J.S. Verma, J.
1. This reference requires consideration of the correctness of the decision of a Division Bench in Bhagwat Narayan v. Kasturi 1973 MPLJ 899: (AIR 1974 Madh Pra 26), as a result of which the executing Court is bound to stay its hands the moment a third party files an objection to the execution and this stay continues till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. The success of the decree-holder/auction/purchaser even thereafter is subject to another such objector coming forward with a fresh claim requiring another investigation. Even though Bhagwat Narayan's case requires such an investigation to be summary, after the recent amendments in Order 21, by C.P.C. (Amendment) Act, 1976, the investigation is full as no separate suit lies later. This added difficulty in execution of a decree for possession has led to the present reference requiring reconsideration of the decision in Bhagwat Narayan's case.
2. The petitioners obtained a decree for eviction of their tenant Rishanlal Billa (respondent No. 2) and the subtenant Manoharlal Bajaj (respondent No. 3). Manmohan Bajaj (respondent No. 1) is the brother of the sub-tenant Manoharlal Bajaj (respondent No. 3). In the execution proceedings, Manmohan Bajaj (respondent No. 1) filed an application under Order 21, Rule 97. read with Rules 35 and 101 of the Civil P.C. as amended by the C.P.C. (Amendment) Act, 1976, and claimed full investigation of his right by which he claims to be in possession of the accommodation. Relying on the decision of the Division Bench in Bhagwat Narayan's case (supra), respondent No. l Manmohan Bajaj also claimed that the executing Court & bound to stay its hands until conclusion of the investigation of his right. The petitioners decree-holders opposed the application claiming that Manmohan Bajaj (respondent No. 1) had no right to file the application to the executing Court under Order 21, Rule 97; C.P.C. and to require an investigation into his right on the basis of that application. The executing Court rejected this objection of the decree-holders being bound by the decision in Bhagwat Narayan's case. The decree-holders feeling aggrieved by the executing Court's order rejecting their objection to the maintainability of the application under Order 21. Rule 97, C.P.C. at the instance of respondent No. 1 Manmohan Bajaj, preferred a revision to this Court.
3. When the revision came up for hearing before a Single Bench of this Court, it was contended on behalf of the petitioners that no application lies at the instance of a third party under Rule 97 of Order 21, Civil P.C. and that Bhagwat Narayan's case, (AIR 1974 Madh Pra 26) was wrongly decided. It was also contended that the hardship caused to the decree-holders as a result of the decision in Bhagwat Narayan's case has increased after the extensive amendments made in Order 21 of the Code by the Civil P.C. (Amendment) Act, 1976, as a result of which a full trial into the right and title by the executing Court itself is provided for and not a summary enquiry alone, which was envisaged earlier on an application under Order 21, Rule 97, Civil P.C. It was also contended that the consequence of following the decision in Bhagwat Narayan's case is, therefore, very harsh on the petitioners as the execution of the decree can be frustrated so long as the judgment-debtor has even a single friend left to oblige him by filing a fresh application under Order 21, Rule 97 to delay execution of the decree. The present case where the sub-tenant's brother has come forward to make such a claim is cited as typical example of the possible mischief. For these reasons stated in the order of reference, the single Bench has made this reference for reconsidering the correctness of the decision in Bhagwat Narayan's case. This is how the matter has come up before us.
4. Prior to the decision in Bhagwat Narayan's case (supra), the settled view of this Court was that the executing Court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder/auction-purchaser under Order 21, Rule 97; and that Order 21, Rule 97 was merely permissive and not mandatory so that the decree-holder/auction-purchaser need not resort to it against his will and may even apply for a fresh warrant under Order 21, Rule 35, Civil P.C. Reference may be made in this connection merely to the decision in Ramgulam v. Mahendra Kumar 1972 MPLJ 254, wherein all the earlier decisions of this Court and of other High Courts taking this view have been referred and followed. In addition to these decisions, there is also the Division Bench decision in Ballabdas v. Gulab Singh, AIR 1919 Nag 31 at p. 34, which holds that Order 21, Rule 97, is only permissive enabling the decree-holder/auction-purchaser to apply thereunder and not mandatory. Same is the view taken by other High Courts: Raghunandan v. v. Ramcharan AIR 1919 Pat 425 (21 (FB), Mukund Bapu v. Tanu Sakhu AIR 1933 Bom 457 (FB). The remedy of a third party under Order 21, Civil P. C, was only after dispossession in accordance with Order 21, Rule 100, Civil P.C. Jagannath v. Fasiuddin AIR 1938 Nag 442, Manakchand v. Chaturbhuj 1964 Jab LJ (Note) 15 and Ram Narayan v. Parmanand, 1969 Jab LJ (Note) 13.
