1.M.S.Mansoor Deen
2.Jaibin Beevi @ Jaibunisha
3.Akbar Ali
4.Shabeena Beevi ... Petitioners in CRP.1835/2008 Mohideen Abdul Kadher ... Petitioner in CRP.1804/2008 Rahman Bevi ... Petitioner in CRP.1805/2008 Vs.
1.Mrs.Fathimuthu Beevi
2.K.N.Dhul Bahadur Ali
3.K.N.Mohamed Meeran
4.K.N.Basheer Ahamed
5.Mrs.Hariunisha
6.Mrs.D.Thahira
7.Mrs.Inul Marjan
8.N.Thoulathmariyam ... Respondents in all CRPs Common Prayer: Petitions filed under
Article 227 of the Constitution of India against the fair and decretal order dated 21.4.2008 passed in E.A.No.766 of 2000 in E.P.No.156 of 1996 in O.S.No.25 of 1958 on the file of the learned District Munsif Court, Mathuranthakam.
For Petitioners : Mr.P.K.Gopalraj (CRP.No.1835/2008) For Petitioners : Mr.G.Jeremiah (CRPs.1804 & 1805/2008) For Respondents : Mr.N.Nagusah (in all CRPs) COMMON ORDER The civil revision petitioners have filed the present three civil revision petitions as against the order dated 21.04.2008 in E.A.No.766 of 2000 in E.P.No.156 of 1996 in O.S.No.25 of 1958 passed by the learned District Munsif Court, Mathuranthakam in allowing the execution application in E.A.No.766 of 2000 filed by the decree holder/plaintiff without costs.
2.The Executing Court, while passing orders in E.A.No.766 of 2000 dated 21.04.2008, has come to the conclusion that 'at a time when the suit is pending the respondents have purchased the property and later has constructed buildings and as such there has been no occasion to file an application to demolish the buildings at the initial stage and as per decree the buildings constructed in the petition properties are ordered to be demolished and since the sale obtained by the respondents are invalid the patta, house tax receipt, electricity receipt are not maintainable and resultantly the buildings are ordered to be demolished and obstructions are ordered to be removed and also the electricity connection has to be disconnected and vacant possession in regard to petition properties item No.14, 18, 21 are to be handed over to the plaintiff/decree holder and the petitioner/decree holder is entitled to obtain the deliver of possession and resultantly allowed the application without costs.' C.R.P.Nos.1804 & 1805/2008
3.According to the learned counsel for the revision petitioners, the order of the Executing Court in directing the removal of obstructions in E.A.No.766 of 2000 is contrary to law and evidence of record and at the Executing Court has failed to take note of the fact that the obstructions are genuine inasmuch as the property sought to be delivered in execution of the decree is not the property covered under the decree and moreover, the settlement proceeding has been concluded in 1960, long prior to passing of the preliminary decree dated 16.4.1980 and the final decree dated 31.3.1983. But the decree holder/plaintiff has not taken any steps to amend either the plaint or the preliminary decree so as to incorporate the new survey numbers in place of Paimash number described in the suit schedule and also that in the order dated 22.2.2007 in C.R.P.Nos.1462 and 1463 of 2006 this Court has left open the question pertaining to the identity of the property sought to be taken delivery and also whether the inclusion of the alleged corresponding survey numbers in execution petition are all issues to be determined in E.A.No.766 of 2000 but these material aspects have not been considered by the Executing Court at the time of passing orders in E.A.No.766 of 2000 and as a matter of fact, the Executing Court ought not to have allowed the amendment of execution petition to include new survey numbers as corresponding to the Paimash numbers mentioned in the decree in the absence of any material on record and in fact, the Executing Court must have noted that item 14 of the decree relates to old S.No.45/2 of an extent of 7.81 acres. But by virtue of an amendment, the S.No.178/1, 0.96 acres, New Survey No.178/2, 0.98 acres, and New Survey No.178/3, 1.08 acres, New Survey No.178/4, 1.14 acres, New Survey No.178/5, 3.02 acres have been added and the disparity in the total extent has been completely lost sight of by the Executing Court and in reality the Executing Court should have taken into consideration that Old Survey No.45 has an extent of 7.81 acres and further that there cannot be any correlation between Old Survey No.45 and newly introduced Survey No.178 and in short, the order passed in E.A.No.766 of 2000 by the Executing Court is in violation of specific directions issued by this Court in C.R.P.Nos.1462 and 1463 of 2006 and added further, in respect of item 21 of the execution petition this Court has found that Old Survey No.69/7, has an extent of 2.68 cents out of which 1 acre is within the specified boundaries has claimed by the plaintiff/decree holder, while the New Survey No.200/4 has been introduced by means of an amendment has an extent of only 1 acre and this discrepancy also has not been taken note of by the Executing Court and apart from the above, the Executing Court has also not taken into account of the fact that the petitioners are bonafide purchasers for a valuable consideration and they have been in possession and enjoyment of the property for several decades and the respondents are endeavouring to grab the petitioners' properties by wrongly introducing their properties by means of an amendment and these factual aspects of the matter have not been appreciated by the Executing Court in a proper perspective which has culminated in an erroneous order being passed against the petitioners and therefore, prays for allowing these revisions.
