S.N. Deedwania, J.
1. This civil execution second appeal is filed against the judgment and decree, dated March 14, 1979 in the following circumstances:--A decree for rent and ejectment was obtained by respondent No 1 Ramanlal against respondent No. 2 Harish Chandra on 14-10-68. In the suit, the stand of Harishchandra was that he was not the tenant of Ramanlal. Some time after, this decree has been passed, Harishchandra handed over the possession of the suit-property to the appellants. Ramanlal made an application for execution of the decree against Harishchandra and obstruction was made by Dhurilal. On 29-5-69, Ramanlal moved an application under Order XXI, Ruel 97, CPC in the executing court that Dhuri Lal and Harjeemal and other appellants had obstructed the delivery of possession and notices were issued to them. Objections were filed by Dhurilal, wherein it was stated that Ramanlal, decree-holder is the son of Dhurilal and they are the members of undivided joint Hindu family. Dhurilal was not bound by any rent-note executed by Harishchandra in favour of Ramanlal and consequently, also by any decree passed in his favour. The rent-note executed by Harishchandra in favour of Ramanlal was fraudulent and collusive. The property has been in possession of Dhurilal and his tenants. It appears that Dhurilal wanted to say in his objections though he did not state in so many words that Harishchandra was his tenant. The executing court held that obstruction made by Dhurilal and his tenant Harjeemal was malafide. The question of title can not be gone into an application under Order XXI, Rule 97, CPC. The executing court, further held that it can not be said that; the possession of Dhurilal was in his own tight and bonafide. The executing court directed that the possession of the suit-property be delivered to decree-holder Ramanlal. An appeal was preferred by Smt. Rukmani widow of Dhurilal had his daughters. Dhurilal had died. The appellate court held that the possession of the suit-property was taken by Dhurilal from Harish Chandra after a decree had been passed in favour of Ramanlal against Harishchandra. In these circumstances, it could not be said that the appellants were obstructing the decree in their own right. Consequently, the appeal was dismissed.
2. I have heard the learned Counsel for the parties and perused the record of the case carefully.
3. It is argued in the first instance by learned Counsel for the appellants that the courts below were in error in observing that the question of title could not be gone into on an application under Order XXI, Rule 97, CPC. Various amendments made in Code of; Civil Procedure, 1908 came into force on 1-5-77. The trial court decided the application under Order XXXI, Rule 97; CPC on 7-11-77. Therefore, by then, the amended provisions of Order XXI, Rule 97, CPC to Order XXI, Rule 102, CPC all questions including those relating to right, title or interest in the property had to be determined by the court dealing with an application under Order XXI, Rule 97, CPC. This legal position was not disputed by the respondents and in this view, the judgment of the courts below could not be upheld.
4. However, it is argued by learned Counsel for the respondents that iii view of Order XXL Rule 122, CPC no enquiry could be made under Rule 98 and Rule 100, CPC as Harishchandra judgment-debtor has transferred the suit for ejectment by Ramanlal against him. It is argued by learned Counsel for the respondents that nothing in Rule 98 and Rule 100, CPC applies to resistance or obstruction in execution of decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after institution of the suit, in which the decree was passed because of the provision of Order XXI, Rule 102, CPC. This position was, also not seriously disputed; by learned Counsel for the appellants. However, the following, two points were urged:
1. that the judgment debtor has not transferred any property to Dhurilal, who was owner of the property being karta of the joint Hindu family.
2. that any decree obtained by Ramanlal against Harishchandra was not binding on Dhurilal and if, Harishchandra was not the tenant of Ramanlal then it could not be said, that Dhurilal was the transferree pendente lite from Harish Chandra, the judgment debtor. Dhurilal was the owner of the property and Harishchandra was his tenant and, therefore, if the latter, gave the possession of the suit property to the former, it could not be said that the transfer of the possession was pendente lite.
5. On the other hand, it is argued by learned Counsel for the respondents that the transfer of property includes transfer of possession of property and, therefore it could not be said that Harishchandra did not transfer the property to Dhurilal. It is further argued that Harish Chandra was evidently the judgment-debtor, as the decree was passed against him in favour of Ramanlal. Therefore, it could not be said that Dhurilal did not get the possession of the property from judgment-debtor Harishchandra. I have considered the rival contentions carefully. In my opinion, transfer of the possession of the property in the circumstances like this is transfer of the property within the meaning of Order XXI, Rule 102, CPC. It was thus held in the following authorities:
(1) Kanagassabhai Pather v. Poornathamal AIR 1947 Mad 458.
The word 'transferred the property' in Rule 102, should be understood in a wide sense so as to include both 'transfer of title' as well as 'transfer of possession'. It may even be said that primarily the rule refers to transfer of possession whether accompanied by a purported transfer of title or not.