5. It was, therefore, the settled view of this Court that a third party resisting the execution had no locus standi to claim investigation by the executing Court into his alleged right or title prior to his dispossession as Order 21, Civil P.C. did not contemplate any such enquiry at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21, Civil P.C; the remedy of such third party under order 21 was only after dispossession, under Order 21, Rule 100, Civil P.C. Order 21, Rule 97 being merely an enabling provision for the benefit of the decree-holder/auction-purchaser, it necessarily followed from this view that the , decree-holder/auction-purchaser could not be compelled indirectly to apply under Order 21, Rule 97 if that could not be done directly. Any construction of the provisions which had the result of indirectly compelling the decree-holder/auction purchaser to apply under Order 21, Rule 97 was, therefore, contrary to the settled view of this Court including the view taken by the Division Bench in Ballabdas's case (supra). This was the position when Bhagwat Narayan's case came to be decided.
6. Bhagwat Narayan's case (supra), (AIR 1974 Madh Pra 26) was a revision filed in this Court by a third party whose application objecting to execution of a decree for possession on the ground that he was not bound by the decree as he did not claim through the judgment-debtor, had been dismissed as untenable by the executing Court. That revision came up for hearing initially before Rajna, J. The learned Judge was of the view that the remedy under Order 21, Rule 100, Civil P.C. after dispossession was inadequate and there being no provision in Order 21 to enable an investigation into the claimant's title prior to his dispossession, this could be done in exercise of the inherent power under Section 151, C.P.C. Taking the view that the earlier settled view of this Court needed reconsideration, Raina, J. referred for decision of a Division Bench the following question viz., '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?' This is how the question came up for decision before a Division Bench consisting of Shiv Dayal J. (as he then was) and G.L. Oza J.
7. The question referred to the Division Bench in Bhagwat Narayan's case indicates that the Division Bench was called upon to decide whether an application by a third party claiming to be in possession in his own right can be entertained to provide the foundation for investigation into his right or title before his dispossession. The answer given by the Division Bench, in substance is that such an application of the third party amounts to resistance or obstruction contemplated by Order 21, Rule 97 C.P.C. that the executing Court is bound to stay its hands as soon as such an application has been made by a third party; the stay of the execution proceedings must continue until the decree-holder either satisfies the executing Court that such a person is bound by the decree, or makes an application under Order 21, Rule 97 complaining resistance or obstruction; if the decree-holder makes an application under Order 21, Rule 97, and on enquiry a conclusion is reached in accordance with Order 21, Rule 98, then only such a person can be dispossessed. The consequence of this view is that even though the right of a third party to apply under Order 21, Rule 97, Civil P.C. claiming investigation into his right or title has not been directly upheld, the same result is brought about indirectly inasmuch as his application makes it incumbent on the executing Court to stay its hands until the decree-holder either satisfies the Court that such a person is bound by the decree or makes an application under Order 21. Rule 97, resulting in a conclusion being reached in accordance with Order 21, Rule 98, after an enquiry. The view of the Division Bench also results in compelling the decree-holder/auction-purchaser to apply under Order 21. Rule 97 against his will because otherwise the execution proceedings would remain stayed sine die. Obviously the Division Bench did not find any cogent ground to differ from the earlier settled view of this Court that Order 21, Rule 97 does not enable a third party claiming to be in possession in his own right to apply for investigation into his title and, therefore, to that extent the Division Bench has not directly differed from the earlier view.