C.R.P.No.1835 of 2008:
4.The learned counsel for the revision petitioners/ respondents 1, 4, 5 and 6/third parties submits that the Executing Court while passing orders in E.A.No.766 of 2000 has acted with material irregularity when the petitioners herein have been treated as obstructors under Order 21 Rule 97 of Civil Procedure Code and in fact, the petitioners herein have been arrayed as respondents 1, 4, 5 and 6 and the respondents in the civil revision petition have not given the description of each property purchased by the petitioners individually as per registered sale deeds Ex.R.1, R.3 and R.4 and R.5 in E.A.No.766 of 2000 and merely mentioned the entire final decree property as the petition property in the execution proceedings which is vague and bald and it is also an abuse of process of the Court and as such, the Executing Court ought to have dismissed the execution application and furthermore, in the absence of specific schedule of property owned and occupied by each petitioner in the petition, the Executing Court has no jurisdiction to go into the sale deeds and identify them to the suit properties and therefore, the order of the Executing Court is an unreasonable one and in fact, the Executing Court has passed impugned order without providing reasonable opportunity to the petitioners and in E.A.No.353 of 1998 for demolition and removal of superstructure filed against the 63 respondents therein, the revision petitioners are not parties and the Executing Court has acted with material irregularity by passing a common order and the impugned order which is perverse and not valid in law.
5.The further pleas of the revision petitioners are that inasmuch as this Court has directed the plaintiffs in O.S.No.25 of 1958 to implead the alienees as defendants in the suit so that they can claim equities against their vendors in the final decree in the partitions, the respondents have deliberately failed to implead the father of the first petitioner i.e. Syed Ibrahim who has purchased the properties under Ex.R.1, R.3 and R.4 between 1972 to 1977, the final decree is not enforceable against the first petitioner herein and the Executing Court has wrongly applied the Doctrine of Lis Pendens, which has no application for the present suit in view of the judgments passed in S.A.No.863 of 1965 and L.P.A.No.90 of 1969 arising out of O.S.No.25 of 1958 and also that when the petitioners have purchased the properties and when they are in continuous physical possession of the same for well over a period of 12 years after improving the same by means of paying taxes, kists etc. the impugned order terming the petitioners as obstructors is not correct in law and moreover, when the Advocate Commissioner has been appointed by the trial Court to divide the suit properties in terms of preliminary decree and inspite of the demand made by the petitioners to the respondent to submit an Advocate Commissioner's report the same has not been filed by the respondents to fix the boundaries of properties and as such, the impugned order is perverse and therefore, prays for allowing the civil revision petition.
6.Countering the submissions of the learned counsel for the petitioners (in all civil revision petitions), the learned counsel for the respondents submits that the Executing Court has rightly allowed E.A.No.766 of 2000 praying for the removal of obstruction under Order 21 Rule 97 of Civil Procedure Code and therefore, the same need not be interfered by this Court after a long lapse of time when a preliminary decree in O.S.No.25 of 1958 has been passed on 15.4.1980 and followed by a final decree has been passed on 31.3.1983.
