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Tejpal Singh Vs. Hardit Singh, Etc. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberElection First Appeal No. 3 of 1980
Judge
Reported in18(1980)DLT295
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 25; Transfer of Property Act, 1882 - Sections 52; Constitution of India - Article 133
AppellantTejpal Singh
RespondentHardit Singh, Etc.
Advocates: Soli J. Sorabjee,; Raju Ramachandran,; S. Ganesh,;
Cases ReferredSmt. Shanta Sabharwal v. Smt. Sushila Sabharwal
Excerpt:
.....of questions under section 47 does not amount to a decree and is not appealable under the code. rule 103 or order 21 is an exception to this rule. a decree for possession can be executed under order 21, rule 35 and the resultant decision is not appealable. ; 2. obstruction to the execution of a decree may be offered not only by the judgment-debtor but also by other persons and rule 97 includes an obstruction 'by any person in obtaining possession of the property'. if the decree-holder is obstructed from taking possession he can make an application to the court complaining of such obstruction under rule 97(1). rule 97(2) which requires the court to adjudicate upon the application in accordance with the provisions of rules 101, 98 & 100. the distinction between the..........the decree in execution case no. 40 of 1979. the decree was based on a compromise between the decree-holder, hardit singh, and the judgment-debtor, daljeet singh. it provided for the judgment-debtor handing over possession of the premises to the decree-holder. when the decree-holder sought to obtain possession of the premises by way of executing the decree, he was obstructed by tej pal singh, the present appellant who came into the possession of the premises as a result of an agreement between him and the judgment-debtor after the decree against the judgment- debtor was passed. (2) the decree-holder made an application complaining of the obstruction by the objector to which the objector filed a reply raising various pleas and the decree could not be executed against him. some of the.....
Judgment:

V.S. Deshpande, J.

(1) This is an appeal under section 10(1) of the Delhi High Court Act, 1966, read with Rule 103 of Order 21 and section 96 of the Code of Civil Procedure (the Code), as amended in 1976. It is against the order of a learned single Judge passed on the original side in execution proceedings. The decree- holder respondent sought to execute the decree in execution case No. 40 of 1979. The decree was based on a compromise between the decree-holder, Hardit Singh, and the judgment-debtor, Daljeet Singh. It provided for the judgment-debtor handing over possession of the premises to the decree-holder. When the decree-holder sought to obtain possession of the premises by way of executing the decree, he was obstructed by Tej Pal Singh, the present appellant who came into the possession of the premises as a result of an agreement between him and the judgment-debtor after the decree against the judgment- debtor was passed.

(2) The decree-holder made an application complaining of the obstruction by the objector to which the objector filed a reply raising various pleas and the decree could not be executed against him. Some of the basic objections were dismissed by the learned single Judge by the order under appeal. A preliminary objection to the maintainability of the appeal is taken by the respondent decree-holder. Shri R. S. Narula learned counsel for the respondent argued that the appeal is barred by Rule 102 of Order 21 of the Code.

(3) The question before us is whether a transferee pendente lite of the property of the judgment-debtor is excluded from the right of appeal given by rule 103 of Order 21 by Rule 102 of Order 21.

(4) Before the amendment of the Code in 1976, the definition of 'decree' in section 2(2) of the Code included determination of questions under section 47 of the Code with the effect that many of the orders in execution between the parties used to be appealable. But the amendment of 1976 has taken out all references to section 47 from the definition of the 'decree' in section 2(2). As a rule. thereforee, determination of questions under section 47 does not amount to a decree and is not appealable under the Code as a decree.

(5) An exception to this rule is made by Rule 103 of Order 21. which is as follows :

'WHEREany application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.'

Since it is only an adjudication under Rule 98, (we are not concerned with role 100), which is to have the force of a decree for the purpose of an appeal, we have to see what Rule 98 means and also the context in which Rules 98 and 103 are to be construed.

(6) Normally, a decree for possession is executed by recourse to Order 21 Rule 35 against not only the judgment-debtor, but against every person who is bound by the decree. All persons who derived title from the judgment-debtor after the passing of the decree (or subject to the provisions of section 52 of the Transfer of Property Act) stand in the shoes of the judgment-debtor and do not have any claim of title or possession independent of the judgment-debtor. They are, thereforee, liable to be evicted under Order 21 Rule 35. The decision there under is not made appealable.

(7) When the taking of possession by the decree-holder is obstructed by the judgment-debtor or a person bound by the decree, the decree- holder can ask for police aid and physically oust the judgment-debtor and the persons claiming through him and the decree-holder shall be put into possession of the property.

