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Madanlal Vs. Hansraj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 419 of 1980
Judge
Reported inAIR1985Raj19
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 35, 36, 95, 96, 97, 98, 99 and 100
AppellantMadanlal
RespondentHansraj
Appellant Advocate Biradral Singhvi, Adv.
Respondent Advocate M.C. Bhandari, Adv.
DispositionRevision dismissed
Cases Referred(supra) and Mrs. Ajit Kumar Ray v. Jnanendra Nath Dey
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....orderm.c. jain, j.1. this revision is directed against the order dt. aug. 23, 1980, passed by the munsif, hanumangarh, in execution case no. 21/1976, whereby on the report of the assistant nazir and on the application of the decree-holder, passed an order for issue of warrant of possession and for possession to be delivered to the decree-holder of the premises in question with the aid of police.2. before considering the revision petition on merits, it would be useful and profitable to note some material facts showing the context and the background in which the present revision petition came to be filed.3. the decree-holder hansraj instituted a suit no. 140/1970 for arrears of rent and eviction of the defendant kashiram and others from the suit shop, which was decreed by the munsif on.....
Judgment:
ORDER

M.C. Jain, J.

1. This revision is directed against the order dt. Aug. 23, 1980, passed by the Munsif, Hanumangarh, in execution case No. 21/1976, whereby on the report of the Assistant Nazir and on the application of the decree-holder, passed an order for issue of warrant of possession and for possession to be delivered to the decree-holder of the premises in question with the aid of police.

2. Before considering the revision petition on merits, it would be useful and profitable to note some material facts showing the context and the background in which the present revision petition came to be filed.

3. The decree-holder Hansraj instituted a suit No. 140/1970 for arrears of rent and eviction of the defendant Kashiram and others from the suit shop, which was decreed by the Munsif on 16-4-1973 and on appeal by Kashiram, a compromise decree was passed by the Additional District Judge, Sri Ganganagar, on Sept. 21, 1973, whereby the defendant Kashiram was allowed time up to June 30, 1976, to vacate the shop in question and deliver its possession to the plaintiff. The suit was dismissed against the defendant Ramgopal. As the tenant-judgment-debtor did not vacate and deliver the possession of the suit shop to the decree-holder in terms of the compromise, the decree-holder submitted an application for execution of the decree on Oct. 27, 1976. The judgment-debtor Kashiram filed objections under Section 47, C.P.C., against the execution of the decree. His objections were ultimately dismissed and his revision petition No. 283/1980 was dismissed by this Court on Nov. 22, 1982.

4. During the pendency of the execution application, the present petitioner Madanlal also submitted an application under Order 21, Rule 97, C.P.C., on 1-11-1976, wherein he stated that Kashiram, judgment-debtor, had vacated the shop and delivered possession of the shop to the decree-holder Hansraj on 25-6-1976 and thereafter the decree-holder had inducted him as a tenant on 1-7-1976 on a monthly rent of Rs. 500/-. The learned Munsif, by his order dt. 26-8-1977 rejected the application of Madanlal stating that he has not filed any document showing that the suit premises had been let out to him and so the contents of the application does not appear to be reliable and his application is not fit for acceptance. Consequently, he rejected his application. It appears that Madanlal, then instituted a regular suit against the decree-holder, in which he submitted an application for temporary injunction restraining the decree-holder from interfering in his possession of the suit shop. That application was rejected by the Civil Judge on 25-10-1977 and awarded compensatory costs of Rs. 500/-. An appeal was preferred by him against the order of rejection of the application, but the same was also dismissed.

5. On 19-4-1978 Madanlal again submitted an application before the executing Court under Section 151, C.P.C. He reiterated that he was inducted as a tenant on 1-7-1976, so in execution of the decree the shop in question cannot be ordered to be vacated. That application was also heard and rejected by the learned Munsif on 11-3-1980 and a compensatory cost of Rs. 150/- was awarded to the decree-holder.