8. In Bhagwat Narayan's case (AIR 1974 Madh Pra 26), neither of the two learned Judges constituting the Division Bench has referred to any of the earlier decisions on the point. We do not, therefore, have the benefit of knowing how they were able to get over those earlier decisions with which their view is an conflict. We shall, therefore, refer only to the reasons given by the learned Judges in their separate opinions and consider if the same can be accepted.
9. The main order in Bhagwat Narayan's case is by Shiv Dayal, J. (as he then was) while Oza, J. in a separate concurring order, has given his separate reasons. The reasons given by Shiv Dayal, J. (as he then was) are: --
(1) Trip Executing Court has no jurisdiction under Order 21, Rule 35, C.P.C. to remove a third person who is not bound by the decree, unless the Court holds that such third person is holding on behalf of the judgment-debtor without any just cause.
(2) If the third person is not bound by the decree, the only two courses open to the decree-holder are to institute a regular suit for declaration of title or to apply under Order 21, Rule 97, C.P.C. and obtain an order after a summary enquiry under Order 21, Rule 98 in his favour.
(3) Unless the decree-holder satisfies the Executing Court that such third person is bound by the decree so that he can be removed under Order 21, Rule 35 or applies under Order 21, Rule 97 and gets an order under Order 21, Rule 98, Civil Procedure Code the Executing Court must stay its hands as it has no jurisdiction to proceed with execution on resistance or obstruction of such third party indicated by filing an application in Court.
(4) Such a view alone will avoid confusion and do justice to a third party claiming to be in possession in his own right because otherwise the only remedy to him would be under Order 21, Rule 100, C.P.C. after dispossession. This view requires only a summary enquiry of a short duration which would not be unjust to the decree-holder. Award of costs and mesne profits to the decree-holder can be made in case of frivolous or vexatious claims.
The separate order of Oza, J., indicates that his main reason for concurring with the view taken by Shiv Dayal, J. (as he then was) is that Order 21, Rule 35 gives jurisdiction to the Executing Court to effect delivery of possession by removal of a person bound by the decree and, therefore, on resistance by a third person in possession by making an application to the Court the Executing Court has no jurisdiction to proceed with the execution unless it is held on enquiry that the third person is bound by the decree so as to attract the power under O, 21, Rule 35 or a conclusion in accordance with Order 21, Rule 98 after an enquiry into his title is reached.
10. The real reason for the view in Bhagwat Narayan's case (AIR 1974 Madh Pra 26) is, therefore, that Order 21, Rule 35, C. P- C. conferring jurisdiction on the Executing Court itself contemplates an enquiry into the title of a third person resisting or obstructing the execution and that casts an obligation on the decree-holder to satisfy the Court in an enquiry that the objector is bound by the decree, the moment such a resistance or obstruction is made in the shape of an application to the Court. The question, therefore, is whether this reason given by the Division Bench can be upheld as correct.
11. It would be sufficient to refer to the decision in Ramgulam v. Mahendra Kumar 1972 MPLJ 254 in which this question also was considered at length referring to the earlier decisions of this Court as well as of the other High Courts, It was clearly pointed out that no enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21, C.P.C. when the decree-holder or the auction-purchaser applies for obtaining possession. Subsequently when the decree-holder or auction-purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under Rule 97. But that provision is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser to apply instead for a fresh warrant of possession. The entire scheme of Order 21 was considered in that case with reference to the relevant earlier decisions including the Full Bench decisions of other High Courts and it was pointed out that an enquiry at the instance of a third party in possession was contemplated only under Order 21, Rule 100 after he was dispossessed and not before it. This decision too was reported prior to the decision in Bhagwat Narayan's case. Unfortunately none of these decisions appear to have been brought to the notice of the Division Bench on account of which no attempt has been made to meet them before reaching a contrary conclusion. The Division Bench in Bhagwat Narayan's rase merely assumed that such an enquiry at the Stage of Order 21, Rule 35 was contemplated and it is this fallacy which led to the ultimate conclusion reached by it.
12. In Ramgulam's case very strong reasons were given for taking the view that no such enquiry is contemplated at the stage of Order 21. Rule 35, C.P.C. We are in full agreement with that view as well as the reasons on which it was based. Accordingly we prefer to give some relevant extracts therefrom instead of restating the same. The relevant portions from that decision are as under:--
'To appreciate the rival contentions, it is necessary to consider the relevant provisions of the Code in Order 21............
