart from the judgment-debtor, if any other person is to be removed, the executing Court has to be satisfied that such person is bound by the decree; otherwise, the executing Court has no jurisdiction to remove a third person who is not bound by the decree and who refuses to vacate the property. The language of Order 21, Rule 35, supports this view.

9. If the decree-holder contends that the person who refuses to vacate is bound by the decree, he has to satisfy the Court about it. In other words, he must be either judgment-debtor, or a person who may be held in law as bound by the decree; for example, a person claiming under a title created by the defendant subsequent to the institution of the suit, or a sub-tenant in certain circumstances. But Order 21, Rule 35, does not permit a stranger, who is in occupation, to be removed when he refuses to vacate, unless and until the Court holds that such third person is holding on behalf of, the judgment-debtor without any just cause. (See Order 21, Rule 98, Civil P. C.). And, if such person still resists or obstructs, the Court is entitled to detain him in civil prison. The language of Order 21, Rule 98, leaves no manner of doubt that it is only after an order is passed under the first part of Order 21, Rule 98, that the Court may use coercive process and detain the person resisting or obstructing in civil prison.

10. The above scheme is consonant with justice. A person who claims to be in possession of the property, not through the judgment-debtor but from some one else or because of his own title, cannot be removed merely because there is a decree for possession in favour of the decree-holder. If the third person is not bound by the decree, there are only two courses open to the decree-holder to get him removed and obtain possession through the Court. One is that he can institute a regular suit for declaration of title, and the second is that he may first complain resistance or obstruction under, Order 21, Rule 97, Civil P. C., and obtain an order, after a summary enquiry under Order 21, Rule 98, in his favour. With-out taking recourse to either of these proceedings, the decree-holder is not entitled to be out in possession by removal of the third person. This is precisely the object and intent of the provisions contained inRules 97, 98 and 99 of Order 21. The enquiry is summary and any party who is aggrieved by the order can bring a regular suit for declaration,

11. In this view of the matter, it must follow that if the decree-holder does not satisfy the Court that the person, who refuses to vacate the property, of which possession is to be given to him under the decree, is the judgment-debtor or a person bound by the decree, within the meaning of Order 21, Rule 35, the executing Court must stay its hand as soon as there is resistance offered or obstruction made by a third person. The proceeding may again be set in motion, if the decree-holder complains of resistance under Order 21, Rule 97. The executing Court will then make an enquiry, which is summary in nature, and pass an order either under Rule 98 or Rule 99, according to the conclusion reached by it on the facts of the case. If the executing Court holds that the resistance or obstruction was occasioned without any just cause by the third person at the instigation of the judgment-debtor, the executing Court will put the decree-holder or the purchaser into possession of the property and. if necessary, will take Police help. On the other hand, if the executing Court is satisfied that the resistance or obstruction was occasioned by a third person 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, then the executing Court will refuse to deliver possession to the decree-holder and dismiss the application.

12. Where the decree-holder neither makes a complaint under Order 21, Rule 97, nor is able to satisfy the Court that the person offering resistance or making obstruction is bound by the decree, the Court has no alternative but to stay its hands. It has no jurisdiction to oust the third person. The Court will only wait for the decree-holder to apply under Order 21, Rule 97. The decree-holder may or may not apply as he may be advised. If he does not apply, the matter will remain stayed. If he applies, the Court will make an enquiry and will pass necessary orders.

13. This being the true position of the law, the question of setting up an enquiry on the application of a third person suo motu, in exercise of inherent powers on the ground that there is no other rule which provides for such an application of a third person, does not arise. It is sufficient for the third person to intimate the Court that he is in possession and that his possession is not on behalf of the judgment-debtor and the resistance or obstruction is not at the instigation of the judgment-debtor,

14. If that was not the law, it may lead to a confusion and even, breach of the peace. In case the decree-holder is strong enough, he will oust the third person without initiating a proceeding provided in the Code of Civil Procedure. But if the judgment-debtor is stronger, he will prevent, by application or show of force, the decree-holder from taking possession. This would then be the rule of the jungle. The law cannot be interpreted in a manner which will support such a rule. We have no hesitation in observing that we would have agreed with the learned single Judge in accepting his suggestion that the Court should make an enquiry suo motu in exercise of its inherent power, if we had not taken the view as we have, on the question of jurisdiction of the Court.