6. In execution proceedings, warrant of possession was issued and the Assistant Nazir reported on 25-7-1980 that Kashiram was not found at the spot and Madanlal resisted the execution of the decree and stated that the warrant is not against him. He further reported that tension has arisen at the spot and there is likelihood of breach of peace, so he sought an order for police assistance. The decree-holder had j also submitted an application on 18-8-1980 that Madanlal's objections have already been rejected with compensatory costs and the Nazir has now reported obstruction by Madanlal. Madanlal has no independent right to remain in possession of the shop in question. The judgment-debtor in collusion with Madanlal is placing obstruction in the execution of the decree and harassing the decree-holder. It is also very likely that the judgment-debtor may go away after locking the shop. The decree-holder, therefore, prayed that the Assistant Nazir may be directed to effect the delivery of possession after breaking open the lock, in case the shop is found locked and police aid may be provided for in execution of the warrant of possession. It is on the aforesaid report of the Assistant Nazir and the application of the decree-holder, the impugned order was passed by the learned Munsif, aggrieved against which Madanlal has preferred this revision petition.

7. I have heard Shri B.M. Singhvi, learned counsel for the petitioner, and Shri M. C. Bhandari, learned counsel for the decree-holder-respondent.

8. . Mr. B. M. Singhvi, learned counsel for the petitioner, submitted that looking to the scheme of the provision contained under Order 21, Rule 35 and Order 21, Rules 97 and 98, C.P.C. a person in possession of the property cannot be put out of possession in execution of the decree, unless it is found that he is in possession on behalf of the judgment-debtor and is bound by the decree. If any obstruction is reported to the Court, the Court is bound to proceed to inquire into the matter and then adjudicate as to whether the resistance and the obstruction was occasioned for any just cause by the judgment-debtor or by some other persons at his instigation or on his behalf or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding. It is only when such an adjudication is recorded that the decree-holder can be ordered to be put in possession of the property, but where such an adjudication is not recorded and it is found after inquiry that resistance or obstruction has not been caused by the judgment-debtor or by some other persons at his instigation or on his behalf, no order can be passed for effecting delivery of possession in execution of the warrant of possession. Under Order 21, Rule 35, C.P.C., only such person can be removed from the property, who is bound by the decree and who refuses to vacate the property. The provisions of Rules 35 and 98 go to indicate that decree can be proceeded only against the person, when the executing Court adjudicated that the person in possession is bound by the decree and is liable to be removed in execution of the decree. Mr. Singhvi submitted that the obstruction by the present petitioner had been reported not only by the Assistant Nazir, but by the decree-holder, as well, so the decree-holder's application dt. 18-8-1980 should have been treated to be an application under Order 21, Rule 97, C.P.C., and the executing Court should have proceeded to issue notice to the present petitioner and thereafter it should have proceeded to adjudicate upon the application in accordance with the provisions contained in rules subsequent to Rule 97. Mr. Singhvi also urged that there are no rules for providing police help and the order passed by the executing Court to execute the warrant of possession with the aid of the police, is not in accordance with law and is without jurisdiction,

9. It has to be seen whether the contentions advanced by Shri Singhvi, deserve acceptance.

10. The first question that arises for consideration, is whether the third party or stranger to the decree has any locus standi to come before the executing Court and whether he has got any right to be heard under Section 151, C.P.C. Under Order 21, Rule 97, C.P.C., a third party or a stranger has no right to move or approach the Court. The application under the said provision, is maintainable only by the decree-holder. Rule 97 provides that when the execution of a decree is resisted or obstructed by any person in obtaining possession of the property, the decree-holder may make an application to the Court complaining of such resistance or obstruction. It does not provide that a third party or a stranger may invoke this provision and get his right to remain in possession of the property adjudicated by the executing Court. It is only under Rule 99 that when any person other than the judgment-debtor is dispossessed of immoveable property by the holder of a decree for the possession of such property, he may make an application to the Court complaining of such dispossession and the Court is required to proceed to adjudicate upon the application in accordance with the provisions contained in the Rule 98 onwards. There is no rule or provision conferring any right on a person to move the Court and get his right adjudicate to remain in possession of the property before he is put out of possession in execution of decree for possession.