Under Rules 35 and 35 the Court's assistance is available by issue of a warrant for delivery of actual possession, joint possession or symbolical possession. Form of warrant for delivery of possession finds place in Form No. 11 of Appendix E. It is noteworthy that this warrant in general terms direct the baliff to put the decree-holder in possession of the property and to remove any person bound by the decree who may refuse to vacate the same. The language of the form, which is in line with first clause of Rule 35, indicates that the warrant issued under this provision is not issued to remove any particular individual from possession, but is issued in general terms to remove any person bound by the decree. It follows that the words -- 'if necessary by removing any person bound by the decree who refuses to vacate the property' -- which find place in Clause (1) of Rule 35 do not contemplate any inquiry for finding out as to who is the particular person, in possession or whether he is bound by the decree or refusing to vacate the property. The provision for issue of a warrant in general terms negatives any such inquiry.'
'The third clause of Rule 35, which also deals with delivery of actual possession, enables the Court to direct the removal or opening of any lock or bolt or breaking open of any door or doing of any act of similar nature for putting the decree-holder in possession of any building or enclosure when the person in possession being bound by the decree does not afford free access. The words -- 'where the person in possession bound by the decree does nor afford free access' -- as used in this clause like the words 'by removing any person bound by the decree who refuses to vacate the property--' as used in the first clause do not require any inquiry to be made to find out as to who is the particular person in possession or whether he is bound by the decree or affording free access. The third clause interpreted along with the first clause only contemplates of a general direction to be inserted in the warrant authorising the baliff to do the acts mentioned in that clause for putting the decree-holder in possession of any building or enclosure where the person in possession being bound by the decree does not afford free access.'
'The second clause of Rule 35 deals with the mode of delivery of possession when the decree being executed is one for joint possession. It only requires that a copy of warrant be affixed in some conspicuous place on the property and the substance of the decree be proclaimed by beat of drum or other customary mode at some convenient place. There is hardly anything in this clause which may furnish the basis for any inquiry.' (pp. 256-257)
'But when the decree to be executed is one for actual possession and the decree-holder chooses to apply for issuance of a warrant for delivery of actual possession, the Court is not required to hold an inquiry whether the person in occupation is one bound by the decree and the duty of the Court is to issue a warrant under Rule 35. A third party, meaning thereby a person who is not the judgment-debtor or a representative in interest of the judgment-debtor, has no locus standi at that stage to apply that the application of the decree-holder for actual delivery of possession should be dismissed and that he be granted only constructive possession. An application of the judgment-debtor or his representative in interest stating that the decree for any reason is not executable in a particular mode will stand on a different footing as it will fall under Section 47 of the Civil P.C. and will be decided under that provision. But a third party cannot intervene at that stage and force an inquiry into his title or possession on an unwilling decree-holder for the simple reason that his case does not fall under Section 47 and no inquiry into his title or possession is contemplated under Rules 35 and 36 at any rate at his instance,'
'Similar is the position when an auction-purchaser seeks the assistance of the Court for being put into possession under Rules 95 and 96. These rules are worded in like manner as Rules 35 and 36 and a third party cannot intervene to have his title or possession investigated under them.'
'After a warrant for delivery of possession is issued in favour of a decree-holder or an auction-purchaser, he may be met with resistance or obstruction in obtaining possession and the warrant may be returned unexecuted. He will then have three courses open to him. He may accept that the person resisting or obstructing execution is a third party in possession who is not bound by the decree in which case he will have to institute a separate suit for possession within ordinary period of limitation for obtaining possession. He may proceed on the assumption that the resistance or obstruction is by the judgment-debtor or a person bound by the decree in which case he has to apply under Rule 97 for getting the title and nature of possession of the person obstructing or resisting investigated in execution proceedings. But he is not bound to apply under Rule 97 and may ignore the obstruction or resistance and apply again for warrant of delivery of possession; See Nathu Harishankar v. S. Fatusa AIR 1933 Nag 369, Ganpati Singh v. Ramgopal AIR 1941 Nag 322 and Official Trustee v. Monmothonath AIR 1953 Cal 499. It is also clear that if the decree-holder or the auction-purchaser does not choose to apply under Rule 97 neither the person obstructing or resisting execution, nor a person who may in future obstruct or resist execution can apply under that rule to have his title' and possession investigated; See Jagannath v. Khaja Faisuddin AIR 1935 Nag 212 and Nanakchand v. Chaturbhuj 1964 MPLJ (Note) 126.' (p. 258)
'Thus the provisions contained in Rules 97, 98 and 99 authorise an inquiry into the nature and character of the possession of a person who has obstructed or resisted the delivery of possession; but as already stated, the inquiry under these rules can be made only on the complaint of the decree-holder or auction-pure baser and not at the instance of the party in possession.'