7.It is to be borne in mind that the original plaintiff/decree holder in his affidavit in E.A.No.766 of 2000 has inter alia stated that he has filed the suit for partition and after trial he has been allowed the properties mentioned in execution petition by the Sub Court, Chengalpet and in execution petition, the Court has passed an order of delivery and the respondents therein have purchased the properties from the Judgment Debtor and they are bound by the decree and in fact, they have purchased the properties during the pendency of suit and hence, they cannot claim any interest over the suit properties and as such, they are bound to deliver possession to him and the application has been filed to remove the obstruction for delivery of the suit properties by the respondents to him.
8.It is useful to refer to the order passed by this Court on 22.02.2007 in C.R.P.Nos.1462 and 1463 of 2006 (filed by the petitioners/3rd parties thereto) wherein while dismissing the civil revision petitions directions have been given to the Executing Court to offer sufficient opportunity to both parties to adduce evidence in E.A.No.766 of 2000 and also the Executing Court has been directed to proceed with E.A.No.766 of 2000 in accordance with law.
9.The learned counsel for the revision petitioners (C.R.P.No.1835/2008) cites the decision in Howrah Daw Mangla Hat B.B. Samity V. Pronab Kumar Daw (2001) 6 SCC 534 at page 537 wherein it is held as follows:
"Order 22 Rule 10 CPC is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has developed upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has developed will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resuling in decision adverse to the party upon whom the interest had devolved.
The legislature while enacting Rules 3,4 and 10 has made a clear-cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has developed during the pendency of a suit, which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record.
Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during he pendency of a suit, the suit may, by leave of court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the Court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so."
10.However, the learned counsel for the respondents cites the decision of Hon'ble Supreme Court in Amit Kumar Shaw and another V. Farida Khatoon and another (2005) 11 Supreme Court Cases 403 wherein it is held that 'a transferee cannot be joined as of right but the Court has discretion to do so and the said transferee can be joined as a proper party if his interest in subject-matter of suit is substantial and not just peripheral, though plaintiff has no obligation to join such transferee and however, joinder of party cannot depend solely on whether he has an interest in the suit property and the question is whether the right of a person may be affected if he is not joined and such transferee can be joined both under Or.22 R.10 or Or.1 R.10 of C.P.C. and given that such transferee is bound by the final decree under
Section 52 of Transfer of Property Act, 1882, such application should ordinarily be allowed etc.'
11.The vital argument of the learned counsel for the respondents is that admittedly the transferee pendente lite is bound by the passing of the final decree dated 31.03.1983 passed in O.S.No.25 of 1958. Moreover, the contention of the learned counsel for the respondents is that the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 of Civil Procedure Code but a alienee pendente lite may be considered as a party and as a matter of fact, a transferee pendente lite of an interest in immovable property is a representative-in-interest of an individual from whom he has acquired that interest and a Court of law is to see whether the right of an individual will be affected if he has not added as a party and such right will also mean an enforceable right.
12.It is to be borne in mind that an individual bound by a decree encompasses a person claiming through the judgment debtor. The provision for removal of an individual bound by a decree who does not vacate, takes into account a situation where resistance to possession is offered or obstruction is made by the judgment debtor, or any other person bound by the decree on the ground which is patently without substance. It may also include category of a person who claims to be in possession in his own right and independently of the judgment debtor, but whose claim is on the face of it an unacceptable and cannot be said to be made in good faith. Indeed, once resistance is offered by a so called stranger to the decree which comes to be noted by a Executing Court as well as by a decree holder, the option available to the decree holder against such an obstructionists is only as per Or.21 R.97, sub-rule (1) of Civil Procedure Code and he cannot get over such obstruction and insist on re-issuance of warrant for possession under Or.21 R.97. Although the proceedings under Order 21 Rule 97 and 98 may partake the character of the suit, the proceedings do not acquire the character of suit. In fact intervention by a third party in an execution proceeding by bringing a fresh suit is barred by Order 21 Rule 101 of Civil Procedure Code as per decision Mohamed Akhtar Hossain V. Suresh Singh AIR 2004 Cal 99. It is relevant to make a mention that a plea of limitation in proceedings under Order 21 Rule 97 is not available to the obstructer and the same is open to judgment debtor only as per decision AIR 1991 Rajesthan 136, 145.
