1. This is an application by Kedarnath Bothra, an infant, represented by his mother, Mt. Tiju, calling upon Mt. Kesar Bai to appear and answer as to why the Sheriff of Calcutta should not give possession of a portion of No. 48, Nolini Sett Road in terms of the order to that effect dated 19th November 1938. In May 1925 the present applicant brought a suit for partition of the joint properties of his father, Hiralal, and his uncle, Johurmull. The lady who is now resisting possession, which the Sheriff seeks to take, is the widow of Johurmull who died on 16th June 1935. In 1927 there was a partition decree by consent in which it was declared that Hiralal and Johurmull each had a half share, and an order made in May 1931 directed a sale of the premises among the parties. At that sale Johurmull bought No. 48, Nolini Sett Eoad subject to the condition that he would execute a mortgage in respect of the entirety of the property sold to secure the purchase money and he covenanted that he would pay the amount of the mortgage within three years from date. He failed however to execute the mortgage and after an order directing him to execute it within a fortnight the mortgage was executed by the Registrar on his behalf on 11th August 1933. The mortgage money was Rs. 51,975 which was admittedly the value of the half share of the premises.
2. Johurmull died on 16th June 1935 leaving two sons, Baijnath and Srinath. On 4th September 1935 the present suit was instituted by the petitioner to enforce the mortgage. The defendants to that mortgage suit, Johurmull's sons, Baijnath and Srinath, on 18th June 1936 filed a suit for cancellation of the mortgage on the ground! that it was not binding upon them. On 26th June 1936 there was a consent decree in the present suit, but without prejudice to the contentions raised by the defendants in their suit and there was a stay of execution of the sale until the disposal of that suit to set aside the mortgage. On 6th August 1936, the petitioner obtained an order for the appointment of a receiver of the premises No. 48, Nolini Sett Road but the defendants were allowed to reside there on payment of rent to the receiver. That application was opposed by Baijnath and Srinath and they then raised again the contentions which they had been putting forward in their own interests with regard to the validity of the mortgage and with, regard to the validity of the title of Hiralal. When the receiver was appointed they appealed from the order of payment and that appeal was dismissed with costs on 15th March 1937. Baijnath and Srinath however still refused to pay any rent and on 3rd August there was an order by this Court directing them to vacate the premises within one week and to pay rent to the receiver in respect of a portion of the premises at the rate of Rs. 35 per month, dating back from 6th August 1936.
3. The defendants again appealed from that order and applied for stay of execution. The Court of Appeal ordered the defendant to pay the rent as directed. It further directed that there should be a stay of the order of ejectment until the final disposal of the appeal. On 22nd December 1937 the appeal was dismissed with costs. On 28th January 1938 the petitioner applied for execution of the decree which had been made on 3rd August 1937 and the Sheriff was directed to deliver possession to the receiver of that portion of the premises which was in the occupation of the defendant. On 10th February 1938, the Sheriff's officer went to carry out the order and to obtain possession but he was obstructed by Mt. Kesar Bai, the mother of the defendants Baijnath and Srinath. There were various proceedings thereafter, to which it is not necessary now to refer, but again on 19th November 1938 the petitioner applied for an order directing the Sheriff to exe. cute the order of 3rd August 1937 and to give delivery of the premises to the receiver. The Sheriff went on 17th January 1939 to execute the order and was again obstructed by Mt. Keaar Bai, whereupon the present application was made by the petitioner and a summons has been issued to Kesar Bai to show cause why she should not give possession. She has now filed an affidavit in opposition and has been represented by counsel on this application.
4. Dr. Roy on behalf of Kesar Bai has confined his opposition to three main points. He argues first that the application does not lie. He says that there must be an application under Order 21, Rule 97, Civil P.C. and that Rule provides that where the holder of a decree for 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 property, he may make an application to the Court complaining of such resistance or obstruction and the Court shall fix a date for investigating the matter and summon the party obstructing to appear. Rule 98 provides that where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf it shall direct that the applicant be put into possession of the property. The Court may also in certain circumstances detain the person so obstructing in prison for 30 days. Rule 99 refers to the resistance or obstruction by a bona fide claimant, and provides that 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 have a right 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.
5. Dr. Roy bases his contention that the application is not maintainable on the words of Rule 97. Rule 97, he argues, confines the relief to a decree-holder or to the purchaser and he argues that the present petitioner is not the holder of a decree, for all that he has obtained is a preliminary decree in a mortgage suit which is not a decree for possession. He further points out that Mt. Kesar Bai was not a party to that suit until the preliminary decree was passed and that she is claiming in her individual right as without from the rights of the other members of the joint family, and that being no party to the mortgage suit she cannot be bound by the mortgage decree.