15. What form the decree-holder's complaint may take in order to move the executing Court to make an enquiry, will be a matter for consideration by the executing Court. For instance, the decree-holder, in his reply, opposing the third person's application for resistance, may enter into the merits of the case and dispute his claim and, at the same time, contend that the resistance is offered on behalf of the judgment-debtor or at his instigation. Such a reply may itself constitute a complaint within the meaning of Order 21, Rule 97, and it will clothe the executing Court with jurisdiction to make a summary enquiry under Order 21, Rule 97.

16. A decree-holder cannot be heard to say that he shall not make an application under Order 21. Rule 97 and the person in possession is not entitled to make such an application, having regard to the language of the Rule, so that straightway he should be given Police help and the third person be removed from possession. That would be hard and unjust for the person in possession, if he is a person in bona fide possession.

17. It was an argument before us that the third person is not without remedy. He can make an application under Order 21. Rule 100, Civil P. C. after he is dispossessed. There can be no doubt that Rule 100 comes into play when a person is dispossessed of the property. He has no cause of action to apply under that Rule, unless and until he is dispossessed. We see no reason why a third person, who claims to be in possession otherwise than through the judgment-debtor, should first be compelled to vacate without an order being passed against him under Order 21, Rule 98. It can be no consolation to a person in possession to be told that after dispossessionhe can take recourse to the remedy under Rule 100 of Order 21. In our opinion,Rule 100 is meant for cases where a third person is actually dispossessed without his having offered any resistance or obstruction in delivery of possession.

18. It was strenuously argued before us that judgment-debtors set up such persons as call themselves third persons and offer resistance or obstruct delivery of possession. For such cases, the Court has ample power to oust them but not without due process of law. There must be a complaint by the decree-holder and there must be an enquiry; and after the enquiry, there must be an order under Order 21, Rule 98, Civil P. C. The Court has then power to summon police aid and even detain in civil prison the person resisting or obstructing.

19. The argument that after the dismissal of an objection made by a third person, a fourth may come up and then a fifth one may come up has merely to be mentioned to be rejected. The scope of a summary enquiry and its magnitude will always depend upon the facts and circumstances of each case. The executing Court may have to spend a couple of days over it, or may complete the enquiry within a couple of hours, all depending upon the facts and circumstances of each case. We can only observe that the enquiry is of a summary nature and if the executing Court gives due consideration and applies its mind, it should not take any long to make an order which will be either under Rule 98 or Rule 99. It was said at the Bar that when an enquiry under Order 21, Rule 97, is made, sometime it takes months or even years. This is certainly undesirable and inappropriate, to say the least. Unnecessary delay in or protraction of such enquiry is unjust and defeats the very intent and purpose of Rules 97, 98 and 99 of Order 21. No hard and fast rule can be laid down, but we think that ordinarily the executing Court should not devote more than two hearings for concluding a summary enquiry. Both parties can be required to file affidavits in support of their claims. Both parties must produce their evidence, documentary and oral, on the date fixed; and, if assistance of the Court is required for summoning witnesses, steps should be taken so much in advance that service is effected before the hearing date. It must always be borne in mind that the enquiry is of a summary nature and it will be open to the aggrieved party to institute a regular suit for declaration.

20. In conclusion we will answer the question referred to us as follows :--

(1) Where a third person, who is not a judgment debtor or is not otherwisebound by the decree, is in possession of the property, of which possession is to be delivered to a holder of the decree forpossession or to an auction-purchaser, the executing Court has no jurisdiction to remove him from possession and deliver possession to the decree-holder or auction-purchaser, unless and until (a) it holds that such a person is bound by the decree, or (b) it makes an order under Order 21, Rule 98, Civil P. C. which presupposes the making of complaint by decree-holder under Order 21, Rule 97, of the Code.

(2) As soon as the third person resists or obstructs delivery of possession, the executing Court must stay its hands, until the decree-holder either satisfies it that such a person is bound by the decree, or makes an application under Order 21, Rule 97, complaining resistance or obstruction.

(3) The third person can give intimation in writing to the executing Courtof his intention to resist or obstruct. Itis not necessary that he should use forceor there should be a show of force onhis behalf. Such intimation may begiven to the Court after or even before awarrant of possession is issued.

(4) The enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided.

(5) 'If the Court finds that the resistance or obstruction was vexatious or frivolous, it may award heavy costs and also mesne profits.'

21. As the revision itself has been referred to us for decision, we now proceed to decide it on merits. The executing Court has not issued any coercive process. It has merely rejected the petitioner's application, holding that it does not lie (under Order 21, Rule 97) and that the decree-holder himself must make an appropriate application (under Order 21. Rule 97). In other words, the executing Court has stayed its hands. If it has not, it will now stay its hands, in the light of this order. The execution proceedings were stayed by a direction given in the order of reference of the learned single Judge.

