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Gopal Chandra Sadhukhan Vs. Sheikh Jamsed and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3080 of 1963
Judge
Reported inAIR1965Cal51,68CWN806
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 97, 98 and 99
AppellantGopal Chandra Sadhukhan
RespondentSheikh Jamsed and anr.
Appellant AdvocateAmal Kumar Ghosal, Adv.
Respondent AdvocateChandra Nath Mukherjee, Adv. for Oppsite Party (No. 1)
Cases ReferredBhupesh Chandra Dutta v. Dr. M.N. Bose
Excerpt:
- .....to me, on construction of the rules, that only they can apply under the provisions of order 21 rule 97. rule 98 deals with two classes of cases viz., where the obstruction is occasioned without just cause (1) by the judgment-debtor or (2) by some other person at his instigation, but rule 99 deals with two cases of claims in good faith, viz., (1) persons claiming on their own account and (2) person claiming on account of some other person other than the judgment-debtor. in my opinion rule 99 is not an independent provision but is dependent on rule 97. though the procedural part as laid down in sections 229 and 269 under the code of 1859 and in sections 331 and 335 of the codes of 1887 and 1882 were omitted from rule 99 of order 21 and the decisions under the old codes discussed.....
Judgment:
ORDER

C.N. Laik, J.

1. This Rule was obtained at the instance of the decree-holder and is directed against the Minsiff's order passed on an application filed by Opposite Party No. 1 under the provisions of Order 21 Rule 99 of the Code of Civil Procedure.

2. The petitioner obtaining a decree for possession against Md. Omar (Opp. Party No. 2) In a suit for eviction in respect of a room which was the subject-matter of the tenancy started 1he execution on September 18, 1959. The petitioner was resisted by Opposite Party No. 1 and the Writ of possession was returned unserved. On November 9, 1959 the decree-holder petitioner filed two applications--one, praying for police help; and another, for possession, after breaking the padlocks of the door, if necessary on which inter alia the following order No. 2 was passed on November' 9, 1959 by the learned Munsiff:

'The petition praying for Police help will be allowed on Rs. 37/6/- being deposited by 19-11-59. The petition praying for breaking open the padlock be put up on 19-11-59.'

After the amount of cost was deposited, the learnedMunsiff passed an order (No. 3) on 12th November, 1959directing Police help without waiting upto the 19th anddirecting the breaking of the padlock, if necessary. Thewrit of delivery of possession was directed to be issued,fixing November 28, 1959 for return. These two ordersdated 9th and 12th November were passed admittedlywithout notice to the Opposite Party No. 1, who filedthe application as stated, under the provisions of Order 21 Rule 99 of the Code of Civil Procedure, alleging that hewas a monthly tenant under the judgment debtor, Md.Omar, (the Opposite Party No. 2 herein) 'in his own right'and that he was holding the suit premises 'on his ownaccount', 'in good faith' and independently of the judgment-debtor. On evidence, the learned Munsiff by hisorder dated June 28, 196.3 (order No. 56) not only allowed the said application under Order 21 Rule 99 of the Codebut refused the1 decree-holder's prayer for possessionthrough the Police help. The decree-holder petitionerthrough his learned Advocate Mr. Amal Kumar Ghoshal,is now challenging only the said order of June 28, 1963in the instant Rule, principally on the 'ground that theOpposite Party No. 1, even assuming (though not admitting) that he is a third party or a bona fide claimant, hasno locus standi to maintain the application under Order 21 Rule 99 of the Code. Mr. Ghandra Nath Mukherjee, thelearned Advocate for Opposite Party No. 1, is equallyemphatic in his submissions for acceptance of the viewopposite.

3. There being, as stated, no direct authority onthe point and for appreciating the few decisions citedat the Bar it would be appropriate to notice the development of the law beginning from the Code of Civil Procedure, 1859 Sections 229 and 269 of which, run as follows :-

'CCXXIX: If it shall appear to the satisfaction of the Court that the resistance or obstruction to the execution of the decree has been occasioned by any person, other than the defendant, claiming bona fide to be in possession of the property on his own account or on account of some other person than the defendant, the claim shall be numbered and registered as a suit. Between the decree-holder as plaintiff and the claimant as defendant, and the court shall, without prejudice to any proceedings to which the claimant may be liable under any law for the time being in force for the punishment of such resistance or obstruction, proceed to investigate the claim in the same manner and with the like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of this Act, and shall pass such order for staying execution of the decree, or executing the same, as it may deem proper in the circumstances of the case.'

