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Ganga Ram Vs. Devi Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 174 of 1981
Judge
Reported inAIR1984Raj98; 1983()WLN655
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 21, Rules 35, 97, 98 and 98(1)
AppellantGanga Ram
RespondentDevi Singh and ors.
Appellant Advocate M.C. Bhoot, Adv.
Respondent Advocate P.C. Tatia, Adv.
DispositionRevision dismissed
Cases ReferredIbrahim v. Phoolchand (supra
Excerpt:
.....person, including the judgment-debtor, may resist or obstruct the execution of the decree and the decree-holder is only required to complain of such resistance and dispossession. rule 98. sub-rule (2) lays down that if the court is satisfied that the resistance or obstruction was occasioned without any just cause by judgment-debtor or by some other person at his instigation or on his behalf, it shall direct, when the application of the decree-holder under order 21. rule 97. c. simply resistance or obstruction is required to be complained of and while deciding the application, the court may pass orders in terms of clause (a) or clause (b) of sub-rule (1) of rule 98. under clause (a), the application may either be allowed or dismissed, and, when it is allowed, the court can direct that..........3-10-1980.2. i may state a few relevant facts giving rise to the present revision petition.3. the decree-holder devi singh had obtained a decree for arrears of rent and ejectment against the judgment-debtor shyam sunder from the disputed premises on 29-11-1978 in civil original suit no. 97 of 1978. the execution application was submitted by the decree-holder, in which warrant of possession was issued. the warrant of possession returned unexecuted and on 28-1-1980, the sale ameen reported that the judg-ment-debtor was not found at the spot. gangaram, the present petitioner and one mohatilal were found at the spot, to whom the warrant of possession was read over and they were asked to hand over vacant possession, but they refused and they stated that they are not bound by the decree and.....
Judgment:
ORDER

M.C. Jain, J.

1. This revision is directed against the order dated 31-3-1981, passed by the Munsif City, Jodhpur, in execution case No. 103 of 1979, whereby the petitioner's application under Section 151. C.P.C., dated 4-10-1980 was rejected and it was ordered that warrant of possession be issued against the judgment-debtor in compliance of the court's previous order dated 3-10-1980.

2. I may state a few relevant facts giving rise to the present revision petition.

3. The decree-holder Devi Singh had obtained a decree for arrears of rent and ejectment against the judgment-debtor Shyam Sunder from the disputed premises on 29-11-1978 in Civil Original Suit No. 97 of 1978. The execution application was submitted by the decree-holder, in which warrant of possession was issued. The warrant of possession returned unexecuted and on 28-1-1980, the Sale Ameen reported that the judg-ment-debtor was not found at the spot. Gangaram, the present petitioner and one Mohatilal were found at the spot, to whom the warrant of possession was read over and they were asked to hand over vacant possession, but they refused and they stated that they are not bound by the decree and there is none thereby the name of Shyam Sunder. It was also reported that on the plot in question there existed work shop of wooden furniture and a number of labourers were working there. It was also reported that there is likelihood of breach of peace at the spot. The Sale Ameen prayed for police aid for execution of the warrant. On 25-9-1980 the decree-holder presented an application under Section 151 I.P.C. in which he stated that Mohanlal and Gangaram, the men of the judgment-debtor were present at the spot, who refused to deliver possession and are out for breach of peace, so the decree-holder prayed that the decree may be got executed with the police aid and necessary orders in that connection be passed. On the report of the Sale Ameen and on the application of the decree-holder on 3-10-1980, the Courtpassed an order that a letter may be issued to the Superintendent of police, Jodhpur, to provide police aid to the Assistant Nazir for execution of the warrant of possession under Order 21. Rule 35. C.P.C. on 4-10-1980 the present petitioner Gangaram submitted an application that he and his brothers are in independent possession of the disputed premisses and they resisted and obstructed the delivery of possession when the Sale Ameen went to execute the decree. The decree was obtained collusively against the judgment-debtor. The decree-holder ought to have moved an application under Order 21, Rule 97. C.P.C. and without adjudication of the petitioners' right, they cannot be ousted. It was prayed that the order for providing police aid may be recalled and execution of decree with police aid be also stayed. An affidavit was also filed by the petitioner in support of the application. The decree-holder submitted r'-ply to the application on 24-10-1980. in which he denied the right, title and interest of the petitioner and stated that the petitioner did not mention as to how the petitioner and his brothers are in possession of the plot in question. The averment of the petitioner is vague. The petitioner is in collusion with the judg-ment-debtor and the application, is not made bona fide. It was prayed that the application of the applicant Gangaram be refected and the decree-holder may be put into possession by force. An affidavit of Dalip Singh was filed along with the reply. The learned Munsif, after hearing the parties, rejected the application and ordered for police aid for execution of the warrant of possession.