22. With these observations, the revision is dismissed. Parties shall bear their own costs.

Oza, J.

22-A. I have had the advantage of going through the judgment of Hon'ble Shiv Dayal, J. As regards the conclusion. I entirely agree with it, but I wish to state my own reasons for the same.

23. The question referred to us by the learned single Judge has already been quoted by my learned brother in his order. In my opinion, the scheme of Order 21 is very clear. Order 21.Rule 35 only confers jurisdiction on the executing Court to effect delivery of pos-session in a decree for delivery of possession. It categorically states that the delivery of possession could only be ordered by the removal of the person who is bound by the decree.

24. Order 21, Rule 97 provides for resistance by third person. A perusal of this Rule clearly goes to show that when a third person resists or obstructs the execution of the decree, the decree-holder has to make an application complaining of such a resistance. Clause (2) of this Rule provides for investigating the question. The word 'resistance or obstruction' used in this Rule, it appears, has created some confusion, and sometimes it is understood to mean physical resistance. The word 'resistance' in its ordinary use means 'act or power of resisting: opposition: the opposition of a body to the motion of another.' It clearly goes to show that it does not contemplate a physical act accompanied with force.

25. When a third person in possession makes an application to the Court stating that he is in possession and is not holding under the judgment-debtor, consequently, a decree cannot be executed against him. Such an application, in my opinion, would be nothing else but a resistance to the execution of the decree, as by that application such a person informs the Court that the decree cannot be executed against him. Under these circumstances, therefore, when such a resistance by an application is indicated to the executing Court itself, Order 21, Rule 97 comes into operation and the Court can only proceed to inquire into the matter if the decree-holder chooses to make an application as contemplated under Order 21, Rule 97. There is no occasion for considering the application of the third person itself under Section 151 of the Code of Civil Procedure; as when there is a specific provision en-acted in the Code and the whole scheme of execution is specifically provided for, there is no occasion for use of the inherent powers under Section 151. It is also clear that the reply of decree-holder is not at all contemplated when a third person informs the Court of his independent possession to indicate the resistance to the execution. What the decree-holder is expected to do is to file an application under Order 21, Rule 97 if at all he so chooses, and in the absence of an application from a decree-holder, the executing Court cannot proceed to execute a decree against a third person. As Order 21, Rule 98 clearly indicates that if the executing Court comes to the conclusion that the resistance was by judgment-debtor or some other person at his instigation, then only it can proceed to pass an order for delivery of possession or even proceed against that person and order him to be detained in Civil prison. This Rule 98 has been amended by the M, P. High Court and the amended rule reads thus :

'Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days, and may order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally, in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expense caused to him in obtaining possession. The order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.'

This clearly goes to show that by amendment in this Rule, adequate provision has been made to compensate the decree-holder in case of frivolous objection raised at the instance or on behalf of the judgment-debtor himself.

26. In this view of the matter,, therefore, the answer to the question referred to above is that the executing, Court is bound to consider the application by a person who is in possession not on behalf of the judgment-debtor and that application has to be treated as a resistance to the execution of the decree without an application by the decree-holder under Order 21, Rule 97, and without an inquiry thereon and a conclusion in accordance with Order 21, Rule 98, he cannot be dispossessed.

BY THE COURT

27. (1) Where a third person, who is not a judgment-debtor or is not otherwise bound by the decree, is in possession of the property, of which possession is to be delivered to a holder of the decree for possession or to an auction-purchaser, the executing Court has no jurisdiction to remove him from possession and deliver possession to the decree-holder or auction-purchaser, unless and until (a) it holds that such a person is bound by the decree, or (b) it makes an order under Order 21, Rule 98, C. P. C., which presupposes the making of a complaint bythe decree-holder under Order 21. Rule 97, of the Code.

(2) As soon as the third person resists or obstructs delivery of possession, the executing Court must stay its hands, until the decree-holder either satisfies it that such a person is bound by the decree, or makes an application under Order 21, Rule 97, complaining resistance or obstruction.

(3) The third person can give intimation in writing to the executing Court of his intention to resist or obstruct. It is not necessary that he should use force or there should be a show of force on his behalf at the spot. Such intimation may be given to the Court after or even before a warrant of possession is issued.

(4) The enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided.

(5) If the Court finds that the resistance or obstruction was vexatious or frivolous, it may award heavy costs and also mesne profits.

(6) The revision is dismissed. Parties shall bear their own costs.


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