11. Mr. Singhvi referred to a decision of the Sikkim High Court in Ram Chandra v. Manmal Singhi, AIR 1983 Sikkim 1. In that case the question was that if in the course of the execution of a decree for the delivery of any immovable property, a person in possession of the property, who is not a party to the decree, prefers an objection on the allegation that he is not bound by the decree, can the executing Court reject the application on the ground that such an application is not maintainable and continue to proceed with the execution? The learned Judge considered the relevant provisions in the Civil P.C. and observed that the absence of an express provision enabling a party to move the Court cannot invariably indicate the absence of the right to do so. If law grants a right, the right to move the Court to enforce that right must be implied. Otherwise a party is to be regarded to have no right to apply. Reliance was placed on the observations of Vivian Bose, J. in the decision of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425, that our laws of procedure should be construed, wherever that is reasonably possible, in the light of the principle of natural justice. After placing reliance on some case law the learned Judge concluded as under : --

'The executing Court in this case did not hold that the revision petitioner was bound by the decree and, therefore, he was wrong in ordering execution case to proceed, which he could do only if he could hold the revision petitioner to be bound by decree. That being so, the executing Court should have stayed its hands in the matter leaving it to the decree-holder to proceed under Rule 97 or in such other manner as he might have thought fit. As the executing Court has no jurisdiction to proceed with the execution case when a third party in possession objects to the execution, unless he holds the objector to be bound by the decree, the executing Court in the case at hand exercised its jurisdiction illegally and with material irregularity to attract the revisional jurisdiction of this Court.'

In that case the executing Court held that the application by an obstructionist cannot lie.

12. With all due deference I am unable to agree with the view taken by the learned Judge in Ram Chandra Verma's case (supra). It may be mentioned that the learned Judge placed reliance on a Division Bench decision of the Madhya Pradesh High Court in Bhagwat v. Kasturi, AIR 1974 Madh Pra 26. The view taken by the Madhya Pradesh High Court in that decision came up for consideration before the Full Bench of that High Court in Smt. Usha Jain v. Manmohan Bajaj, AIR 1980 Madh Pra 146. The view taken by the Division Bench in Bhagwat v. Kasturi's case (supra) did not find favour with the Full Bench and it was expressed that the view taken in that case cannot be upheld as correct and the Full Bench approved the view taken in Ramgulam v. Mahendra Kumar, 1972 MPLJ 254. It was held in Smt. Usha Jain's case (supra) that the provision of Order 21, Rule 97 is only a permissive provision and not a mandatory one. An inquiry at the instance of third party in possession is contemplated only under Order 21, Rule 100 after he was dispossessed and not before it, and it was observed 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. This Rule is 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, C.P.C. Executing Court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue 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. If the executing Court were to stay its hands till investigation into a third party's claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claims. 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.' It was further held as under: --

'The omission by the executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated prior to his disposession, his only remedy then being under Order 21, Rule 100 after dispossession. 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.

After amendment of Order 21, C.P.C. in 1976 a full investigation into the question of title is contemplated under Rule 97 and not summary enquiry. Thus it would cause greater hardships to the decree-holder, if every claim by the third-party is to be investigated by the executing Court.'

I am in respectful agreement with the view taken by the Madhya Pradesh High Court in Smt. Usha Jain's case (supra).

13. In Ibrahim v. Phoolchand, 1960 Raj LW 618, Ibrahim filed an objection claiming to be in possession of the house as ownerand praying that warrant for delivey of possession should not be issued without investigating his claim. That application was rejected by the executing Court on the ground that it is not open to a third party to apply for investigation of its claim and that its claim could only be investigated upon an application by the decree-holder made under Order 21, Rule 97, C.P.C. Ameen then went to the spot to deliver possession to the decree-holder. It was resisted by Ibrahim. Thereupon the Court passed an order that possession be delivered to the decree-holder by the use of force after taking the assistance of the police. Ibrahim was present when this order was passed and he filed another application for investigation of his claim purporting to be under Section 151, C.P.C., read with Order 21, Rule 97, and that application was rejected by the learned Civil Judge on 12-1-1959. Jagat Narayan, J., as he then was, observed that so far as the orders passed by the learned Civil Judge rejecting the petitioner's application on 11-9-1958 and 12-1-1959 are concerned no exception can be taken to them and it was further observed that,--

