Heard Shri Vijendra Singh, learned counsel for the petitioner and Shri M.A. Qadeer, learned Senior Advocate assisted by Shri Shamim Ahmad, learned counsel for the respondents Nos 1 to 9.
The writ petition is filed challenging the orders dated 5.7.2008 passed by the Civil Judge(J.D.) Nazibabad District Bijnor in misc. case no. 57 of 2007 as also the order dated 20.8.2008 passed by the Additional District Judge, Bijnor in civil revision No. 72 of 2008 which arose out of the misc case.
Brief facts relevant for deciding the controversy are that original suit no. 599 of 1965 for permanent injunction was filed by respondents no. 1 to 9 against the defendants in the said suit. The said suit was decreed on 23.10.1967. Petitioner claims ownership over the suit property which is subject matter of the decree. An application under Order XXI Rule 99 read with Rule 101 C.P.C. was filed by the petitioner in execution case no. 300 of 1968 on the ground that petitioner is owner in possession of the suit property. The respondent decree holder in collusion with the defendant got the decree dated 23.10.1967 including the property of the petitioner with a view to grab the same. The suit property which is subject matter of the controversy, a single storied residential house consisting of one room(Kotha) and Sahan, was transferred by father of the petitioner in favour of his daughter, the petitioner and his son Hasim alias Kasim through sale deed dated 3.8.1981 . The aforesaid property has been wrongly included by the ancestors of respondents no. 1 to 9 in the suit property and decree was obtained in original suit no. 599 of 1965 without arraying the petitioner as one of the defendant in the suit. The petitioner was living at her in-laws' house and her brother Hasim also died about 25 years back leaving behind two sons Noor Mohammad and Munees. Noor Mohamad also died and as such the petitioner could not know about filing of the original suit no. 599 of 1965 and the decree passed therein. After death of her husband when petitioner started living in the disputed house along with her children and nephew Muneer, the respondents decree holder started interfering with her possession, then she came to know about the decree. In order to restrain the respondent from interfering in her possession, suit no. 159 of 2005 for permanent injunction was filed by the petitioner and interim injunction has been granted in her favour to the effect that the parties were directed to maintain status quo on the spot.
When petitioner came to know about the pendency of execution case no 300 of 1968, she filed an application dated 7.10.2005 bringing on record the interim injunction granted in original suit no. 159 of 2005.The decree holders objected to the maintainability of the aforesaid application on the ground that the petitioner was not a party to the suit and had no legal right to move an application for stay of the execution proceedings. The petitioner being the third party can approach the execution court only under Order XXI Rule 99 C.P.C. The application 205 Ga was rejected vide order dated 23.7.2007 on the ground of maintainability . While rejecting the application, executing court observed that the property which was subject matter of original suit no. 159 of 2005 was not the same and hence is not relatable to the suit property which was subject matter of the execution case. The application has been filed with a view to delay the execution of the decree. Thereafter, the petitioner moved an application under Order XXI Rule 99 C.P.C. read with Rule 101 C.PC. on 1.9.2007 before the Executing Court with the contention that the suit property of the decree passed in original suit no. 599 of 1965 included the petitioners' property as well and as such the decree was not executable. The disputed property was in possession of the petitioner.
After filing the application under Order XXI Rule 99 read with Rule 101 C.P.C., an application for interim stay under Order XXI Rule 29 read with Section 151 C.P.C. was also filed. The said application was marked as paper no. 243 GA and was rejected vide order dated 19.9.2007 on the ground that relief sought in the said application was earlier rejected while dismissing the application no. 205 Ga.
The decree holder filed an objection to the application under Order XXI Rule 99 read with Rule 101 C.P.C. filed by the petitioner. The Executing Court heard the said application on maintainability and by order dated 5.7.2008, rejected it on the ground that earlier two applications, namely, paper no. 205 Ga and 243 Ga filed by the petitioner have already been rejected holding that the disputed property of which petitioner was claiming title was not subject matter of the decree in the execution case. Issue raised and the relief sought by the petitioner in the application under Order XXI Rule 99 read with Rule 101 C.P.C. was barred by resjudicata.