*** *** *** *** *** 'CCLXIX: If it shall appear that the resistance or obstruction to the delivery of possession was occasioned by any person, other than the defendant, claiming right to the possession of the property sold as proprietor, mortgagee, lessee, or under any other title, or if in the delivery of possession to the purchaser any such person claiming as aforesaid shall be dispossessed the Court, on the complaint of the purchaser, or of such person claiming as aforesaid, if made within one month, from the date of such resistance or obstruction Order of such dispossession as the case may be, shall inquire into the matter of the complaint and pass such order as may be proper in the circumstances of the case. The order shall 'not be subject to appeal, but the party against whom it has given shall be at liberty to bring a suit to establish his right at any time within one year from the date thereof.'

4. The provisions of the said Section 229 after being modified, appeared as Section 331 In the Civil Procedure Code of 1877 repeated in the Code of 1882. Similarly, Section 269 of the Code of 1859 as modified became Section 335 of the Codes of 1877 and 1882. Sections 229 and 269 substantially correspond to Sections 331 and 335 respectively. Sections 331 and 335 of both the Codes of Civil Procedure of the years 1877 and 1882 are in similar terms and they are as follows:

'331: If the resistance or obstruction has been occasioned by any person other than the judgment-debtor 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, the claim shall be numbered and registered as & suit between the decree-holder as plaintiff and the claimant as defendant;

(a) and the Court shall, without prejudice to any proceedings to which the claimant may be liable under the Indian Penal Code or any other law for the punishment of such resistance or obstruction, proceed to investigate the claim in the same manner and with the like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of Chapter V,

(b) and shall pass such order as it thinks fit for executing or staying execution of the decree.

Every such order shall have the same force as a decree, and shall be subject to the same conditions as to appeal or otherwise.'

*** *** *** *** *** '335: If the purchaser of any such property isresisted or obstructed by any person, other than thejudgment-debtor claiming in good faith a right to thepresent possession thereof, or if, in delivering possession thereof, any such person is dispossessed, the court,on the complaint of the purchaser or the person so dispossessed, shall inquire into the matter of the resistance,obstruction or dispossession, as the case may be, and pass order thereon as it thinks fit.

The party against whom such order is passed may institute a suit to establish the, right which he claims to the present possession of the property; but subject to the result of such suit, if any, the order shall be final.'

Section 331 without the procedural part substantially corresponds to Order 21 Rule 99 of the Code of 1908 and Section 335 is spread over to Rules 97, 99, 101 and 103 of the present Code.

5. The provisions of Order 21 Rules 97, 98 and 99of the present Code of Civil Procedure, 1908 are in thefollowing terms:

'97. (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 by any person in obtaining possession of the property, he may make am 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.

98. Where the Court is satisfied that the resistanceor obstruction was occasioned without any just cause bythe judgment-debtor or by some other person at hisinstigation, it shall direct that the applicant be putinto possession of the property, and where the applicantis still resisted or obstructed in obtaining possession, theCourt may also, at the instance of the applicant, orderthe judgment-debtor, or any person acting at his instigation, to be detained in the Civil prison for a term whichmay extend to thirty days.

99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the) judgment-debtor) 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, the Court shall make an order dismissing the application.'

By our amendment the words 'or on his behalf' were inserted after the words 'at his instigation' appearing in Rule 98 at two places. Similarly, the words 'to have a right' after the words 'in good faith' in Rule 99 were inserted by the Calcutta amendment.

6. It will be noticed that amongst others the words 'defendant' and 'bona fide' in Section 229 of the Code of 1859 have been replaced by the words 'judgment-debtor' and 'in good faith' in Section 331 of the later Codes, introducing also the provisions of Indian Penal Code and Chapter V therein. It might also be noticed that the words 'proprietor, mortgagee, lessee' appearing in Section 269 were deleted from Section . 335 of the later codes Introducing the 'present' possession. The periods of one month and one year respectively were introduced for the first time in Section 335.