'Before an investigation is made under Rule 97, 0.21 it is necessary that an application should be made to the Court by the decree-holder or auction purchaser. No investigation can be made on application of a third party which claims to be in possession. A third party is only entitled to apply for investigation of its claim after it has been dispossessed, provision for which has been made in Rule 100 of Order 21. In this connection the following decisions may be referred to: Jagannath v. Khaja Faisuddin, AIR 1935 Nag 212, Nityananda v. Pala Devi, AIR 1952 Orissa 120 (FB), Ouseph George v, Varkey, AIR 1953 Trav-Co 123, Digambar Rao v. Dhondu, AIR 1953 Hyd 4, and Premji v. Mithabhai, AIR 1955 Kutch 17.

14. In Dargah Committee v. Abdul Gaffor 1977 WLN 638 : (AIR 1978 Raj 129) the obstructionist moved an application under Section 151, C.P.C., praying that he is not bound by the decree and that he is in possession of the shop in question in his own right. The learned executing Court stayed the execution of the decree and directed the decree-holder to file an application under Order 21, Rule 97, C.P.C. It was held that the executing Court has absolutely no jurisdiction to direct the decree-holder to file an application under Order 21, Rule 97, C.P.C. and the question whether the obstructionist is in possession of the suit property in his own right or through the judgment-debtor would be decided in the investigation which would follow on an application under Order 21, Rule 97, C.P.C. if decree-holder so chooses to make. It was further observed in that case that an application under Section 151, C.P.C. made by an obstructionist, can only be an information to the execution Court that he claims himself to be in possession of the suit property in his own right and not through the judgment-debtor. Nonetheless the executing Court can entertain an application under Order 21, Rule 97 C.P.C. only by the decree-holder, and not by the person who claims to be in possession of the suit property in his own right. However, in that case it was also observed that it was open to the executing Court to take notice of the report of the Sale Ameen or to pass such order as it thought proper in the circumstances of the case. It could have refused to issue any process for the execution of the decree, or could have declined to pass orders for giving forcible possession to the decree-holder. The order of the executing Court giving direction to the decree-holder to file application under Order 21, Rule 97, C.P.C., and to stay execution of the decree till disposal of that application, was set aside.

15. It would thus appear that the view of this Court is that the stranger to the decree, who claims to be not bound by the decree, has no right to approach the Court and to get his claim or objection adjudicated upon. That stage will come only when he is dispossessed.

16. I may mention here that the maxim 'ubi jus ibi remedium', which has been pressed into service by the learned Judge in the Sikkim case (AIR 1983 Sikkim 1) (supra), cannot be considered to be disregarded, when such right to move an application under Order 21, Rule 97, C.P.C., by an obstructionist, is not conceded. If anybody invades anybody's right, then the person, whose right had been invaded or is threatened to be invaded, has got an independent remedy and that independent remedy is by way of a suit. If there is right to remain in possession of the property, then the person can enforce that right through a regular suit and restrain the decree-holder from proceeding to execute the decree. In this manner the principle 'ubi jus, ibi remedium', is not in any way affected, because the obstructionist has a right to institute a regular suit, as has been observed in the Full Bench decision of the Madhya Pradesh High Court (AIR 1980 Madh Pra 146) (supra). Neither principle of natural justice can be invoked by an obstructionist for maintaining an application under Order 21, Rule 97, C.P.C., in view of the statutory provisions beginning from Order 21, Rule 97, C.P.C. There are clear and categorical provisions conferring right to apply. Under Order 21, Rule 97, C.P.C., right to apply is conferred on the decree-holder or the auction-purchaser and under Order 21, Rule 99, C.P.C., right to apply has been conferred on any person, other than the judgment-debtor, who has been dispossessed from the immovable property by the decree-holder or the auction-purchaser.