'An inquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and applies under Rule 100 complaining of such dispossession.'
'The conclusion reached by me that no inquiry is contemplated under Rules 35 and 36 or Rules 95 and 96 into the rights of a third party is strongly supported by a Division Bench ruling of the Calcutta High Court in the case of Kiron Soshi Dasi v. Official Assignee of Calcutta, AIR 1933 Cal 246 : ILR 60 Cal 8. In that case it was held that no investigation as to rights of a third party in possession is contemplated under Rules 95 and 96. In that connection, Rankin, C. J. with whom Costello, J., agreed observed as follows : x x x x'
'Similar is the opinion of a FullBench of the Orissa High Court in thecase of Nityananda v. Bala Devi, AIR 1952 Orissa 120. In holding that a thirdparty objector cannot apply under Rule 95 or 96 for investigation of his objection, Jagannadhadas, C. J., who delivered the judgment of the Full Bench,said:
'The third-party-objector does not at all come into the picture at that stage and can have no right at the time to compel the decree-holder or the auction-purchaser to submit to an investigation, into the title or possession.'
On a parity of reasoning the observations made in the Calcutta and Orissa cases mentioned above also apply to the construction of Rules 35 and 36.'
13. We have quoted extensively from the decision in Ramgulam's case (1972 MPLJ 254) because that deals with the various aspects of this point and refers to the earlier decisions not only of this Court but also Full Bench decisions of other High Courts supporting that view. The basic assumption made by the Division Bench in Bhagwat Narayan's case that an enquiry is contemplated at the stage of Order 21, Rule 35, C.P.C. at the instance of a third party without which the Executing Court has no jurisdiction to proceed with the execution is, therefore, untenable for the reasons given in Ramgulam's case with which we are in full agreement. The option available to the decree-holder to apply for a fresh warrant of possession was also overlooked. That being the main reason for taking the view reached by the Division Bench in Bhagwat Narayan's case (AIR, 1974 Madh Pra 26), the foundation for that view does not appear to exist. We shall now consider the other reasons given only in the opinion of Shiv Dayal, J. (as he then was).
14. Another reason given by Shiv Dayal, J. (as he then was) for his view in Bhagwat Narayan's case is that a contrary view would result in injustice to a third party in possession who would have no remedy to protect his possession and have his title judicially investigated prior to his dispossession, his only remedy then being under Order 21, Rule 100, C.P.C. after dispossession. With respect, this assumption too is incorrect and it also overlooks the injustice resulting to the decree-holder from this view. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession. In such a suit, if the conditions for grant of a temporary injunction having the result of staying execution of a lawful decree are satisfied by the plaintiff, making out a strong prima cacie case showing his alleged right and title independent of the judgment-debtor, then it is open to the civil court in that suit to grant a temporary injunction to protect his possession during the pendency of the suit. The satisfaction needed for granting a temporary injunction in plaintiff's favour in such a suit and the requirement of making out a strong prima facie case would ensure that the result of staying execution of a lawful decree during its subsistence is achieved only by a genuine claimant who alone is entitled to the protection of his possession and such a result does not ensue in the claim made by a spurious claimant who does not deserve that benefit.
