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Ayer Ravji Vasta Vs. Joshi Gopalji Khimji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 253 of 1960
Judge
Reported inAIR1963Guj328; (1963)GLR780
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 36, 96, 97 and 103; Transfer of Property Act - Sections 111
AppellantAyer Ravji Vasta
RespondentJoshi Gopalji Khimji and anr.
Appellant Advocate M.U. Shah and; S.M. Shah, Advs.
Respondent Advocate K.M. Chhayya, Adv.
DispositionAppeal dismissed
Excerpt:
- - 3. but order 21, rule 36 clearly applies to the facts of the instant case, because this is a case where there is a decree for the delivery of possession, and the property, namely, the shop is in possession of a tenant. when these conditions are satisfied, the court should fix a day for investigating the matter and should summon the party against whom the application is made......ncs. 1 and 2 have compromised the matter on 21sl january 1956. i was not a party to that. i am tenant of defendants nos. 1 and 2. so, actual possession cannot legally be taken from me. but symbolical possession can be taken as provided in order 21, rule 36. so, i submit that fact to your honour and i submit that i will also declare my objection, when nazir will come for taking actual possession from me. so, it may be ofdered that actual possession may not be handed over to him.'so his case was. that he was a tenant of defendants nos. 1 and 2, the mortgagees and that he was not a party to the compromise between the plaintiff and the mortgagees. he, therefore, prayed that symbolical possession should be given to the plaintiff under order 21, rule 36, c. p. code. the learned sub judge,.....
Judgment:

V.B. Raju, J.

1. The facts out of which this appeal arises can be briefly stated as follows : In a redemption suit by 3 mortgagor against the two mortgagees, the appellant, who was 8 tenant of the mortgagees was also joined as a party, but he did not file a written statement. A preliminary decree was passed by consent between the mortgagor and the mortgagees. In the final decree, it was ordered that possession should be delivered to the mortgagor.

2. In the execution of that decree, the appellant who was a tenant of the mortgagees, gave an application praying to the Court that actual possession should not be given, but only symbolical possession. In para 2 of his application he has stated as follows :

'The plaintiff and defendants Ncs. 1 and 2 have compromised the matter on 21sl January 1956. I was not a party to that. I am tenant of defendants Nos. 1 and 2. So, actual possession cannot legally be taken from me. But symbolical possession can be taken as provided in Order 21, Rule 36. So, I submit that fact to Your Honour and I submit that I will also declare my objection, when Nazir will come for taking actual possession from me. So, It may be ofdered that actual possession may not be handed over to him.'

So his case was. that he was a tenant of defendants Nos. 1 and 2, the mortgagees and that he was not a party to the compromise between the plaintiff and the mortgagees. He, therefore, prayed that symbolical possession should be given to the plaintiff under Order 21, Rule 36, C. P. Code. The learned Sub Judge, Bhuj, who heard the application, passed an order for symbolical possession holding that symbolical possession should be delivered under Order 21, Rule 36 and under Order 21, Rule 96, C. P. Code. In appeal, the learned District Judge, Kutch, ordered that actual possession should be delivered and not symbolical possession. The immoveable property in question was a shop. Order 21, Rule 36, C. P. Code, reads as follows:

'Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.'

Order 21, Rule 96, C. P. Code reads as follows:

'Where the property so!d is in the occupancy of a tenant or other person entitled to occupy the same and a certificate In respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the Judgment-debtor has been transferred to the purchaser.'

It is clear that Order 21, Rule 96, C. P. Code, has no application, because it relates to delivery of the property which has been sold by a Court.

3. But Order 21, Rule 36 clearly applies to the facts of the Instant case, because this is a case where there is a decree for the delivery of possession, and the property, namely, the shop Is in possession of a tenant. The learned counsel for the respondent contends that the tenant Is bound by the decree, because he was a party to the suit, and the decree was passed against him. But the decree was by compromise. Under the Civil Procedure Code, after hearing, a decree can be passed under Order 20, Rule 3, C. P. Code. Order 20, Rule 3, C. P. Code, reads as under :

'The judgment shall be dated and signed by the judge in open Court at the time of pronouncing it, and when oncesigned, shall not afterwards be altered or added to, save as provided by Section 152 or on review.'

But the instant case does not fall under that rule, because the suit which was between the plaintiff and the three defendants was compromised only by the plaintiff and the two defendants. Under Order 12, Rule 1,

'Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other parly.'

It is also provided in Rule 6 of Order 12, C. P. Code as follows :

'Any party may at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as the Court may think just.'

It is true that the defendant No. 3 did not file his written statement. But on that ground it cannot be said that he was a party to the compromise between the plaintiff and the defendants Nos. 1 and 2. He is therefore not bound by the decree, although he was a party to the proceedings But if the case is to fall under Order 21, Rule 36, C. P. Code, he has further to prove that he is entitled to continue to occupy the property in question, namely the shop, notwithstanding the decree for redemption, notwithstanding the fact that the mortgage in favour of the mortgagees i.e. defendants Nos. 1 and 2 has been redeemed and notwithstanding the fact that he is a tenant only of defendants Nos. 1 and 2 and not of the plaintiff-mortgagor. In his application, defendant No, 3 relies merely on the fact that he is a tenant of defendants Nos. 1 and 2, the mortgagees. But under Section 111(c) of the Transfer of Property Act, a lease of immovable property determines where the interest of the lessor in the property terminates. In this case, admittedly the lessors of defendant No. 3 were defendants Nos. 1 and 2, and their interest terminated on the redemption of the mortgage, and, therefore, the lease In favour of defendant No. 3 determined on the redemption of the mortgage. Defendant No. 3 does not allege that by virtue, of the provisions contained in Section 76(a) of the Transfer of Property Act he is entitled to continue to occupy the properly notwithstanding the redemption. The first Court held that the case fell under Order 21, Rule 36, C. P. Code. In other words, the first Court held that defendant No. 3 was entitled to occupy the shop as a tenant of the mortgagees. In appeal, the learned District Judge reversed the order passed by the first Court, impliedly therefore holding that defendant No. 3 has no right to continue to occupy the property after the redemption of the mortgage. In view of the provisions of Section 111(c) of the Transfer of Property Act and in view of the fact that the tenant himself had not relied on Section 76(a) of the T. P. Act, I agree with the view taken by the learned appellate Judge that this is a case in which actual possession should be ordered and not symbolical possession, because the tenant although not bound by the decree is not entitled to continue to occupy the property as alleged by him after the decree.

4. It is, however, contended by the learned counsel for the appellant that this is a case to which order 21, Rule 97, C. P. Code is applicable and that in such a case as provided in Order 21, Rule 103, C. P. Code, the remedy is by way of a suit and not by way of appeal. He, there-lore, contends that there Is no appeal to the learned District Judge. Order 21, Rule 97, C. P, Code reads as follows:

'(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed ty any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.'

If this rule is to be applied, there must be a resistance or obstruction to the delivery of possession and there must be an application to the Court complaining of such resistance or obstruction. When these conditions are satisfied, the Court should fix a day for investigating the matter and should summon the party against whom the application is made. In the instant case, an application was made by the tenant agajnst the decree-holders. The application is not by the decree-holders against a person resisting or obstructing the delivery of possession. Therefore, Order 21, Rule 97, C. P. Code, has no application, and the contention of the learned counsel for the appellant Is rejected.

5. I, therefore, hold that the learned appellate Judge was right in ordering the delivery of actual possession of the property. The appeal is, therefore, dismissed with


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