17. In Dargah Committee's case (AIR 1978 Raj 129) (supra), this Court has observed that when resistance or obstruction is reported by the Sale-Ameen, the executing Court could have refused to issue any process for execution of the decree or could have declined to pass any order for giving forcible possession to the decree-holder and simultaneously in conformity with the view taken in Ibrahim v. Phool Chand's case (1960 Raj LW 618) (supra), it has been observed that the executing Court has absolutely no jurisdiction to direct the decree-holder to file an application under Order 21, Rule 97, C.P.C. From these observations, it would appear that if the decree-holder does not move an application under Order 21, Rule 97, and the Court stay its hands to proceed with the execution of the decree in view of the report of the Nazir, a stalemate or deadlock would arise in the judicial proceedings, which, to my mind, can never be contemplated. A judicial proceeding is a continuous process, ultimately culminating into an order in favour of one party and against another party. Thus, the law requires to be interpreted in a manner, so that there may be continuous flow in the conduct of the judicial proceeding. When the provision of Order 21, Rule 97, C.P.C. is not imperative for the decree-holder, he may apply or he may not apply, it would mean that it is up to him to make such an application under Order 21, Rule 97, C.P.C., or not to make such an application. A valuable right vests in the decree-holder to proceed to execute the decree and obtain the relief granted to him under the decree. If by the very grant of any decree in favour of the decree-holder, anybody's rights are affected, it is open to that person to challenge that decree and seek a declaration that the decree is not binding on him and as such is inexecutable against him and in execution of that decree, he cannot be put out of the property. Such a consequence arises, if the view taken by the Full Bench of the Madhya Pradesh High Court, is adopted and the same view has found favour with and I have expressed my respectful agreement with the same. It appears that the full Bench of the Madhya Pradesh High Court and the view taken by this Court in Ibrahim's case (supra) was not brought to the notice of the learned Judge of the Sikkim High Court in Ram Chandra Verma v. Manmal Singh, (AIR 1983 Sikkim 1) (supra).

18. Mr. B.M. Singhvi, learned counsel for the petitioner, referred to the decision of the Kerala High Court in Neelakantan Narayanan v. Kesavan Padmanabhan, AIR 1960 Ker 100. In that case earlier the obstructionist filed an obstruction petition and ultimately that petition was dismissed by the High Court on the ground that, being a stranger to the suit, he had no right to approach the Court except under Order 21, Rule 100, Civil P. C., that is to say on the ground, that he could file the obstruction petition only after dispossession by the Amin. But later on in the proceedings the decree-holder himself made an application in pursuance of which notice was issued to, the revision-petitioner to show cause why his obstruction should not be removed and the property delivered to the decree-holder. Without inquiring into the petition, the executing Court dismissed the obstruction-petition. The obstructionist went in revision. It was observed that when an application is made by the decree-holder under Order 21, Rule 97, then the Court is bound under Clause 2 of Rule 97 to issue notice to the person from whom obstruction is expected to hear his objections, investigate the same, and make a decision in the matter. The obstruction petition in that case was dismissed on the ground that it is competent only after actual dispossession. This authority, in my opinion, does not help the revision-petitioner, as in that case it has been found that there was an application under Order 21, Rule 97, C.P.C. It has to be seen whether the application dt. 18-8-1980 presented by the decree-holder in the present case, can be treated to be an application under Order 21, Rule 97, C.P.C.