7. In my view Rules 97, 98 and 99 of Order 21 are to be read together. If there is the resistance to delivery of possession to the decree-holder or purchaser, it appears to me, on construction of the Rules, that only they can apply under the provisions of Order 21 Rule 97. Rule 98 deals with two classes of cases viz., where the obstruction is occasioned without just cause (1) by the judgment-debtor or (2) by some other person at his instigation, But Rule 99 deals with two cases of claims in good faith, viz., (1) persons claiming on their own account and (2) person claiming on account of some other person other than the judgment-debtor. In my opinion Rule 99 is not an independent provision but is dependent on Rule 97. Though the procedural part as laid down in Sections 229 and 269 under the Code of 1859 and In Sections 331 and 335 of the Codes of 1887 and 1882 were omitted from Rule 99 of Order 21 and the decisions under the old Codes discussed hereafter might be distinguished on the! said ground; in my view, on the construction of the language appearing in the said Rule 99 read with Rules 97 and 98 of Order 21, there is no warrant or authority for the proposition that a third party and/or a bona fide claimant has got locus standi to maintain an application, under Order 21 Rule 99 of the Code of Civil Procedure. The decisions under the present Code, also discussed hereafter, do not hold the contrary view.

8. Turning now to the reported decisions speciallyon Section 229 of the Code of 1859, in the case of Maharajadhiraj Mahatab v. Mst. Nadurunnissa, 1 Wyman's Rep.(civil) 25, it appears that after the Maharaja took out anexecution, Begum Nadurunnissa obstructed and claimedbona fide to be in possession of the property on her ownaccount. The Lower Courts referred the Raja to a regularsuit. The said orders were reversed by Loch andGlover JJ. holding inter alia that the claim should havebeen numbered and registered as a suit between theRaja decree-holder, as plaintiff and the claimant asdefendant. The next decision is that of Buhal Singh v.Behareelatl, 10 Suth WR (civil) 318. It appears that theCourt of first instance rejected the plaintiff's applicationfiled under Section 229 of the Code of 1859 complainingthat the defendants, having obtained a decree againsta third party were attempting unlawfully to interfere withhis possession. On appeal the Judge decided that theapplication was untenable under Section 229 and remandedthe case for trial. The first Court then gave the plaintiff a decree which the Subordinate Judge reversed onappeal. On the objections being taken that the proceedings were illegal, Jackson J. held inter alia that theplaintiff's claim could not be made under Section 229. TheBench was composed of Jackson, and Dwarkanath MitterJJ. but as Mitter J. was of a different opinion, Jackson J,gave effect to his judgment under the 36th section of theLetters Patent and directed that the appeal be dismissed.Though the decision in the case of Shadhoo Suran v.Bhuggoo Lall, 12 Suth WR 98 on Sections 226 and 227 ofthe Code of 1859 has got no application to the instantcase, but the Court could not be out in motion by athird party under Section 226 (Order 21 Rule 97)--see ln re,Bibee Mahtab Koomaree, 19 Suth WR 62.

9. Under the Code of 1882, the first Bench decision in the series is a case between F.D. Raikut v. Rani Jugodishwari, ILR 14 Cal 234 where, on execution of a decree for possession against a person who resisted the same, claiming the property as his own, it was held inter alia that the claim application should be treated as a plaint within Section 331 of the Code between the decree-holder as plaintiff and the claimant as defendant. In the Allahabad decision of Mahabir Prosad v. Parma, ILR 14 All 417 the Munsif gave effect to the objection of a third party holding that the decree was incapable of execution, on which the plaintiff sued for establishment of his right to possession and having lost before the Subordinate Judge succeeded in the High Court, their Lordships, approving Buhal Singh's case (supra) held that the proceedings before the Munsif were without Jurisdiction and his order was nugatory. It was held in a Bend) decision of this Court in the case of Srinath v. Annoda, 1 Cal WN 192 that the Auction purchaser having once been put into possession, by the execution of the decree cannot maintain a second application and cannot have another enquiry under Section 331 when he was subsequently turned out by a proceeding of law, which Is not the case here. Sir Ashutosh Mukherjee in the Bench decision of Braja Bala Debi v. Gurudas Mandal, ILR 33 Cal 487 : 3 Cal LJ 293 held inter alia that the judgment-debtor was not competent to make an application under Section 335. Woodroffe J. sitting in a Division Bench in the case of Sukhan Singh v. Baijnath, 12 Cal WN 115, gave effect to the contention of Babu Digambar Chatterjee in 1907 and held, of course without giving any reason, that Section 331 was limited to an application by the decree-holder. In the case of Barnagore Jute Factory Co. Ltd. v. Rajkumar Raj, 13 Cal WN 724, their Lordships observed in a different context that the procedure under Section 335 differs very materially from that under Section 331. Their Lordships of the Madras High Court in the case of Karunakara Menon v. Secretary of State, 21 Mad LJ 407, observed that the defendant was not entitled to come in under Section 331 of the Code or any other claim section of the Code.