Aggrieved, the petitioner challenged the order dated 5.7.2008 in revision. The revisional court while upholding the order passed by the executing court,further observed on the merit of the application under Order XXI Rule 99 read with Rule 101 C.P.C. The revisional court observed that the application was barred by resjudicata and also dismissed the revision being devoid of merits.
Assailing the orders passed by the Executing court and the revisional court learned counsel for the petitioner submits that the petitioner is in possession of the disputed property which is also the subject matter of the decree. As earlier, application 205 Ga was dismissed on the ground of maintainability and hence the petitioner moved an application under Order XXI Rule 99 with the prayer to decide the question of possession. The Executing court illegally refused to adjudicate upon the claim of the petitioner and thus has clearly failed to exercise the jurisdiction vested in it by law.
As the application has been rejected on ground of maintainability and hence revision was filed. The revisional court had erred in making observations on merits of the claim of the petitioner and committed a jurisdictional error. It was incumbent upon the revisional court to look into the maintainability of the application under Order XXI Rule 101 C.P.C. only and in the event, it came to the conclusion that the application was not maintainable,it could not have entered into the merits of the application under Order XXI Rule 99. Referring to the judgement of Apex Court in Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another, (1997)3 SCC 694, he submits that statutory provision of Order 21 Rule 99 C.P.C. lay down a complete code for resolving all dispute pertaining to execution of the decree for possession obtained by a decree holder. When there is an obstruction by third party, the executing court in connection with the disputed property is under obligation to decide the right, title and interest of the stranger to the decree, once resistance was offered by the said person. Looking to the scheme of the Code, the executing court was under obligation to entertain the application under Order XXI Rule 99 read with Rule 101 and decide the same on merits. The applications 205 Ga and 243 Ga were interim applications and rejected on the ground of maintainability as application under Order XXI Rule 99 C.P.C. has not been filed.Under Order XXI Rule 101 that is a bar for filing of a separate suit for possession and all questions arising between the parties are to be decided by the Executing Court. The rejection of application of the petitioner on resjudicata would rendered the petitioner remedyless.
In any case, the claim of the petitioner has not been decided on merits, there is no question of resjudicata operating in deciding the application. This court may not endorse the hypertechnical approach adopted by the executing court.
Repelling the submission of the learned counsel for the petitioner, Shri MA. Qadeer learned Senior counsel for the respondents submits that against the order of dismissal of the application under Order XXI Rule 99, appropriate remedy would be appeal under Order XXI Rule 103 C.P.C., revision as also the present writ petition, are not maintainable. The petitioner has availed a wrong remedy of revision.
An application under Order XXI Rule 99 was not only rejected on the ground of maintainability rather the executing court found that the disputed property does not relate to the property which is subject matter of the decree. Thus the decision on the application, the order made thereon would be a decision under Order XXI Rule 100 and 101 determining issues arising between the parties, therefore, is a decree under Order XXI Rule 103 and hence only appeal would lie.
Having considered the rival submission of the learned counsel for the parties and perused the record, it is evident that application 205 Ga was moved under section 151 for stay of the executing proceedings on the plea that the status quo order has been passed by the civil court in injunction suit filed by the petitioner. The said application was rightly rejected summarily as it was filed by a person who was a total stranger to the proceedings. The application 243 Ga for stay of executing proceedings purports to invoke the provision of Order XXI Rule 29 C.P.C. which reads as under:-
"29.Stay of execution pending suit between decree-holder and judgment debtor- Where a suit is pending in any Court against the holder of a decree of such Court(or of decree which is being executed by such Court) on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise,as it thinks fit, stay execution of the decree until the pending suit has been decided.
Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing."
Mere glance at the aforesaid provision shows that the prayer for stay of execution proceedings could be made by a judgement debtor pending suit between the decree holder and the judgement debtor. Petitioner being a stranger to the decree could not have maintained the prayer for stay of the executing proceedings under Order XXI Rule 29 and hence 243 Ga was wrongly filed.
Now only question remains as to the manner in which the application under Order XXI Rule 99 read with Rule 101 C.P.C. filed by the petitioner was dismissed. To appreciate the controversy, it would be appropriate to consider Order XXI Rule 99 and Rule 101 C.P.C. which reads as under:-
99.Dispossession by decree-holder or Purchaser- (1)Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
"101.Question to be determined :- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an 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."