4. I have heard Shri M. C. Bhoot, learned counsel for the petitioner, and Shri p. C. Tatia, learned counsel for the non-petitioner 1.5.

5. On behalf of the petitioner. Mr. M. C. Bhoot learned counsel for the petitioner, submitted that the application dated 25-9-1980 submitted by the decree-holder, should have been treated to be an application under Order 21. Rule 97. C. P. C. by the learned Munsif and the learned Munsif should have issued notice of that application to the obstructionists and the obstructionists should have been provided an opportunity to present their claim and their claim should have been adjudicated upon in accordance with the provisions of Order 21. Rule 98 and Order 21. Rule 101, C.P.C. Mr. Bhoot submitted that any person, including the judgment-debtor, may resist or obstruct the execution of the decree and the decree-holder is only required to complain of such resistance and dispossession. Any person may include even judgment-debtor, would be clear, if Order 21. Rule 98. C.P.C., is taken into consideration. Rule 98. Sub-rule (2) lays down that if the Court is satisfied that the resistance or obstruction was occasioned without any just cause by judgment-debtor or by some other person at his instigation or on his behalf, it shall direct, when the application of the decree-holder under Order 21. Rule 97. C.P.C. is allowed, that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. Mr. Bhoot submitted that no prayer is required to be made under Order 21, Rule 97 C.P.C. Simply resistance or obstruction is required to be complained of and while deciding the application, the Court may pass orders in terms of Clause (a) or Clause (b) of Sub-rule (1) of Rule 98. Under Clause (a), the application may either be allowed or dismissed, and, when it is allowed, the Court can direct that the decree-holder be put into possession of the property. Instead of passing the order under Clause (a), appropriate order can also be passed under Clause (b). The submission of Mr. Bhoot is that the order of police aid can only be passed under Clause (b) of Sub-rule (1) of Rule 98.

6. I have considered the above submissions of Mr. Bhoot, but I am unable to agree with the same. The application dated 25-9-1980 made by the decree-holder is really an application for fresh issuance of warrant of possession and for execution of that warrant of possession, prayer for providing the police aid has been made. The application has been submitted under Section 151, C.P.C. It is true that the decree-holder in that application has made mention of the fact that Mohanlal and Gangaram refused to deliver possession of the plot and they even were prepared to indulge in breach of peace. In respect of these two persons, the decree-holder stated that they were the men of the judgment-debtor. It is true that in the report of the Sale Ameen the obstructionists stated that there is no decree, against them and they are not bound by the decree, so they refused to hand over possession. The question arises, simply because resistance or obtruc-tion has been brought to the notice of the court, can the application of the decree-holder be treated to be an application under Order 21. Rule 97. C. P. C. In my opinion, the application cannot be so treated, as the decree-holder has stated that the obstructionists were none else other than the men of the judgment-debtor. In order to determine the question under what provisions the application has been made, the application has to be read as a whole and what prayer has been made in the application requires such consideration. It is the prayer in the application on the basis of which it should be seen under what provision the application has been made. Looking to the pr.iyer made by the decree-holder in that application. I am clearly of the opinion that the decree-holder made an application for execution of the warrant of possession after providing police aid and such an application has been moved and can be moved under Section 15, C. P. C. In the bodv of the application, reason has been given as to why police aid is prayed for so mention of the fact of refusal would not mean that the application has been moved under Order 21. Rule 97. C. P. C. Had it been an application under Order 21. Rule 97 C.P.C., prayer would have been made in terms of Clause (a) of Sub-rule (1) of Rule 98, but no such prayer has been made. The decree-holder would have claimed the relief that the application be allowed and the applicant be put into possession of the property and in case he is resisted by the judgment-debtor or at the instance of the judgment-debtor by some one else, then the obstructionists may be detained in Civil prison. I am also unable to agree with the learn-ed counsel for the petitioner that order for police aid can be passed only under Clause (b) of Sub-rule (1) of Rule 98. Clause (a) and Clause (b) are disjunctive. There is a word 'or' occurring between Clause (a) and Clause (b). The order can either be passed under Clause (a) or under Clause (b). Even if the two clauses are read in a conjunctive manner, then it may be found that the order of the police aid can be made by the court under Clause (b), still so far as the application submitted by the decree-holder is concerned. I am unable to agree with Shri Bhoot that the Application is an application under Order 21, Rule 97, C. P. C.