10. Turning now to the present Code, the decision of Rankin J., sitting singly, is the case of Ezra v. Gubbay, ILR 47 Cal 907 : (AIR 1920 Cal 706). It was a case of resistance by a sub-tenant to the delivery of possession, applied for by the decree-holder under the provisions of Order 21 Rule 97. It was held that Rule 101 which dealt with exactly the same class of persons as Rule 99 dealt with that class after and not before dispossession. On the point whether the sub-lessee, though not a party to the suit was bound by the ejectment decree Rankin J.'s negative view in the said decision was not accepted in the case of Ramkissendas v. Binjraj, ILR 50 Cal 419 : AIR 1923 Cal 691 which later decision was approved by a Bench decision of this Court (Suhrawardy and Graham JJ.) in the case of Yusuf v. Jyotish : AIR1932Cal241 . The decision of Sailendra Nath v. Bijanlal : AIR1945Cal283 binds a sub-tenant by the decree for eviction of the tenant based on a ground which determines the sub-tenancy. The said decision of Rankin J. in Ezra's case, ILR 47 Cal 907 : (AIR 1920 Cal 706) was not approved by Macleod C. J. of the. Bombay High Court in the case of Jairam v. Nowroji, AIR 1922 Bom 449 (2) : 23 Bom LR 1316 who maintained his own decision in the case of Jafferji v. Miyadin, ILR 46 Bom 526 : AIR 1922 Bom 273 and assisted by Messrs. B.J. Desai, Jinnah and Setalvad, held that a sub-tenant could not claim under Rule 99. The Supreme Court in the case of Importers and . v. P. F. Taraporewala, : [1953]4SCR226 has finally laid down the law that the decree for possession against a tenant Is binding on the person claiming title under or through the tenant though he might not be a party to the suit. There was no occasion for Rankin C. J. to decide the present issue in the case of Bhim Naik v. Chakradhar : AIR1930Cal348 as sought to be argued. In the case of Kiron Soshi v. Official Assignee, Calcutta 36 Cal WN ,965 : AIR 1933 Cal 246 cited by Mr. Ghoshal, Rankin C. J. sitting with Costello J. in dealing with the question of constructive res judicata and as to the bar of limitation under Article 11-A of the Limitation Act, to a suit for, possession; after dismissal of the application, filed under Order 21 Rule 97; observed that only the decree-holder has got locus standi to file an application under Order 21 Rule 97 though nothing has been stated en Rule 99. The said decision was however explained by Lahiri and A.N. Ray JJ. in the case of P.N. Pathak Sharma v. Renuka Debi, : AIR1959Cal613 where also the questions of limitation and of fresh writs on successive resistance, arose. Their Lordships agreed with the decision of P.B. Mukharji, J. in the case of Official Trustee of West Bengal v. Monmotha Nath, : AIR1953Cal499 in which his Lordship reviewed all the cases bearing on the point of limitation.

11. Three other decisions, viz., Usha Rani v. Jagabandhu, AIR 1955 Tripura 30, Shyamlal v. Ahmad Bhat, AIR 1957 J and K 23 and Amulya Chandra v. Haridas, AIR 1958 Tripura 11 are cited by Mr. Ghoshal. The first Tripura decision deals with only Rule 100 and does not touch the present issue. The Kashmir decision that Rule 98 is dependent on Rule 97 and the decree-holder's remedy is by an application under Rule 97 is nothing new. The second Tripura case again relies on this Court's decision (see Sukhan Singh, 12 Cal WN 115 (supra)) and holds that the right to apply under Order 21 Rule 97 Is given only to the decree-holder. One of the latest cases cited, is ,a decision by Guha J. in the case of Deokaran v. Satyendra, : AIR1959Cal621 which is not a decision on the point raised in this case, though there are some discussions on Order 21 Rule 99 of the Code.

