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Dwipal Chandra Bardhan Vs. Jiban Debi and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal574
AppellantDwipal Chandra Bardhan
RespondentJiban Debi and ors.
Cases ReferredKailash Chandra Tarafdar v. Gopal Chandra Poddar A.I.R.
Excerpt:
- .....judge, 24-pargannas, on 6th october 1928. the facts necessary to be stated are the following. the decree-holder obtained a mortgage-decree and in execution thereof purchased the mortgaged property which was a dwelling house and thereafter obtained an order for delivery of possession. in the course of the proceedings that followed resistance was offered to his obtaining possession of two rooms in the house with the result that he complained of such obstruction having been caused to him not only by the judgment-debtor but also by the judgment-debtor's wife in her personal capacity as well as in her capacity as guardian of her minor son. this application having been made before the court on behalf of the decree-holder complaining of the aforesaid obstruction, opposition was entered on.....
Judgment:

1. This appeal has arisen out of an order passed by the Subordinate Judge, 24-Pargannas, on 6th October 1928. The facts necessary to be stated are the following. The decree-holder obtained a mortgage-decree and in execution thereof purchased the mortgaged property which was a dwelling house and thereafter obtained an order for delivery of possession. In the course of the proceedings that followed resistance was offered to his obtaining possession of two rooms in the house with the result that he complained of such obstruction having been caused to him not only by the judgment-debtor but also by the judgment-debtor's wife in her personal capacity as well as in her capacity as guardian of her minor son. This application having been made before the Court on behalf of the decree-holder complaining of the aforesaid obstruction, opposition was entered on behalf of the judgment debtor's wife. She alleged that the minor was born before the date of the suit and had not been made a party thereto and consequently was not bound by the decree and the sale. The Court accepting the contention urged on behalf of the judgment-debtor's wife held that she was claiming in good faith to be in possession of the rooms in respect of which resistance was offered and that the application for delivery of possession, in so far as the said rooms are concerned, was to be dismissed. Prom this order the present appeal has been preferred by the decree-holder.

2. A preliminary objection has been taken as to the competency of this appeal, it being urged that the order from which it has been preferred does not come within the purview of Section 47 of the Code and consequently the decree-holder has no right of appeal from the order. This objection in our opinion must be upheld.

3. On behalf of the appellant it has been urged that although the order was passed in a proceeding under Order 21, Rule 97, it was one which came within the purview of an order passed under Section 47 of the Code. Reliance in this behalf was placed upon the decision of the Full Bench of this Court in the case of Kailash Chandra Tarafdar v. Gopal Chandra Poddar A.I.R. 1926 Cal. 798.

4. In the judgment of Chatterjea, Ag. C. J., it was observed:

Section 47, Order 21, Rules 97 to 101 make the same provision for the purchaser of immovable property as for the holder of a decree for possession of immovable property in connexion with resistance to execution which indicates that the legislature regards the delivery of possession to the purchaser as a proceeding in execution of the decree.

5. These observations have been relied upon as justifying the position that an order made in a proceeding relating to obstruction to delivery of possession must be regarded as an order passed under Section 47 of the Code. We are of opinion that this contention is not well founded. It is true that matters decided in such proceedings are matters decided in execution proceedings; but all orders made in execution proceedings are not orders under Section 47. The whole question is as to whether the orders that are passed are orders which decided any question as to the satisfaction, execution or discharge of a decree as between the decree-holder and the judgment-debtor. Though the order complained of was passed in a proceeding relating to execution it does not fulfil the requirements enunciated above. It is also plain from the reading of Sections 97 and 103 of the Code that upon the findings at which the Court below has arrived, namely that the resistance or obstruction was offered not by the judgment-debtor nor on his behalf but by a person claiming under an independent right, that the order is not one which can be treated as having been made under the provisions of Section 47 of the Code. Order 21, B. 97 says that where the decree-holder or purchaser of any property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction. Order 21, Rule 98, says that where the Court is satisfied that the resistance or obstruction was occasioned by the judgment-debtor or by some other person at his instigation it shall direct that the applicant be put into possession of the property. Now if the Court had found that the resistance or obstruction was caused by the judgment-debtor and had made an order directing the applicant to be put in possession or refused to make such an order on the ground that the judgment-debtor had just cause, that order would have been one coming under Section 47 of the Code and the judgment-debtor or the decree-holder, as the ease may be, would have his remedy by way of appeal as from an order under that section. Where an order under Order 21, Rule 98, is made in respect of a stranger on the footing that he caused the obstruction at the instigation of the judgment-debtor, or, where, as here, the order is made under the provisions of Order 21, Rule 99, the (Court being satisfied that the resistance or obstruction was occasioned by a person other than the judgment-debtor and 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 and the Court dismisses the application, the judgment-debtor has no concern with the order, and the order cannot be regarded as relating to the execution, discharge or satisfaction of the decree. The decree-holder cannot treat the order as one under Section 47 and prefer an appeal, but as appears from Order 21, Rule 103 of the Code, his remedy lies in a suit to establish the right which he claims to the present possession of the property. That rule is plain in its meaning. We are of opinion that the appellant has mistaken his remedy. We accordingly hold that no appeal lies in this Court and the appeal now before us must be dismissed. We make no order as to costs.

6. On the application for revision we are not inclined to interfere as the appellant has another remedy which we have pointed out. The application is also dismissed. The application for substitution which is pending in connexion with the above case is dismissed.


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