A conjoint reading of Order XXI Rule 99 read with Rule 101 shows that a stranger to the decree who is even if dispossessed from the suit property relating to which he claims any right, title or interest before getting any opportunity to resist or offer obstruction, can file an application under Order XXI Rule 99 C.P.C. claiming his dispossession illegal and that the possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI Rule 100(a) the executing court can direct the stranger applicant under Order XXI Rule 99 to be put into the possession of the property. Such an order passed by the executing court would be a decree as envisaged under Order XXI Rule 103 and would be appealable before the appropriate forum, but no separate suit would lie against such orders as clearly enjoined by Order XXI Rule 101.
Thus in view of the statutory provisions Order XXI Rule 101 only remedy of such stranger to the decree lies under Order XXI Rule 99. It is held by the Apex court in Brahmdeo Chaudhary(Supra) that the stranger of the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decreetal property even after losing possession as per Order XXI Rule 99.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 under 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 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. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. The gamut laid down by Order XXI Rule 97 to 103 would remain a complete code and sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided.
Keeping in view the aforesaid settled legal position, order passed by the executing court has to be examined. A careful perusal of the order of the Executing Court rejecting the application under Order XXI Rule 99 shows that it was heard only on the ground of maintainability and was dismissed being barred by resjudicata.
As has been found above, the application 205 Ga under Section 151 C.P.C. and application No. 243 Ga under Order XXI Rule 29 read with section 151 C.P.C. were not maintainable at the behest of the petitioner. Both the applications were rightly rejected by the executing court. However so far as application under Order 21 Rule 99 read with 101 is concerned, the same was clearly maintainable at the instance of the petitioner, who claims to be a stranger in possession of the suit property.
The passing observations while dismissing the applications 205 Ga and 243 Ga could not be treated as an issue heard and finally decided between the parties. The question as to whether the property to which the petitioner is claiming his right and the decretal property are same or not could have been decided by the executing court after it proceeds to adjudicate upon the application filed by the petitioner in accordance with the provisions confined under Order XXI Rule 99.The court below has committed an error by taking a view that such an application was not maintainable or barred by resjudicata. The revisional court also erred inholding that the application is barred by resjudicata and further proceeded to decide the merits of the application in a cursory manner. There is another aspect of the matter which needs to be considered is that the petitioner having filed application under Order XXI Rule 99 is now precluded from filing separate suit as it would not lie in view of the statutory scheme envisaged by Order XXI Rule 101. The view taken by the Executing Court would result in non-suiting the petitioners/obstructionist who alleges to have independent right, title and interest in the decretal property and who is admittedly not a party to the decree.On the contrary the provisions under Order XXI Rule 97 C.P.C. clearly guards against such pitfall and provides statutory remedy to get proper adjudication before the Executing Court.
Now dealing with the objection of the learned counsel for the respondent/decree holder suffice it to say that as it has been held that the application under Order XXI Rule 99 read with Rule 101 filed by the petitioner was dismissed summarily being barred by resjudicata, the order passed thereon would not be decree within the meaning of Order XXI Rule 103 as the issues have not been adjudicated as envisaged under Order XXI Rule 101. The revision,therefore, was clearly maintainable and so the writ petition.
In the light of the discussions made above it must be held that the orders dated 5.7.2008 and 20.8.2008 of the executing court and the revisional court are liable to be set aside, and hence are being quashed. The application under Order XXI Rule 99 read with Rule 101 C.P.C. filed by the petitioner is hereby restored and is remanded back to the executing court for a decision on merits. The executing court is directed to adjudicate the claim of the petitioner to the decretal property as per provisions of Order XXI Rule 99 read with Rule 101 C.P.C., after considering the objections of the decree holder, within a period of four months from the receipt of the certified copy of this order.
As the decree is of 1967 and the execution proceedings are pending since 1968, the executing court is further directed to decide the execution case itself within six months from the date a certified copy of this order is produced before him. It is further directed that the executing court shall not grant unnecessary adjournment to either of the parties and on any such adjournment, heavy cost would be imposed upon the party seeking adjournment.
The writ petition is allowed accordingly.
No order as to costs.
Date:14.11.2014 Aks.