12. Particular reliance was placed by Mr. Mukherjee, the learned Advocate of the Opposite Party, on the decision of P.N. Mukherji J. sitting singly, in the case of Jagat Lakshmi v. Golam Hossain, 60 Cal WN 147 which has been relied on by the learned Munsiff in support of the proposition that a bona fide claimant has locus standi to maintain an application under the provisions of Order 21 Rule 99 of the Code. In my view, the learned Munsiff did not read the decision correctly. The said decision is not an authority for the said proposition. It was rather held that a sub-tenant had no locus standi to make an independent application under Order 21 Rule 97 of the Code but he would be entitled to a notice and to a hearing.

Therefore, on the construction of Rule 99 of Order 21 of the Code, it appears to me 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 a right to be in such possession--none of the said classes of persons have locus standi to make an independent application under the said provisions of Order 21 Rule 99. The decisions under the Codes of 1859 and 1882 though support the said view of mine but they cannot be strictly availed of in interpreting Rule 99 of Order 21 of the present Code, because the procedural part viz., that the decree-holder would only be the claimant or the plaintiff, in the enquiry is omitted from Rule 99. Similarly, the decisions under the present Code even if read together, which again cannot be strictly availed of rather supports my view indirectly.

13. For these reasons the, order dated June 28, 1963 in its entirety passed by the learned Munsif, both in allowing the Miscellaneous case and in refusing the police help is set aside. Mr. Mukherjee made a grievance that the said point of locus standi was not pointedly taken in the Trial Court as is done here but his client is not prejudiced; as the learned Munsif noticed the point in his favour and sufficient opportunity was given here to Mr. Mukherjee to substantiate the order if he can, on the said pure question of law, arising on no new evidence, which I have allowed Mr. Ghoshal to agitate.

14. By the said order, the learned Munsif also refused the Police help to the petitioner. It does not ppear that the matter has at all been considered by him except that the fact of filing such an application for police help was only noted by him in the beginning of the order and the police help was ultimately refused in the ordering portion, without any discussion or reason in the body of the order. In his anxiety he even forgot to set aside or to recall or even to take notice of the two previous orders Nos. 2 and 3 dated 9th and 12th November, 1959 granting police help to the petitioner,

15. But then again, the orders granting Police help to the petitioner, noticed earlier, were passed on 9th and 12th November, 1959 admittedly without service of the notice to the opposite Party No. 1 which are illegal and are also fit to be set aside. It is now well settled by this Court that (1) the party, against whom an order for Police help is made, is entitled to notice and that (2) the bona fide nature of the claim and that whether the party is entitled as of right to be in possession, are relevant matters for consideration in exercise of the Courts's discretion to deal with the case for Police help (see Dasgupta and Lahiri JJ. in Sew Sankar v. Bejoy Krishna, : AIR1953Cal218 . P.N. Mookerjee J. in the said case of jagat Lakshmi (supra) inter alia held that the party (a sub-tenant) would be entitled to a hearing, after giving him proper opportunities to place all relevant materials in support of the case of resistance. Bachawat J. in the case of Gaya Nath v. Antulya, : AIR1957Cal252 after reviewing many decisions including the decision of Sen J. in Bhupesh Chandra Dutta v. Dr. M.N. Bose, : AIR1953Cal198 followed the principles laid down by Dasgupta J (as his Lordship then was) and P.N. Mookerjee J. in the said two decisions. With respect I only intend to add that the decision in Sukhan Singh's case, 12 Cal WN 115 (supra) as referred to Bachawat J. at p. 167 was under the Code of 1882 and not under Order 21, Rule 97 of the present Code; and that the form (referred to at p. 168) as amended by this Court is Form No. (P) 49 of Civil Rules and Orders (both the Editions of 1935 and 1958).

16. In the circumstances and as the whole case is before me in revision, I set aside also the said two orders Nos. 2 and 3 dated 9th and 12th November, 1959 respectively in so far as they allow the police help to the petitioner. I direct the learned Munsif to decide the two applications of the decree-holder petitioner for possession and for police help filed on 9th November, 1959 in the light of the observations made above, and on the materials on record. There would 'be no fresh evidence but the learned Munsif would be entitled to take note of the fact of non-payment of rent and other facts appearing on the record. The application of the Opposite Party No. I purported to be filed under Order 21 Rule 99 should be treated as a petition of objection to the said two applications of the petitioner. The learned Munsif should make every possible attempt to dispose of the matter as early as possible,

17. The Rule is therefore made absolute without any order as to costs. Let the records be sent down without delay.


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