7. Mr. Bhoot next contended that the learned Munsif was in error in ordering the execution of the warrant of possession in compliance of the order dated 3-10-1980 where under police aid was ordered to be provided. He urged that the petitioner, who is in possession of the property, cannot be dispossessed from the property by force, unless the decree-holder submits an application under Order 21, Rule 97. Reliance was placed by Shri Bhoot on a decision of this Court in Ibrahim v. Phoolchand (1960 Rai LW 618).

8. I had an occasion to consider the provisions of Order 21, Rule 97, C. P. C. and subsequent related provisions in Civil Revision Petition No. 419 of 1980 Madanlal v. Hansrai, decided on 14-9-1983 and Smt. Shri Devi v. Kashiram Civil Revn. petn. No. 228 of 1983. Kashi Ram v. Smt. Shri Devi. Civil Revn. Petn. No. 251 of 1983, decided on 15-9-1933 : (Reported in AIR 1984 Rai 94). In these cases I have also considered as to when police aid should be ordered. In these cases it has been held that the third party has no locus standi to move any application under Order 21. Rule 97, C. P. C. and the decree-holder is not bound to move the court under that provision. For the decree-holder the provision of Order 21. Rule 97. C.P.C. is only a permissive provision and not a mandatory or imperative provision. It has been further found that a stranger has two remedies one before dispossession and another after dispossession. After dispossession he can make an application under Order 21, Rule 99, C.P.C. and before dispossession he has an independent remedy of filing a suit for declaration and injunction. If the decree-holder would not have obtained any decree and he, like any other person, would have interfered in the possession of the present petitioner, what the present petitioner would have done The present petitioner in that situation would have only approached the Court by filing a suit and would have claimed the relief of injunction and declaration from the Court and would have obtained interim relief in the form of temporary injunc-tion. If a stranger, who is being threatened with an injury of dispossession, whether in execution of decree or otherwise, can resort to the remedy of filing of the suit.

9. Mr. Bhoot, learned counsel for the petitioner, submitted that a person, who is in possession of the property in his own right and in respect of such property if a collusive decree is obtained, then such a person can be threatened to be dispossessed and even dispossessed in execution of such a decree. Such could not be considered to be the intention of the Legislature and so the decree-holder is required to get an adjudication after complaining resistance and obstruction, else such a decree-holder, who is in collusion with the judgment-debtor would set at naught the provision of Order 21. Rule 97 C.P.C. and such a decree-holder should not be entitled to any relief and the court should be reluctant to extend its help to oust a person, who is in rightful or lawful possession of the property. The submission of Mr. Bhoot on the face of it appears to be plausible, but in my opinion it does not stand scrutiny, if the relevant provisions are properly Analysed and interpreted. If such a protection would have been given to a stranger, the stranger would have been provided with a remedy of submitting an application and getting his right, title and interest decided, but no such remedy has been provided on the contrary remedy has been provided only after dispossession and not before that. It appears that the remedy has not been provided, as the judgment-debtor through some one or the other may resist or obstruct the execution of the decree and such persons may advance spurious claims and a decree obtained from the court may be rendered inex-ecutable in perpetuity and the decree-holder may not be able to get possession of the property in respect of which decree for possession has been obtained. Experience shows that resistance and osbtructions are placed in execution of the decree and provision of Order 21. Rule 97. C.P.C. has been tried to be invoked to stultify the decree or forestall the execution for Years and the decree-holder even can be prevented to realise the fruits of the decree, thereby shaking faith in the credibility of legal system If the strangers are allowed to have any say, then the decree-holders instead of seeking redress through courts of law, would be compelled to adopt extra legal methods to get possession over the property. It may be mentioned that the stranger is not remediless. When the stranger has got an independent remedy.