19. Mr. Singhvi, further referred to a decision of the Delhi High Court in Mahabir Pershad v. Delhi Traders Pvt. Ltd. AIR 1977 Delhi 45. It may be mentioned that in that case reliance was placed on a decision of the Madhya Pradesh High Court in Bhagwat Narayan Dwivedi v. Kasturi, AIR 1974 Madh Pra 26, which now stands overruled by the Full Bench decision of the Madhya Pradesh High Court in Smt. Usha Jain v. Manmohan Bajaj, (AIR 1980 Madh Pra 146) (supra). In Mahabir Prasad's case (supra) as well, the decree-holder mentioned in the application that certain persons were holding the property on behalf of the defendants and were, therefore, bound by the decree for possession. The executing Court issued notices to those persons and those persons submitted their objections, in which they alleged that they were not holding the property on behalf of the judgment-debtors and so were not bound by the decree and were not liable to dispossession in the execution of the decree. The Court upheld their objections and dismissed the application. It was observed that the decree-holder himself invited the investigation into the matter and the recording of a finding on the subject. It was further observed that the Court was right in issuing the notices to the persons and enquiring into the matter for arriving at the conclusion it hasarrived at, and, the application of the decree-holder may be treated as an application under Rule 97 of Order 21 although it is described as an application under Order 21, Rule 35, C.P.C. It would appear that the decree-holder's application was treated to be an application under Order 21, Rule 97, C.P.C.

20. Mr. Singhvi also referred to an unreported decision of this Court in S. B. Civil Revn. Petn. No. 242 of 1979 --Thansingh v. Kewalchand, decided on 3-9-1980. In that case the executing Court held the application by the obstructionist to be not maintainable and that he shall have an opportunity of hearing when an application under Order 21, Rule 97, C.P.C., is moved by the decree-holders. It was also observed that the progress-server has reported that the property is in the possession of a third person, therefore, further proceedings in execution are stayed till the decree-holders move an application complaining of such resistance or obstruction. In the revision petition filed by the decree-holders, this Court observed,--

'Once, a decree-holder is obstructed in the delivery of the possession to him of the disputed property, there is not least doubt that the Court has to stay the execution and further proceedings in the execution can only he taken when a further application is made by the decree-holder either under Order XXI. Rule 35, C.P.C. or under Order XXI Rule 97, C.P.C. To that extent, I find no illegality in the order of learned trial Court. However, in my opinion, the trial Court was in error in directing the decree-holders to move an application under Order XXI. Rule 97, C.P.C.'

It was further observed : --

'I have considered these authorities. They only lay down a sound rule that whenever, an obstruction is made in the delivery of possession of the disputed property by a third party, who is not bound by the decree, normally, the executing Court should proceed only when an application under Order XXI. Rule 97, C.P.C. is made to it by the decree-holder. In exceptional circumstances, the Court may come to a conclusion that such a person obstructing the delivery of possession was bound by the decree and, therefore, could be proceeded with under Order XXI, Rule 35, C.P.C. In my opinion, such an order, under Order XXI, Rule 35, C.P.C. should not be lightly made unless a decree-holder can conclusively establish that the obstruction is by one who is bound by the decree. However, it is for the executing Court to decide the question when a proper application is made by the decree-holders before it complaining of the obstruction by Kewalchand.'

Reference was made therein by Deedwania. J., as he then was, to the cases,-- 'Dargah Committee v. Abdul Gafoor, (AIR 1978 Raj 129) (supra); Ibrahim v. Phoolcnand 1960 Raj LW 618 (supra); Mahabir Prasad v. Delhi Traders Private Ltd. (AIR 1977 Delhi 45) (supra) and Bhagwal Narayan Dwivedi v. Kasturi (AIR 1974 Madh Pra 26) (supra).'

21. In that case a right has been conceded to the decree-holder that he can move the Court under Order 21, R, 35, C.P.C., and in case the Court feels prima facie that the decree is not binding on the person in possession and the decree-holder does not make an application under Order 21, Rule 97, it has not been considered how the deadlock is to be resolved. In my opinion the Court will have to proceed with the execution of the decree and the obstructionist may either suffer dispossession and move an application under Order 21, Rule 99, C.P.C., thereafter or resort to the remedy by regular suit.