6. For the applicant however it is contended that the relief is granted to the holder of a decree for possession of immovable property and reference is made to Section 36, Civil P.C. which provides that the provision of this Code relative to the execution of decrees shall, so far as they are applicable, be deemed to apply to execution of orders. Order 21 deals entirely with execution and Rule 97, Order 21 would apply equally to a person who was entitled to an order for possession in the same way as it in terms applies to the holder of a decree for possession. An order which has been made for a receiver to obtain possession is in effect and for the purpose of execution the same as a decree for possession. He further points out that although the application is not made by the receiver in person it has been made on behalf of the receiver according to the usual practice and he refers to a statement of the practice by Ker on Receivers where it is pointed out that all applications on behalf of a receiver should be made by the person having carriage of the proceedings. In my opinion the contention on behalf of the petitioner is sound and he has the right to apply under Order 21, Rule 97 for the relief which is sought.
7. It is then objected that the application is out of time and barred under Article 167, Limitation Act. Article 167 provides a period of 30 days for relief of this nature, the period commencing from the date of resistance or obstruction. The obstruction, it is contended, took place on 10th February 1938 and any application for relief would be barred 30 days after that date. It is clear however that there was a further obstruction on 17th January 1939 and the present application was brought only two days later, so that if the petitioner has a right to apply on every occasion on which there is an obstruction, the application is within time. The second application was made on 19th November 1938 and a fresh writ was issued to the Sheriff to take possession. In support of the contention that a separate right arises on each occasion when there is obstruction provided a fresh writ has been issued, Mr. Sett for the petitioner relies on the case in Barnagore Jute Factory Co. Ltd. v. Raj Kumar Rai (1909) 13 C.W.N. 724 and in particular to the following paragraph in the judgment reported at page 728:
In this particular case the Court issued a second, (if not, a third) writ in favour of the decree-holder. It cannot be said that it had no Jurisdiction to do so, and if the decree-holder was given this fresh writ, there seems to be no good reason for depriving him of the remedy which the law allows in the case of resistance to that writ. There is nothing in the Code which confines the decree-holder to one writ under Order 318, while the words of Section 828 'such resistance or obstruction' clearly indicate that the month is to run from the time of the particular resistance or obstruction in respect of which the decree-holder is complaining.
8. With the greatest deference I entirely agree with the reasoning of the learned Judges as set out in that report, and in my opinion in this case, the month would run from the time of the particular resistance or obstruction in respect of which the decree-holder is complaining, namely the obstruction of 17th January 1939. The application therefore in my opinion is within time. The third ground on which Dr. Roy opposes this application is based on Rules 98 and 99 of Order 21, viz. that Kesar Bai is not the judgment-debtor nor is she a person obstructing at his instigation or on his behalf, within the meaning of Rule 98. He contends further that she is a person claiming in good faith to have a right to be in possession of the property within the meaning of Rule 99.
9. In order to decide whether she is acting in good faith and in pursuance of her own right, we must look to the facts as set out in the affidavit and the inferences which can be drawn from them. It is alleged that the mother and her sons have been living together in this property. It is further quite clear that the sons have endeavoured throughout to avoid giving up possession and to avoid payment of any rent while they are in possession. When the Sheriff sought to take possession in January 1939 he was obstructed by Kesar Bai and from his report it appears that she stated that a High Court suit is pending and that she has a half share in the whole of the property No. 48 Nalini Sett Road. She further stated that until and unless the High Court suit was decided she refused to leave a portion of the third floor of the premises. Now the suit to which she must have been referring was Suit No. 1076 of 1936 which was the suit filed by her sons in 1936 for cancellation of the mortgage. But that plea of the pendency of the suit was taken at the time when the application for receiver was made and in spite of that plea the receiver was appointed and was ordered to take possession. It was therefore exactly the same plea which was taken by the sons on their own account in August 1936. Again, in para. 10 of her affidavit ii' opposition she says that she has beep occupying five rooms in the third floor and a stair, case room on the second floor ever since her husband Johurmull died in June 1935. But these are the five rooms which have been occupied by the sons and they have been obstructing possession on the ground that they are in possession. Kesar Bai, again, is now trying to set up a right of residence and a right of maintenance, which is the right that she claims as an individual, apart from her sons. But I have no doubt that the widow of a Hindu cannot claim the right of residence or of maintenance in derogation of an encumbrance on the property. Once the encumbrance has been made, her right of residence and of maintenance are subordinate to it. In February 1938, when this lady obstructed the Sheriff, she stated that she was on the point of filing a suit to have her rights determined but no such suit has yet been filed. Her excuse for her failure to file the suit is ill health, an excuse which is only too often made in these Courts without being substantiated.
10. I am satisfied therefore on the facts which have been placed before me that the resistance and obstruction was occasioned without any just cause by a person acting at the instigation and on behalf of the judgment-debtor and I direct that the applicant be put into possession of the property. I am not satisfied of the good faith of Kesar Bai, nor am I satisfied that she has a bona fide claim to possession of the property on her own account. Kesar Bai must vacate the premises within a week. The Sheriff may proceed without the order being drawn up. The drawing up of the order will be expedited. The petitioner will have the costs of this application. Certified for counsel.