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Bhanumati Toppo Vs. Shankar Prasad Pandey and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 45 of 1981
Judge
Reported in1985(I)OLR224
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 35(3) and 58
AppellantBhanumati Toppo
RespondentShankar Prasad Pandey and anr.
Appellant AdvocateM. Patra, Adv.
Respondent AdvocateS.S. Basu, Adv.
DispositionPetition dismissed
Cases Referred(Bhagwat Narayan Dwioedi v. Kasturi
Excerpt:
.....claimed joint interest with the opposite party no. 2 and having failed to produce and material before the executing court to establish her independent interest in the premises is a person bound by the order of eviction passed against opposite party no......such person as he may appoint to receive delivery on his behalf, and, if necessary by removing any person bound by the decree who refuses to vacate the property.(2) where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.(3) where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open.....
Judgment:

D.P. Mohapatra, J.

1. This petition under Section 115, Civil Procedure Code is filed by one Mst. Bhanumati Toppo challenging the order of the Munsif, Sambalpur in Execution Case No. 1 of 1975 rejecting her application for stay of further proceedings of the said case till her right, title and interest in the disputed property is determined. The property in question is the house bearing holding No. 774 in ward No. 8 in Jharsuguda town.

2. Sankar Prasad Pandey (opposite party No. 1) initiated a proceeding under the Orissa House Rent Control Act, (H. R. C. Case No. 46 of 1972) for eviction of the tenant, Miss. P. Tigge (Opposite Party No. 2) from the suit house. The application did not succeed before the House Rent Controller, but in appeal (H. R. C. Appeal No. 2/74) the petition was accepted on 10.10.1974 and the tenant was directed to vacate the disputed premises and hand over vacant possession of the same to the landlord by the end of November, 1974. The tenant (Opposite Party No. 2) tried to assail the said order in a writ petition before this Court (O. J. C. No. 1179/74) but did not succeed. However, this Court while dismissing the writ petition allowed the tenant to remain in the house till 31.3.1977. In accordance with this direction the tenant vacated the disputed house and filed a memorandum in the execution case which had been initiated by the decree-holder-landlord in 1975, during the pendency of the writ petition. Thereafter, the petitioner who was not a party to the proceeding under the House Rent Control Act has filed this application to stall any attempt by the decree-holder to evict her from the suit house by taking recourse to provisions of Order 21, Rule 35, C. P. C. She prayed for stay of further proceedings of the execution case till the decree-holder gets some order from the competent Court to evict her from the suit premises. In the application she alleged inter alia that she has been in possession of the suit premises in her own right for several years and she is not bound by the order for eviction passed in the proceeding under the Act against opposite party No. 2.

3. The executing Court on consideration of the application rejected the prayer of the petitioner holding that she is bound by the decree for eviction passed against opposite party No. 2.

4. Before considering the case on merits, it will be convenient to quote the provisions of Order 21, Rule 35, C. P. C., which has been referred to by the parties.

''35. Decree for immovable property :

(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.'

The core question that arises for consideration is whether the petitioner can be said to be a person bound by the decree. If the answer is in the affirmative, as held by the executing Court, the revision petition is bound to fail. On the other hand, if the answer is in the negative then the decree-holder is not entitled to evict her from the premises without taking recourse to provisions under Order 21, Rule 27, C. P. C.

At this stage it is pertinent to state the developments which took place after passing the decree for eviction and before filing of the application by the petitioner. One Haladhar Toppo, son of the petitioner filed Misc. Case No. 50/77 under Section 47 and Order 21, Rule 68, C. P. C, contending that he is not bound by the order of eviction. The said Misc. Case was dismissed. Thereafter, the present petitioner field Misc. Case No. 31/78, under Order 21, Rule 58, and Section 47, C. P. C, which was also dismissed. She challenged the order in appeal (Misc. Appeal No. 38/78) without success. Having failed in these cases the petitioner filed the present application when she knew that the order for issue of writ of delivery of possession was passed and necessary directions were issued to break open the lock with police help, if necessary. While considering the petitioner's plea that she was in occupation of the house in her own right and did not derive title/interest through the judgment-debtor (opposite party No. 2) the executing Court has relied upon a statement made by the judgment-debtor that the present judgment-debtor is her widowed sister and she (judgment-debtor) brought up Haladhar as her own son. Admittedly, Haladhar Toppo is the natural born son of the present petitioner. The Court has also taken note of the fact that the present petitioner in her earlier application under Order 21, Rule 58 and Section 47 C. P. Chad taken the stand of joint possession with the judgment-debtor. In view of these materials which are not converted before me, the conclusion in irresistible that the petitioner is a person bound by the decree and her present plea of having independent interest in the suit premises is an after-thought and a sheer attempt to delay the execution of the decree.

5. The learned counsel for the petitioner has laid stress on a decision of the Madhya Pradesh High Court reported in AI.R.1974 M. P., 26 (Bhagwat Narayan Dwioedi v. Kasturi, d/o Ramdayal A.N. M. Civil Dispensary, Morena) wherein it was held that as soon as the third person resists or obstructs delivery of possession, the executing Court must stay its hands, untill 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. It was further held that the third person can give intimation in writing to the executing Court of his intention to resist or obstruct after or even before warrant of possession is issued. This decision has been considered by the executing Court in the impugned order and has been rightly held to be distinguishable.

As discussed above, the facts and circumstances of the case clearly point to the position that the petitioner having claimed joint interest with the opposite party No. 2 and having failed to produce and material before the executing Court to establish her independent interest in the premises is a person bound by the order of eviction passed against opposite party No. 2.

6. In the result, the revision petition is devoid of merit and the same is dismissed with costs. Hearing fee assessed at Rs. 100/- (one hundred).


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