It is ununderstandable why the stranger should not avail of such a remedy. If a dishonest decree-holder can set at naught, the provision of Order 21, Rule 97, C.P.C., as submitted by Mr. Bhoot, a dishonest judgment-debtor will not allow the decree-holder to get the decree executed by putting up resistance and obstructions in execution of the decree by himself or through some one else. I would not have dealt with the matter at so much length, as the matter is covered by my aforesaid decisions, but the matter has been argued at length by Mr. Bhoot, so I have dealt with his arguments at such a length.

10. Mr. Bhoot then submitted that at least the order of the executing court providing police aid is contrary to the case cited by him so to that extent the order of the executing court deserves to be set aside.

11. It may be mentioned that observations, which have been made bv Jagat Narayan. J., as he then was, in Ibrahim's case (1960 Rai LW 618) (supra) have been considered by me in the cases Madanlal v. Hansram (supra) and Smt. Shri Devi v. Kashiram (AIR 1982 Rai 941 (supra). In Ibrahim's case it appears that the observations were made considering the obstructionist to be a stranger. In the present case, it may be mentioned that the present petition has nowhere mentioned in the application as to how he is in possession of the pro-perty and what is his right, title and interest in the property. On the contrary the decree-holder stated that the obstructionists are the men of the judgment-debtor and the Judgment-dabtor is in collusion with the petitioners. Besides that it is also noteworthy that the observations, which have been made in Ibrahim's case (supra) have no warrant from any provision. On the contrary under Order 21. Rule 35 (3), C.P.C., the officer of the court executing the warrant of possession has a right to do all such things, which are necessary for execution of the decree and it is under this provision, the decree can be executed with the aid of the police. The decree-holder can also invoke the provisions of Section 151. C. P. C. for police aid and in Ibrahim v. Phoolchand's case (supra), it may be pointed out, that the use of force has not been completely prohibited. In the present case the decree-holder as well as the Sale Ameen both have sought police aid, as the obstructionists were found prepared toindulge in breach of peace and as there was likelihood of breach of peace, in my opinion, the executing court was justi-fied in providing the police aid.

12. In Madanlal v. Hansraj (supra), this court has observed as under:--

'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. The 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 I 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 or danger of breach of peace.'

13. In Smt. Shri Devi's case (AIR 1984 Rai 94) (supra), it was observed as under :--

So far as providing of police help is concerned. I may observe that if at the time of executing the decree, there is likelihood of breach of peace, then the officer executing the decree may avail the police assistance directly from the concerned police station or may approach the Court to provide the police aid. The Court may provide police aid only when such a situation, arises at the spot, where there is likelihood of breach of peace. That stage has not reached so far in the present case, as it is not reported by the Nazir that there is likelihood of breach of peace, so at the present stage, of the case, the question of use of force may not arise. However, I may make it clear that the above observation has only been made for the guidance. So far as the impugned order is concerned, the learned Munsif has observed that Smt. Shri Devi would not be put out of possession of the properly forcibly, in case it is found that she is in occupation of the property independently. As that investigation is not required, so it will be open to the learned Munsif to consider the question of providing the police help, if such an eventuality arises.'

14. I may further state that in Ibrahim v. Phoolchand (supra), it has not been considered as to what is the nature of the provisions whether the provision is mandatory or an enabling or permissive one and whether the court can direct the decree-holder to move the application under Order 21, Rule 97, C. P. C. and whether the court can stay the execution proceedings when the decree-holder docs not move an application under the aforesaid provision. Without adverting to these questions, the observations have been made that 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 of Order 21 and a decision is given in his favour on this application after issuing notice to the person obstructing the delivery of possession. The view appears to be per incuriam. Besides that in that case the obstructionist claimed to be in possession of the property as owner. But it is not so in the the present case. Nothing has been shown by the petitioner as to how he is in possession and what is his hight, title and interest in the premies in question.

15. Thus, considering the facts and circumstances of the present case, the executing court was right in providing the police aid in execution of the warrant of possession.

16. No other point survives for con-sideration.

17. In the result, this revision petition has no force so it is hereby dismissed with no order as to costs.


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