1. The brief facts giving rise to this appeal are as under:-
Surinder Kumar and other sons of Jai Narain filed a suit for possession of the shop in dispute by way of redemption against Jagdish Lal and Suresh Kumar appellants on Feb. 24, 1979. The main plea taken by the defendants was that they were tenants prior to the mortgage and, therefore, they could not be dispossessed even if the mortgage redeemed. However, the trial Court decreed the suit on Aug. 2, 1980. Immediately thereafter, an execution application was filed on behalf of the decree-holders on Aug. 7, 1980. Meanwhile, an appeal against the said decree of the trial Court was filed and therein the orders for staying the execution of the decree was obtained. The said appeal was dismissed on Feb. 11, 1981. Thereafter, the execution application was restored and warrants of possession were issued on Feb. 24, 1981. On Feb. 25, 1981, when warrants were being executed, the judgment-debtors resisted the same and obstructed in obtaining possession of the shop in dispute. As a result thereof, the decree-holder Surinder Kumar filed an application purporting to be one under O. 21 R. 97, C.P.C. in which it was prayed that orders for police help along with orders of breaking open the lock etc. be given for delivery of possession along with fresh warrants. On Mar. 18, 1981, the judgment-debtors Suresh Kumar and Jagdish Lal filed an application purporting to be reply to the application filed on behalf of the decree-holders under O. 21, Rr. 97 and 98, C.P.C. It was prayed therein that the notices issued by the Court under O. 21 R. 97, C.P.C. may kindly be withdrawn and the execution application be dismissed as the same is inexecutable. It was stated therein that after the appeal filed on behalf of the judgment-debtors was dismissed on Feb. 11, 1981, Ashok Kumar one of the decree-holders, was requested to increase the rent and allow them to continue in possession. According to them Ashok Kumar agreed to double the rent and to allow them to continue as tenants provided rent for six months was paid in advance. Accordingly, they paid to Ashok Kumar a sum of Rs. 300/- as advance rent from Feb. 15, 1981 to Aug. 14, 1981 for which a receipt was executed by Ashok Kumar in favour of Suresh Kumar. On these facts, it was contended that the objectors are in possession of the disputed property as tenants in their own rights and could not be thrown out in the execution proceedings which has thus become inexecutable. On the pleadings of the parties, the executing Court framed the following issues:-
1) Whether Ashok Kumar decree-holder created a fresh tenancy in favour of Suresh Kumar on Feb. 15, 1981?
2) Whether Ashok Kumar received advance rent in the sum of Rs. 300/- from 15-2-1981 to 14-8-1981 and also executed receipt in this behalf:
3) Whether Ashok Kumar was not competent to let out the premises in dispute of Suresh Kumar as alleged in the reply
The executing Court under issues Nos. (1) and (2), discussed together, found that it was established on the file that Ashok Kumar--one of the owners-landlords created fresh tenancy in favour of the objectors on Feb. 15, 1981 and received advance rent at double the rate for six months, that is, from Feb. 15, 1981 to Aug. 14, 1981. Under issue No. (3), it was held that it was not established that Ashok Kumar was not competent to let out the shop to Suresh Kumar. In view of these findings, the objection petition was allowed and the decree was held to be inexecutable. In appeal, filed on behalf of Surinder Kumar decree-holder, a preliminary objection was taken that the appeal as such was not maintainable, since the objections will be deemed to have been decided under S. 47 of the Civil P. c. and according to the amended Civil P. C. no appeal as such was competent. However, the learned Additional District Judge overruled the said preliminary objection as it was found that the objections were filed in proceedings under O. 21 R. 97 Civil P. C. and in view of the provisions of O. 21, R,. 103 of the Code, it amounts to a decree and thus the appeal was maintainable. On merits, the lower appellate Court found that the finding of the executing Court under issues (1) and (2) was correct. However, it was further found that Surinder Kumar decree-holder had become the exclusive owner of the shop in dispute with effect from April 6, 1979 on the basis of the partition decree exhibit DH/1 and therefore, Ashok Kumar was not competent to let out the shop in dispute to Suresh Kumar. In view of this finding it was conclude that Suresh Kumar and Jagdish lal objectors did not become the tenants of the shop in dispute as claimed by them. Consequently, the reply-cum-objection petition filed on behalf of the appellants dated Mar. 18, 1981 was dismissed. Dissatisfied with the same, the objectors have filed this Second Appeal in this Court.