(8) However, obstruction may be offered not by the judgment-debtor but by other persons and it was felt necessary to provide for an adjudication of quesons arising between the decree-holder and such objectors. In doing so, however. Rules 97 was worded so broadly as to include an obstruction 'by any person in obtaining possession of the property.' The words 'any person' are not qualified and would, thereforee, presumably include even the judgment-debtor or persons claiming through him apart from third persons for whom such a provision was really necessary. If the decree-holder makes an application for possession, of immovable property and is obstructed from taking possession, he can make an application to the court complaining of such obstruction under Rule 97(1). Rule 97(2) requires the court to proceed to adjudicate upon the application in accordance with the provisions herein contained, namely, the provisions of Rules 101, 98, and 100. The scope of Rules 97 and 101 is the same. For, Rule 101 says that all questions arising on an application under Rule 97 (or Rule 99 with which we are not concerned) shall be decided by the executing court and not by a separate suit. If the decision of the court under Rule 101 is on an application made under Rule 97, then Rule 98 comes into operation. Under Rule 98(1) the court may put the decree-holder into possession of the property or may dismiss the application of the decree-holder. Under Rule 98(2) the court may put the decree-holder into possession of the property if it is satisfied that the obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf or by any, or by any transferee, where such transfer was made during the pendency of the suit or execution proceedings. An order putting the decree-holder into possession under Rule 98(2) would really be an order under Rule 35, because the persons mentioned in Rule 98(2) are 'bound by the decree' within the meaning of Rule 35. It is thus only the third persons who are not bound by the decree whose obstruction to the execution of the decree has any chance of succeeding resulting in the dismissal of the application of the decree-holder. Thus, while Rule 98(1) is worded widely in keeping with the language of Rule 97, Rule 98(2) is worded narrowly is keeping with the language of Rule 35. The distinction between the obstruction caused by persons who are bound by the decree and those others who are not bound by the decree has to be kept in view for a proper understanding of the dual nature of the contents of Rule 98. This would enable us to understand the object which is sought to be achieved by the making of Rule 102, which may now be considered. Rule 102 reads as follows :

'NOTHINGin rules 98 or 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.'

(9) In the light of the analysis of Rule 98 made above, it is the dual nature of the contents of Rule 98 indicated above, which explains why Rule 102 is concerned only with resistance or obstruction to execution offered by a transferee-pendente-lite. It was obviously considered an abuse of the process of court to allow the executing court to dismiss the application of the decree-holder for being put into possession on an objection raised by a transferee-pendente-lite. While the dismissal of the application of the decree-holder under Rule 98 is, thereforee, made appealable under Rule 103, an order dismissing the objection of a transferee-pendente-lite is excluded from Rule 98 apparently because such an order is covered by Rule 35 and is, there fore, not appealable.

(10) It is not clear why Rule 102 is confined only to transferees from the judgment-debtor, but does not include the judgment-debtor. The reason may perhaps be that the judgment-debtor cannot have any objection to the execution of the decree for possession and would be subject only to Order 21 Rule 35, while a traasferee-pendente-lite may seek to raise objections other than those which could be raised by the judgment-debtor. The policy of the law in making Rule 102 is that the transferre-pendente-lite is mot to be allowed to raise any objection which will take the execution proceedings outside Order 21 Rule 35 and bring them within the purview of Rules 97 and 98. The object is the same as is the object of section 52 of the Transfer of Property Act. Whatever that may be, one thing stands out clear. No order can be passed under Rule 98 when the obstruction to the taking of the possession is offered by a person who is a transferee-pendente-lite of the property of the judgment-debtor.

(11) Since it is only an order made under Rule 98, (or Rule 100), which is to be treated as a decree for the purpose of an appeal under Rule 103, and since an order under Rule 98 cannot be passed when ihe obstruction to possession is by such a transferee-pendente-lite, it would follow that a determination made in respect of such a transferee under Rule 101 cannot be given effect to by Rule 98 because of Rule 102.

(12) The result is that such a transferee-pendente-lite from the judgment-debtor cannot file an appeal under Rule 103.

