TMI Blog1997 (1) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... s first removed and he is dispossessed of the premises. This Court granted special leave to appeal to the appellant under Article 136 of the Constitution of India and granted stay of dispossession by its order dated 17th September 1996. Shri Sanyal, learned senior counsel for the appellant has raised a serious grievance against the aforesaid view of the High Court. 2. For resolving the aforesaid controversy between the appellant on the one hand and respondent No. 1 decree-holder on the other a few introductory facts deserve to be noted at the outset. 3. Respondent No. 1 filed an Eviction Suit No. 54 of 1988 in relation to six and a half dhurs of the suit land against respondent No. 2 and his mother Rachani Devi. A decree was passed in favour of respondent No. 1 against the judgment-debtor respondent No. 2 in 1988 by the Court of Munsif II, Munger. Respondent No. 1 filed execution proceedings in 1990 against respondent No. 2 judgment-debtor. These proceedings were registered as Execution Case No. 25 of 1990. On 25th April 1991 respondent No. 1 decree-holder obtained warrant for delivery of possession from the Executing Court against respondent No. 2. When the bailiff went on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the police aid as moved by him on 6th May 1991 purports to invoke the provision of Order XXI, Rule 35, CPC which reads as under: 35. Decree for immovable property.- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28th April 1991 the application moved by the respondent decree-holder on 6th May 1991 was necessarily to be one falling within the scope and ambit of Order XXI, Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order XXI, Rule 97, CPC could have been offered by any person. The words 'any person' as contemplated by Order XXI, Rule 97 Sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by respondent No. 1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words 'any person' as found in Order XXI, Rule 97 Sub-rule (1). Consequently it must be held that respondent No. 1's application dated 6th May 1991 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Now it is obvious that such questions relating to the right, title and interest in the property arising between the parties to any proceedings under Order XXI, Rule 97 or Rule 99 have to be adjudicated upon by following an identical gamut of procedure by the Executing Court. The said gamut of procedure is laid down by Order XXI, Rule 98 which reads as under: 98. Orders after adjudication.- (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2),- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality the order passed would be treated as a decree under Order XXI, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication than as enjoined by Order XXI, Rule 98 Sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order XXI, Rule 99 to be put in possession of the property or if his application is found to be substance less it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI, Rule 98 Sub-rule (1) would be deemed to be a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XXI, Rule 35 Sub-rule (3) for police assistance for removal of obstruction caused by Satyanarain had to be treated to be an application under Order XXI, Rule 97 and such an application was maintainable and could not be said to be beyond limitation. In this connection the following pertinent observations were made by this Court (at 4550-51 of AIR): The crux of the question is whether the application filed on 25-5-1979 by the appellant, though purported to be under Order 21, Rule 35(3) against Satyanarain, is convertible to one under Order 21, Rule 97, Order 21, Rule 35(3) provides that: 35. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. A reading of Order 21, Rule 35(3) postulates that the person in possession of the immovable property to be delivered under the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. The executing Court, obviously, was in error in directing to make a fresh application. It is the duty of the executing Court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the executing Court dismissed the second application on limitation and also the third application, on the ground of res judicata which the High Court has in the revisions now upheld; The procedure is the handmaid of substantive justice but in this case it has ruled the roost. In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that respondent No. 1 decree-holder's application dated 6th May 1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order XXI, Rule 97, CPC and had to be adjudicated upon as enjoined by Order XXI, Rule 97 Sub-rule (2) read with Order XXI, Rule 101 and Order XXI, Rule 98. In this connection the Court had also to follow the procedure laid down by Order XXI, Rule 105 which enjoins the Execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r persons also would one by one come forward to further obstruct the execution proceedings which would be indefinitely delayed. This submission though prima facie looking attractive on a closer scrutiny does not remain well sustained. Even though the Nazir's report mentions the obstructions offered by Sitaram Chaudhary, Jago Chaudhary, Brahmdeo Chaudhary and others, only the appellant objected to the order passed by the Executing Court on respondent No. 1' s application dated 6th May 1991 for issuance of a fresh warrant for delivery of possession with the aid of police force. Only he put forward his written objections on 22nd January 1996. Neither of his brothers, namely, Sitaram Chaudhary or Jago Chaudhary nor anyone else filed any objection to the said application for issuance of fresh warrant for possession with the police aid. Therefore, it must be held that the only objections to remain in the field claiming to be a stranger having any right, title and interest in the suit property is the appellant and no one else. The others who might have resisted on spot on 28th April 1991 must be treated to have given up their obstructions and resistance subsequently and have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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