2. Learned counsel for the appellants vehemently contended that the executing Court while allowing the objection petition, will be deemed to have decided the same under S. 47 of the Civil P. C. and therefore, no appeal as such was competent against the said order of the executing Court. According to the learned counsel from the nature of the issues framed and the objections filed on behalf of the appellants, it was quite evidence that they are related to the execution, discharge or satisfaction of the decree and therefore, the same were covered by the provisions of S. 47 of the Civil P. C. and it has been wrongly held by the lower appellate Court that the objection petition will be deemed to have been filed in the proceedings under O. 21 R. 97 and decided under O. 21 R. 103. Civil P. C. The main argument of the learned counsel is that the objections are fully covered under S. 47 and not under O. 21 R. 97 Civil P. C. In support of his contention, he referred to Dharamadevan v. Kesavan Unniparan, AIR 1971 Ker 221: Santa Singh v. Dial Singh, 1980 Pun LJ 551: (AIR 1981 Pun & Har 26) ; State of U. P. v. Mahendra Tripathi AIR 1984 All 59: and Shri 108 Pujay Pad Advait Panch Parmeshwar Panchayati Akhara Bara Udasin Nirman v. Rameshwar Mandal, AIR 1984 Pat 95.
3. After hearing the learned counsel for the parties on this point, I do not find any force in this contention. Under S. 47 of the Civil P. C. questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree are covered whereas under O. 21 R. 97 read with R. 101 of the Civil P. C. questions including those relating to right, title or interest in the property arising between the parties to the proceeding on an application under r. 97 or R. 99 of O. 21 are to be determined by the executing Court. It could not therefore be successfully argued on behalf of the appellants that the reply-cum-objection petition filed to the application, filed on behalf of the decree holder, dated Mar. 2, 1981 was not covered by the provisions of O. 21, R. 97, Civil P. C. The language of R. 97 of O, 21 provides that where the holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. The language used is 'obstructed by any person'. It may be by the judgment-debtor or by a third person. Sub-rule (2) of the said R. 97 further provides that where an application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions thereunder contained. Sub-rule (2) of R. 98 of O. 21 further provides that where upon such determination, 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, he shall direct that the applicant be put into possession of the property. Rule 101 of O. 21 provides as under:-
'............. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under R. 97 or R. 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions'.
Thus the cumulative effect of all these rules read together is that if an application under O. 21 R. 97 is made, then its determination will be under R. 101 and then R. 103 further provides that where any application has been adjudicated upon under r. 98 or 100, the order made thereon shall have the same force and will be subject to the same conditions as to an appeal or otherwise as if it were a decree.
4. Even if it be assumed that the questions in the instant case related to the execution, discharge or satisfaction of the decree, even then the question depended on the right, title or interest which the appellants claimed in the shop in dispute because of the alleged fresh agreement in their favour executed by Ashok Kumar. Thus s. 47 and O. 21 R. 101 C.P.C. contemplate different situations. Under S. 47 C.P.C. all questions relating to the execution, discharge or satisfaction of the decree have to be determined by the executing Court whereas under R. 101 all questions including questions relating to right, title or interest in the property arising between the parties to the proceedings have to be determined by the executing Court. Thus there is no conflict between both the provisions as argued by the learned counsel for the appellants. Section 47 is a general provision whereas O. 21 rr. 97 and 101 deal with a specific situation. Moreover, S. 47 deals with executions of all kinds of decrees whereas O. 21 Rr. 97 and 101 deal only with execution of decree for possession. Apart from that, earlier i.e. prior to the amendment, every order falling under S. 47 C.P.C. was appealable (as the terms 'decree' included the order under S. 47 C. P. C) whereas now only certain orders as provided for under O. 21 have been made appealable. In the cases relied upon on behalf of the appellants, it has nowhere been laid down that the questions to be determined under O. 21, R. 97 will be deemed to have been decided under Section 47 C.P.C. if it was between the judgment-debtor and the decree-holder. In this view of the matter, this contention is repelled. The lower appellate Court rightly found that the order of the executing Court was appealable as a decree under O. 21, R. 103 of the C.P.C.