22. In Ram Swarup v. Mahabir Prasad, AIR 1969 All 440, cited by Shri Singhvi, again it has been observed that for the applicability of Rules 97 and 99 of Order 21, C.P.C., what is required is an application by the holder of a decree complaining of resistance or obstruction in obtaining possession by a person. Hence when such an application has been made, the Court has no option but to proceed in accordance with the procedure laid down in Rule 97(2), and, the prayer for police aid would not change its basic nature since the aid of the police is sought only because of the resistance and obstruction made by a person in obtaining possession. So the whole question is whether the aforesaid application of the decree-holder can be treated to be an application under Order 21, Rule 97, C.P.C.? Before dealing with that question, I may refer one more decision cited by Shri Singhvi.

23. In Gopal Chandra Sadhukhan v. Sheikh Jamsed, AIR 1965 Cal 51, it has been held that a third party or a person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor or a person claiming bona fide to have right to be in such possession -- none of these classes of persons have locus standi to make an independent application under the provisions of Order 21, Rule 99, C.P.C. It was further observed that on construction of the Rules 97 to 99, it appears that if there is resistance to delivery of possession to the decree-holder or purchaser, it is only they can apply under the provisions of Order 21, Rule 97.

24. If the legislature had intended, it could have granted a right to the obstructionist to maintain an obstruction petition or could have made it imperative for the decree-holder to move an application against the obstructionist or could have empowered the Court to give direction to the decree-holder to move such an application if it feels that the obstructionist without being heard could not be proceeded against. But no such provision has been enacted obviously for the reason that the decree will never be allowed to be executed and hurdles will be created in the execution of the decree by raising false and frivolous claims and rights to continue to remain in possession of the property asserting that the obstructionist is not bound by the decree.

25. From the consideration of the caselaw, referred to above, the legal positionthat emerges is that the provision of Order 21, Rule 97, C.P.C., is only a permissiveprovision and not a mandatory one and theexecuting Court cannot compel or directthe decree-holder to move an applicationunder Order 21, Rule 97 and a stranger to adecree for dispossession has no locusstandi to move the executing Court, eitherinforming it that he is in possession of theproperty in his own right and as such notbound by the decree or to claiminvestigation from the Court into thequestion of his right to continue to remainin possession of the property. Even whenobstruction is reported by the officerexecuting the warrant of possession, still itis up to the decree-holder to move anapplication under Order 21, Rule 97, C.P.C., ornot.

26. Mr. B.M. Singhvi, learned counsel for the petitioner, emphatically contended that the application dt. 18-8-1980 for all intents and purposes, should be treated to be an application under Order 21, Rule 97, C.P.C., for in that application it has been stated that Nazir has reported that Madanlal is putting up resistance and obstruction in the execution. It may be mentioned that this application cannot be considered to be an application under Order 21, Rule 97, C.P.C., and the learned executing Court was right in issuing of warrant of possession. 1 shall be presently examining the question of legality or validity of the order of police help passed by the executing Court. The executing Court proceeded to issue warrant of possession considering that objections filed by Madanlal have earlier been rejected and even special costs had been awarded to the decree-holder. While giving narration of facts leading to the present revision petition, it has been stated that the objections filed by the present petitioner were rejected on merits not only once, but twice, although it can be said that those objections were rejected without holding any regular inquiry or conducting any regular investigation, but ex facie those objections had been found to be untenable. In the first order the executing Court considered that the objector has not filed any document, which may show that he has been inducted as a tenant and the allegation made by him is not in any way acceptable. In the second order the matter was examined in little detail. It was noticed that the present petitioner after rejection of his first objection, filed a regular suit and could not get any relief by way of temporary injunction in that suit. His application for grant of temporary injunction restraining the decree-holder to proceed to execute the decree, was rejected on Oct. 22, 1977, and the same was upheld in appeal. In that suit, while deciding that application and while deciding the second objection filed by the present petitioner, special costs were awarded. It is in this background the application dt. 18-8-1980 has to be construed. Objection by the present petitioner was already brought to the notice of the Court and the matters were contested by the decree-holder. The objector was heard and adverse order was passed against him. It is in that situation, the decree-holder came with a prayer that the warrant of possession may be got executed and the police aid may be provided and in case the premises are found locked, possession may be ordered to be delivered after breaking open the lock. The prayer in the application is essentially a prayer to proceed with the execution of the decree in a particular manner and is not a prayer to investigate into the question as to whether the obstructionist is bound by the decree and is liable to be dispossessed in execution of the decree. The obstructionist's assertion on the face of it appears to be preposterous that the tenant Kashiram handed over the vacant possession of the shop on 25-6-1976 and he was inducted on 1-7-1976 on monthly rent of Rs. 500/-, p.m. The record of the executing Court shows that Kashiram continued to contest the execution and he even approached this Court and his revision petition was dismissed as late as on Nov. 22, 1982. The present petitioner has not been prima facie able to convince the Court that his allegation is worth investigation. Not only that after rejection of his first objection, he has even availed of the regular remedy by way of suit. In the context of these facts, in my opinion, the application dt. 18-8-1980 cannot be treated as an application under Order 21, Rule 97, C.P.C.