15. Obviously, Shiv Dayal, J. (as he then was) in Bhagwat Narayan's case (AIR 1974 Madh Pra 26) had only such genuine claimants needing protection of the Court in mind when injustice to a third party in possession was given as a reason to support the view taken therein. It is, therefore, clear that the view taken in Bhagwat Narayan's case is not necessary for avoiding hardship to third parties in possession who have a genuine claim. On the other hand, the view taken in Bhagwat Narayan's case has the effect of delaying execution so long as there is even a spurious claimant, because it says that the moment any intimation is given by a third party to the executing Court, it must stay its hands till investigation into the claimant's title is made. This incongruous result does not follow, if such a third party is left to resort to the remedy of an independent civil suit claiming a temporary injunction therein where he has to make out a strong prima facie case for obtaining the temporary injunction.
16. Shiv Dayal, J. (as he then was), in Bhagwat Narayan's case, also gave the reason that only a summary enquiry is contemplated under Order 21, Rule 97. Any obstruction by spurious claimants for the purpose of delaying execution was met by the learned Judge on the ground that the executing Court could award heavy costs and also mesne profits in such cases. In our opinion, that is hardly any consolation to the decree-holder who is deprived of possession in spite of a decree-obtained by him as a result of repeated spurious claims made by third parties at whose instance the execution is stayed merely for the asking even without the requirement of showing the existence of a strong prima facie case in their favour.
17. After the recent amendments made in Order 21 by the Civi) P.C. (Amendment) Act, 1976, Bhagwat Narayan's case (AIR 1974 Madh Pra 26) is causing even greater hardship and injustice to the decree-holder/auction-purchaser and it increases the unfair advantage to the other side which could not have been in contemplation of the Division Bench. In fact, the requirement of only a summary enquiry given in the opinion of Shiv Dayal, J, (as he then was) in Bhagwat Narayan's case as a reason, is no longer available. As a result of the recent amendments in Order 21, C.P.C. the position is considerably altered and instead of only a summary enquiry being contemplated by the executing Court under Rule 97 followed thereafter by a regular civil suit, now after the amendments full investigation into the question of title is required to be made by the executing Court itself as is clearly provided in the amended Rule 101, Order 21, Civil P.C.
18. The result of the view taken in Bhagwat Narayan's case, therefore, is that after these amendments in Order 21 there would be an automatic stay of execution of the decree also where the, third party's claim is not even prima facie tenable, since the executing Court will have no power to examine that requirement and this stay would continue till the conclusion of the detailed investigation like a regular suit: and by virtue of the amended Rule 103 the ultimate order being appealable as a decree, the stay would continue till the final conclusion of the ultimate appeal filed in the case. On the other hand, if the third party in possession is left to avail of the remedy of a separate civil suit, claiming temporary injunction therein, which he can get if a strong prima facie case is made out to the satisfaction of the Court, then there would be no automatic stay of the execution proceedings and it would be only in a fit case where protection of the Court is necessary to a genuine claimant that such benefit would be extended.
19. We have already shown that .none of the reasons given by the Division Bench in Bhagwat Narayan's case (AIR 1974 Madh Pra 26} withstands [scrutiny and that the view taken there-in was on assumptions made which do not exist. With respect, we are of the opinion that the view taken by the Division Bench in Bhagwat Narayan's case cannot be upheld as correct. We are also of the opinion that the correct view which is also in line with the settled view of this Court as also the view of the other High Courts to contained in Ramgulam v. Mahendra Kumar 1972 MPLJ 254; for the same reason the view taken in Supreme General Films Exchange (Pvt.) Ltd. v. Yuvraj Govind Singh, 1972 MPLJ 857; that no fresh warrant could be issued on the auction-purchaser's application under Order 21, Rule 95, except under Rule 98 after investigation, treating that application as one under Rule 97, is also incorrect. We have already shown that the remedy to apply for a fresh warrant without making an application under Order 21, Rule 97, Civil P.C., is available to the decree-holder/auction-purchaser.
20. Accordingly, we answer the reference by saying that the decision of the Division Bench in Bhagwat Narayan v. Kasturi, 1973 MPLJ 899: (AIR 1974 Madh Pra 26), is not correct, while the correct view is expressed in Ramgulam v. Mahendra Kumar, 1972 MPLJ 254 which we hereby affirm.
21. The case shall now go back to the Single Bench for decision of the revision in accordance with this opinion.