5. It was next contended that the alleged partition between the brothers in the year 1975 which was declared by the Civil Court vide decree dated April 6, 1979, was a sham transaction as it was never acted upon. According to the learned counsel for the appellants in spite of the said decree, the present suit for redemption was filed on behalf of all the brothers and no effort was made to bring it to the notice of the Court that only Surinder Kumar decree-holder was entitled to redemption as the suit property had fallen in his share by partition. According to the learned counsel, Ashok Kumar being one of the decree-holders and co-sharer had the right to let out the property and the finding of the lower appellate Court in this behalf to the contrary was wrong and illegal. Reference in this connection was made to Devi Das v. Mohan Lal AIR 1982 SC 1213, Sri Ram Pasriha v. Jagannath, Air 1976 SC 2335 and Bhartu v. Ram Sarup 1981 Pun LJ 204 (FB). However, I do not find any force in this contention either. The admitted facts are that Jai Narain the father of the decree-holders died on Mar. 14, 1984. He left behind six sons; four daughters and a widow. Earlier a suit for declaration was filed on Sept. 20, 1978 in which it was prayed that only sons of the deceased Jai Narain, are entitled to succeed to his estate and the daughters and the widow had no right therein and the said suit was decreed. Immediately thereafter, the said six sons of the deceased-Jai Narain filed a suit for redemption Feb. 24, 1979 which was ultimately decreed on Aug. 2, 1980. However, meanwhile since the family partition between the brothers, which had taken place earlier, was not being accepted by the various authorities, therefore, they had to file another suit for a declaration on Mar. 5, 1979. The said suit was decreed on April 6, 1979. Since the suit for redemption had already been filed on Feb. 24, 1979, the same was allowed to continue as such in spite of a decree for declaration with respect to the partition which had taken place earlier. Under these circumstances, it could not be successfully argued that the alleged partition between the brothers was a sham transaction. Thus the lower appellate Court rightly came to the conclusion that as a result of the partition of the property between the brothers, the shop in dispute had fallen to the share of Surinder Kumar decree-holder, who had become its exclusive owner. I do not find any infirmity or illegality therein as to call for interference in this Second Appeal.
6. Faced with the situation, the learned counsel for the appellants contended that the said partition being a pre-decree matter, the executing Court could not go into the same as it will amount to modifying the decree sought to be executed. In support of this contention, reference was made to Co-operative Bank, Harsana Kalan v. Ram Sarup Ravi Dutt, AIR 1953 Punj 267 ; Sardarni Jaswant Kaur v. Surjit Inder Singh Sibia ILR (1972) 2 Punj & Har 271: and Rajappa v. Sagar Krishnappa and Sons, AIR 1974 Kant 51. I do not find any merit in this contention either. The question of partition between the brothers could not be said to be pre-decretal matter between the parties to the present suit for redemption. It is those matters between the parties as such to a decree, which are relevant to the passing of the decree which are forbidden to be pleaded in the executing Court. The situation is different as regards the facts of the present case. Here the decree for declaration with respect to the partition between the brothers where the objectors were not arrayed as parties was passed on April 6, 1979 i.e. prior to the decree for redemption was sought to be executed. Thus it could not be successfully argued that it was a pre-decretal matter between the parties as such. The decree-holders tried to prove that Ashok Kumar decree-holder was not entitled to let out the property in dispute because he was no more the owner of the said property or a co-sharer therein because of the partition earlier. Therefore, this contention also fails.
7. It was then contended that after the tenancy was created by Ashok Kumar in favour of the judgment-debtor-appellants, they stepped into the shoes of Ashok Kumar and they cannot be dispossessed by the decree-holders unless partition is sought. To support this contention, reference was made to South Eastern Roadways v. Satyanarayan (1982) 2 Rent C. R. 362: (Air 1982 Orissa 167). This plea is not available to the appellants because the partition had already taken place between the decree-holders and according to the earlier finding, Ashok Kumar was not entitled to lease out the property when he ceased to be the co-sharer therein by virtue of the partition between the brothers.
8. Lastly it was contended that possession will be deemed to have been delivered to Ashok Kumar when he accepted the appellants as his tenants on his behalf as well as on behalf of the other co-sharers and thus the decree stands satisfied. According to the learned counsel, it was not necessary that decree must be satisfied by way of execution. Again there is a fallacy in this argument. Once it is found that Ashok Kumar was not competent to let out the premises, this question does not arise.
9. On behalf of the decree-holder-respondents, it was contended that it has been wrongly held by the Courts below that Ashok Kumar executed receipt exhibit O/1 by virtue of which he rented out the premises in dispute to Suresh Kumar. According to the learned counsel the said receipt or the plea of the tenancy created by Ashok Kumar was never taken by the judgment-debtors earlier when they field a criminal complaint on Feb. 25, 1981 nor at the time when resistance was shown to the execution of the decree. Thus argued the learned counsel, the story was an afterthought and the so-called receipt exhibit O/1 was created just to meet the situation. In any case, in view of the finding that Ashok Kumar was not competent to let out the premises because of the partition between the brothers in the year 1975, this question need not be gone into in this Second Appeal.
10. As a result of the above discussion, this appeal fails and is dismissed with costs.
11. Appeal dismissed.