(13) In regarding to the present appellant as a transferee-pendente- lite of the property from the judgment-debtor, we have relied upon the claim made by the appellant himself to be joined as a party in the execution proceedings between the decree-holder, Hardit Singh, and the judgment-debtor, Daljeet Singh. That claim was first disallowed by a learned single Judge, but was later on allowed by a Division Bench of this Court only because of the allegation made by then objector who is the appellant before as that he had obtained an interest in the property of the judgment-debtor and as such was entitled to become a party to the execution proceeding under Order 22 Rule 10 of the Code. That rule applies only when there is 'an assignment, creation or devolution of any interest' from a party to a suit to another person. It is such an assignee or transferee on whom the interest of the party to a suit devolves who is entitled to become a party to the suit. Since the appellant became a party to these proceedings only because of this allegation, we have to treat him as a transferee-pendente- lite from the judgment-debtor. Even the respondent-decree-holder has stated before us that 'according to the admission already made, the appellant is his sub-tenant. The sub-tenancy is, however, contrary to the provisions of the Delhi Rent Control Act.' This statement is based on the allegation made by Tej Pal Singh that such a sub-lease was granted to him by the judgment-debtor, Daljeet Singh. It is because the pleadings of both the parties are agreed in this respect that we have chosen to consider first the preliminary question as to whether a trans free-pendente-life from the judgment-debtor can maintain an: .appeal under Rule 103. Our answer to this question is that the said order has to be treated as an order under Order 21 Rule 35 and .not an order under Order 21 Rule 101 and 98 on an application mad? under Rule 97 of Order 21 of the Code. This is the effect of Rule 98. Hence the appeal under Rule 103 is not maintainable.

(14) Shri Sorabjee for the appellant then arggued that he was constrained to file this appeal under section 10(1) of the Delhi High Court Act read with the provisions of Code of Civil Procedure only because of the judgment of the Full Bench in University of Delhi v. Hafiz Mohd.. : AIR1972Delhi102 . Since we are holding that he was not entitled to file such an appeal, Shri Sorabjee contends that the said Full Bench judgment is wrong and reads to be reconsidered so that his appeal may be entertainable under the relevant clause of the Letters Patent. This Bench, however, in Smt. Shanta Sabharwal v. Smt. Sushila Sabharwal, : AIR1979Delhi153 , has already held that the judgment of the Full Bench does not require reconsideration and also it is not desirable that it should be reconsidered. For, questions relating to the interpretation of the Delhi High Court Act arise only in Delhi and a judgment of the five-Judge Bench of this court on the construction of that Act would not ordinarily be up-set by the Supreme Court.

(15) Shri Sorabjee then drew our attention to the following observation in paragraph 44 of the report of the judgment of the Full Bench :

'INother words apart from the orders which have the force of a decree, appeals will, thereforee, lie only against those orders passed by the single Judge which are mentioned in section 104 read with C. 43 Rule 11 of the Code and no appeal will lie against other orders which are outside these two provisions.'

In our view, the expression 'an order having the force of a decree' refers to the construction of the Code of Civil Procedure. Appeals there under are maintainable against orders either under section 104 or under Order 43 of the Code. These two provisions are supplemented by a provision like Rule 103 of Order 21 under which an' order under Rule 98 is appealable because it has the force of decree. Since Rule 102 carves out an exception to the appealability of an order under Rule 103, it cannot be said that the order under appeal has the force of a decree. We do not think that the Full Bench intended to add to the provisions of the Code of Civil Procedure any other category of cases which would be appealable apart from the Code of Civil Procedure. For, the very basis of the Full Bench decision is that appeals from orders made by a Judge of this court in exercise of the original civil jurisdiction would lie only under the Code of Civil Procedure and not under the Letters Patent.

(16) For the above reasons, the appeal is dismissed in liming as being not maintainable under Rule 103 in view of Rule 102 of Order 21 of the Code. Sd-.00 Chief Justice Sd..00 B. N. Kirpal J. 7th May, 1980

(17) Shri Sorabjee orally prays for the grant of certificate for appeal to the Supreme Court under Article 133 of the Constitution against the order just delivered by us above. In our view, the construction of Rules 97 to 103 of Order 21, and particularly Rule 102, raises substantial questions of law. They are of general importance because these rules are to be construed constantly in execution' cases all over the country. These rules have been amended in 1976. After their amendment judicial decisions as to their meaning, particularly as to the effect of Rule 102 are not available. None has been cited before us. We ourselves found the construction of Rule 102 in the context of Rules 97 to Rule 103 and of Rule 35 of Order 21 a. matter ' of first impression and, thereforee, of considerable difficulty. We think, thereforee, that these questions ought to be decided by the Supreme Court, so that uniform law is laid down all over the country. We, thereforee, certify the case as fit one for appeal to the Supreme Court.


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