13.It is not out of place to point out that Rule 97 of Order 21 of Civil Procedure Code deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionists can be adjudicated upon before actual delivery of possession to the decree holder and this adjudication which is subject to the hire archy of police will bind the parties to such proceedings and separate suit is barred as per decision of Honble Supreme Court Brahmodeo Chaudhary V. Rishikesh Prasad Jaiswal AIR 1997 SC 856, at 861.
14.It is pertinent to point out that an appeal against the order rejecting objection under Order 21 Rule 97 is not an Execution Appeal or Regular Appeal, but an Appeal under Order 21, Rule 103, the scope of manner of disposal is governed by Order 21 of Civil Procedure Code as per decision in M.S.Khalid V. K.R.Rangaswamy AIR 2003 Kant 174 (175). Also in Balraj Singh V. Ajit Singh AIR 2005 Raj 120 (123) it is held that an appeal can be filed before the District Judge. Moreover, an appeal is maintainable only against an order adjudicating the rights of the parties under Order 21 Rule 97 of Civil Procedure Code when the finding of the Executing Court that the status of the appellant is that of a trespasser is not disputed by him, he cannot evade the order granting police help on the ground that the provision contained in Rule 208 of the Civil Rules and order has not been followed as per decision Hiralal Sha V. Debprosad Dey and others 1998 CWN 41 : (1998) 1 CHN 399, 403 (DB).
15.At this juncture, this Court points out the decision in Akula Ramulu and others V. Kammari Balaram and another 2003 AIHC 2538 at page 2541 wherein it is held that 'if a transferee takes place during the pendency of suit or subsequent thereto will have to be ignorant outright by an Executing Court. In M/s.Deccan Enterprises V. Prem Raju alias Prem and another 2002 AIHC 381 at page 385 (Kant) it is held that 'a person who is claiming through Judgment Debtor has no right to file an application under Order 21 Rule 97.' It is held in Nabbu Khan V. III Additional District Judge, Pilibhit 2000 AIHC (All) 4470 at page 4472 that 'once execution fails on account of resistance by some parties it is open to the decree holder to apply for fresh parwana for fresh execution and Section 11 of the Civil Procedure Code will not be a bar.' In the decision 1998 AIHC 4261 at page 4270 and 4271 (AP) wherein it is held that 'objection by Judgment Debtor's brother-in-law to defeat the execution of a decree will be rejected.'
16.Also in V.K.Rama Setty V. A.Gopinath AIR 1998 Karnataka 186 (FB) it is held as follows:
"Keeping in view the language employed in O.21, R.99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under R.99 the use of the word "may" gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. In the instant case, the respondent had filed application under O.21, R.99 of the C.P.C. Once such an application is filed it is mandatory on the part of the Court as provided under sub-rule (2) of R.99, to dispose of the same in accordance with the provisions contained in Rr.100 and 101 of O.21 of the C.P.C. as noticed above. It is further of importance to note that once an application is filed by the aggrieved person under R.97 or 99 then R.101 in an unambiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and interest in the property."
17.On a careful consideration of respective contentions, this Court is of the considered view that the transferees pendente lite from the judgment debtors have no independent right in the teeth of
Section 52 of Transfer of Property Act, 1882 and they cannot resist the execution and in lieu of the fact that since under the Doctrine of Lis Pendens a decree passed in the suit during the pendency of which transfers are made bind the transferees the application filed by the original decree holder/petitioner in E.A.No.766 of 2000 and later continued by his legal representatives (by virtue of their impleading as per Order dated 06.7.2004 in E.A.No.788 of 2003) praying for removal of obstruction under Order 21 Rule 97 in regard to the delivery of execution of petition mentioned property etc., is perfectly valid in law and inasmuch as when the revision petitioners have purchased the properties pending suit and later constructed buildings, the order of the Executing Court dated 21.4.2008 in allowing the E.A.No.766 of 2000 does not suffer from any serious infirmity or patent illegality in the eye of law and as such, the same does not require any interference by this Court and consequently, the revision petitions fail.
18.In the result, these Civil Revision Petitions are dismissed. The order passed by the Executing Court in E.A.No.766 of 2000 dated 21.4.2008 is affirmed by this Court for the reasons assigned in these revisions. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
sgl To The District Munsif, Mathuranthakam