27. Mr. B.M. Singhvi further contended that the order of the police aid has no warrant in law, so it should be quashed. He pointed out that General Rules (Civil) make no provision for providing, any police aid in execution of decree for possession. Much reliance has been placed by him, in support of his contention on a decision of this Court Ibrahim v. Phoolchand (1960 Raj LW 618) (supra) and the two decisions of the Calcutta High Court in Gopal Chandra Sadhukhan v. Seikh Jamsed, (AIR 1965 Cal 51) (supra) and Mrs. Ajit Kumar Ray v. Jnanendra Nath Dey, AIR 1975 Cal 433. It may be mentioned that so far as the Calcutta cases are concerned, there is a Rule 208 of the Civil Rules and Orders, framed by the Calcutta High Court. Police help in execution of the decree can be provided, if necessary conditions of that Rule are fulfilled. The decree-holder is required to state in his application the full reasons thereof supported, if required, by an affidavit, and, even after the submission of that application, the Court may examine the decree-holder or such other person as it thinks fit for coming to a decision as to whether or not there is any necessity for police help. It is only in grave situation that the step of police help should be taken by the Court. It has also been observed in Mrs. Ajit Kumar's case (supra) that the application for the police help is a discretionary mutter to the judicial officer who deals with it. No such rule has been pointed in General Rules (Civil). In Ibrahim's case (supra) however, Jagat Narayan. J.. as he then was, observed that if the Ameen reports that delivery of possession is obstructed by any one other than the judgment-debtor the Court cannot pass an order directing delivery of possession by the use of force unless the decree-holder moves an application under Rule 97, Order 21 and a decision is given in his favour on his application after issuing notice to the person obstructing the delivery of possession. What has been observed in Ibrahim's case (supra) is that before ordering delivery of possession by use of force proceedings under Order 21, Rule 97, C.P.C. should be adjudicated upon in favour of the decree-holder. Use of force is not prohibited, as such. Then only question, which is to be examined, is whether in the circumstances of the present case order of police help was well warranted or justified or not? As already considered, the applications of the present petitioner have not only been rejected on the ground that they are not maintainable, but have been rejected on merits and in the view, which 1 have taken, it is not imperative for the decree-holder to move an application under Order 21, Rule 97, C.P.C. The decree-holder can ultimately pray for police help, when there is likelihood of danger of breach of peace. The Assistant Nazir in the present case had reported that the atmosphere had become tense and there is likelihood of breach of peace. In such situation on a prayer by the decree-holder, the executing Court was justified in ordering the police help. It is noteworthy that under a compromise decree, almost three years' time was allowed to the tenant for delivery of vacant possession of the premises to the decree-holder and it is unfortunate that the decree-holder has not been able to obtain possession of the suit premises in execution of the decree till now. Somehow or the other, impediments were put in execution of the decree and ten years' time has elapsed. It is also unfortunate that this revision petition took almost three years' time for being disposed of.

28. No other point survives for consideration.

29. In the light of what I have considered above, the revision petition is devoid of any force, so it is hereby dismissed with costs. In the circumstances of the case it would be further justified to award compensatory cost, which. I assess at Rs. 300/- (rupees three hundred). The executing Court is further directed to execute the decree expeditiously.


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