(2) Umajirao v. Ramsaran and Anr. AIR 1954 MB 45
The transfer of the property spoken of in Rule 102 primarily refers to transfer of possession whether accompained by a purported transfer of title or not. Thus for the applicability of Rule 102, it is not necessary that the judgment debtor should have executed any conveyance in favour of the person dispossessed. Nor it is necessary that the judgment-debtor should have assigned or transferred any title to the property to the person claiming the restoration of possession of the property. If the judgment-debtor has done any act which in effect amounts to a transfer of possession of the property to such person, then Rule 102, would apply.
No doubt, it does appear that the transfer of mere possession of the property is not a transfer of any right in the property in certain circumstances. However, the point for determination is that what is the connotation of the word 'transferred the property' in Order XXI, Rule 102, CPC The object of this rule is to prevent an unscrupulous transfer of property from a judgment-debtor with intention to deprive a decree-holder the fruits of his decree. If the phrase 'transferred to property' is not construed to mean the transfer of possession of the property the very object of Rule 102, CPC may some times be defeated. Therefore, these words, have to be given a wide meaning in common parlance. Therefore, in my opinion the transfer of property would include the transfer of possion of the property without transfer of any right or title in the property. Learned Counsel for the appellants drew my attention to Julam Missir and other v. Pratap Missir and Ors. : AIR1958Pat115 , wherein, it was held that the surrender made by a widow did not amount to transfer or assignment of her interest. However, the surrender of ah interest by a widow in the property is different than parting with the possession of the property therefore, this authority is distinguishable.
6. The next question for determination that arises in this appeal is whether it could be said that Dhurilal obtained the possession of the property from Harischandra, the judgment-debtor, who was the tenant of Ramlal. As already stated, it appears that the claim of Dhurilal was that he was the owner of the property being karta and manager of the joint Hindu family. Further, his case appears to be that Harish Chandra was not the tenant of Ramanlal and the rent-note executed by the former in favour of the latter was fraudulant and collusive It is also well settled that any decree obtained by Ramanlal against Harish Chandra is not binding on Dhurilal as he was not a party to that suit in which such a decree was passed It is obvious, therefore that any decree passed in favour of Ramanlal against Harishchandra is not binding on Dhurilal to decide the question whether Harishchandra was the tenant of Ramanlal. If, Harishchandra is held not to be the tenant of Ramanlal, then could it be said that Dhurilal obtained the possession of the suit-property from Harishchandra, the judgment-debtor' The answer appears to be in the negative. In the eye of law, possession would be deemed to be of Dhurilal and Harishchandra was in possession of property only on his behalf. In such circumstances, it would be difficult to say that the possession of the property was Handed over by Harishchandra to Dhurilal. It is a difficult question to decide and no final observations need be made at this stage. Suffice it to say that the executing court had to decide in the first instance, whether C. XXI. Rule 102, CPC was applicable. For that, it has 40 be decided whether Harishchandra was the tenant of Ramanlal or Dhurilal No enquiry appears to have been directed on this question under a mistaken view of law that under Order XXI, Rule 97, CPC an enquiry into the title of Dhurilal could not be made. As already observed, an enquiry as to rule of the appellants has to be made in view of the amended provisions of the Code of Civil Procedure. The objection that no enquiry could be made in view of Order XXI Rule 102, CPC was raised for the first time in this Court on behalf of the respondents and I am of the opinion that this objection can not be decided without going into the question whether Harishchandra was tenant of Ramanlal or of Dhurilal. Another interesting question, which can possibly arise is whether Ramanlal gave the suit-property on rent to Harishchandra on behalf of joint Hindu family; It was thus observed in Mt. Fatima Khanam and Anr. v. Nawab Raza Alt and Anr. AIR 1926 Oudh 610:
Where obstruction is caused by a person who although a purchaser pendente litle, has entered into possession by reason of his having paid oft a prior possessory mortgage, Order 21 Rule 99 is applicable.
The facts in the case before as would be slightly different, Here, the question would be whether Harishchandra transferred the possession to Dhurilal or latter got the possession being landlord of Harishchandra and therefore, deemed to have been always in possession not withstanding that a decree for ejectment was passed against him in favour of Ramanlal. In other words, it could be said that Dhurilal was transferee pendente lite of the property from judgment-debtor Harish Chandra.
7. I, therefore, accept the appeal and remand the case for further enquiry in the light of the observations made above to the executing court. The parties shall be entitled to lead evidence of the question whether Harishchandra was the tenant of Ramanlal or not and allied questions.
8. No order as to costs in the circumstances of the case is made.