Friday, 29 July 2016

Whether court can treat objection filed by third party as application given by decree holder under O 21 R 97 of CPC?

 In so far as the second submission of the learned counsel for the obstructionists that the application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 was mandatory and since there was no separate application made by the decree holders under Order XXI Rule 97 for complaining of such resistance or obstruction made by the obstructionists, the Executing Court could not have passed any decree for possession against the obstructionists is concerned, it is a common ground that the obstructionists had filed an application before the Executing Court asserting their alleged rights and applied for adjudication thereof. It is not in dispute that in the said application filed by the obstructionists, decree holders had filed a detailed reply pointing out the previous orders and rights accrued in their favour on the basis of the consent decree and applied for possession of the suit property. The Trial Court proceeded with the application made by the obstructionists and also the reply of the decree holders seeking possession of the property by trying the same as suit and also followed the entire procedure under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and rendered a finding of fact that the obstructionists had no right of whatsoever nature in the suit property and directed them to hand over the possession of the suit property to the decree holders.
22. A perusal of the orders passed by both the Courts below clearly indicates that both the Courts below, in my view, have rightly referred to the Civil Manual which prescribed the procedure to be adopted for entertaining the miscellaneous proceedings requiring judicial inquiry. It is held by the lower Appellate Court that the provisions laid down in paragraph 337 to 341 of the Civil Manual are permissive in nature which are the guidelines for the Court and therefore, it should be interpreted liberally. It is held that it is for the Executing Court to maintain the separate record in respect of the miscellaneous judicial proceeding like proceeding under Order XXI Rule 97 of the Code of Civil Procedure, 1908. The lower Appellate Court has held that the right of the decree holders cannot be defeated for this technical reason. In my view, the lower Appellate Court has rightly construed the provisions under Order XXI Rule 97 read with paragraph 339 of the Civil Manual and has rightly held that such procedure prescribed under the Code of Civil Procedure read with Civil Manual are the rules of procedure which are handmaid of justice and has to be interpreted liberally.
23. Be that as it may, In my view, since the Executing Court has followed the entire procedure prescribed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and has decided the objection of the obstructionists and the reply of the decree holders by trying the same as suit, I do not find any infirmity with the order passed by the Executing Court in rejecting the application made by the obstructionists and decided the prayer made by the decree holders in the detailed reply filed before the Executing Court.
IN THE HIGH COURT OF BOMBAY
Second Appeal (ST.) No. 30922 of 2015, Civil Application No. 1789 of 2015 in Second Appeal (ST.) No. 30922 of 2015, 
Decided On: 09.12.2015
Appellants: Avinash Uttam Kadam and Ors.
Vs.
Respondent: Hajira Begum Nisar Ahmad and Ors.
Hon'ble Judges/Coram:R.D. Dhanuka, J.
Citation:2016(3) ALLMR156

1. By these three second appeals, all the appellants (obstructionists) have impugned the order dated 26th August 2015 passed by the learned District Judge-11, Thane dismissing the appeals filed by them.
2. Since the facts in all the three second appeals are identical, all the three appeals were heard together and are being disposed of at the admission stage by a common order.
3. It was the case of the respondent Nos. 1 to 3 herein (decree holders) in these three appeals that they had purchased the suit property for valuable consideration from the Judgment Debtor. On 2nd May 1995, the respondent Nos. 1 to 3 (decree holders) filed a regular civil suit against the respondent No. 4 (Judgment Debtor) inter alia praying for permanent injunction. In the said suit, the order of status-quo was passed by the trial Court in favour of the decree holders. Inspite of the status-quo order, the Judgment Debtor illegally demolished the suit structures of the decree holders. On 10th October 1995, the Judgment Debtors filed a Civil Suit (1064 of 1995) in Thane Court seeking injunction against the Judgment Debtor. In the said proceedings, the parties filed pursis before the Civil Judge, Senior Division, Thane. Learned Civil Judge, Senior Division, Thane passed a compromise decree on 29th October 1996. Under the said consent decree, the decree holders had agreed to hand over possession of their plots to the Judgment Debtors. It was agreed that the Judgment Debtors shall provide free of cost on ownership basis an area of 1850 sq.ft. in the proposed building to the decree holders. Pursuant to the said consent decree, all the pending litigations between the parties including the High Court proceedings were withdrawn as per the terms of the said consent decree.
4. On 15th February 1999, the decree holders filed Regular Darkhast No. 16 of 1999 against the Judgment Debtor for execution of the said compromise decree. The Executing Court appointed a Court Commissioner who submitted his report before the Executing Court along with the map in which an area of 1850 sq.ft. was earmarked.
5. By an order dated 15th March 2002, the Executing Court directed the Judgment Debtor to hand over the possession of the suit property to the decree holders within 3 months from the date of the said compromise decree. It is not in dispute that the said consent decree entered into between the decree holders and the Judgment Debtor came to be registered.
6. The Judgment Debtor thereafter filed a suit inter alia praying for setting aside the said consent decree on various grounds. The said suit was resisted by the decree holders. In the meanwhile, the Executing Court passed an order of injunction against the Judgment Debtor on 12th July 2002 restraining the Judgment Debtor from creating any third party interest in respect of the suit properties till the disposal of the Regular Darkhast No. 16 of 1999.
7. This Court in Appeal from Order No. 244 of 2004 and writ petition filed by the Judgment Debtor directed the trial Court to appoint the Court Receiver in respect of the property demarcated by the Court Receiver and liberty was granted to the decree holders to make an application before the Executing Court. As per the said report submitted by the Court Receiver on 7th August 2004, except in one matter, in the other matters, possession of the obstructionists was not even found in the suit property. The Court Receiver was directed to take symbolic possession of the suit property.
8. On 27th June 2006, the Judgment Debtor filed a suit seeking a declaration that the compromise decree passed in R.C.S. No. 1064 of 1999 was null and void. In the writ petition filed in this Court arising out of the interlocutory order passed in the said proceedings, this Court rejected the said writ petition filed by the Judgment Debtor.
9. On 3rd August 2006, the Judgment Debtor filed an application for issuing possession warrant as per the order dated 15th March 2002. The obstructionists refused to hand over the possession of the suit property.
10. The obstructionists thereafter filed an application before the Executing Court for appropriate reliefs and obstructed the execution of the decree obtained by the decree holders. In the said application filed by the obstructionists, the decree holders filed their detailed reply and once again prayed for possession of the suit property. Evidence was led by both the parties in the said proceedings. The Executing Court finally directed the obstructionists to hand over peaceful possession of the suit property to the decree holders in appeal arising out of those orders passed by the Executing Court in favour of the decree holders and dismissed the appeals in each of the matters. These three second appeals are arising out of the order dated dated 26th August 2015 passed by the learned District Judge, Thane thereby refusing to entertain the appeals filed by the obstructionists.
11. Mr. Karnik, learned counsel appearing for the obstructionists in all the three matters invited my attention to the findings rendered by the two Courts below and made two submissions for consideration of this Court. It is submitted by the learned counsel that one Mr. Nissar Ahmed who was not a party to the suit who was examined as a witness by the decree-holder, did not produce the original power of attorney before the Executing Court and thus his evidence could not have been considered by the Executing Court.
12. The next submission of the learned counsel for the obstructionists is that when the obstructionists obstructed the decree passed by the trial Court, the decree holders were required to file an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 complaining such resistance and obstruction raised by the obstructionists. Learned counsel also placed reliance on Article 129 of the Schedule to the Limitation Act, 1963 and would submit that since the application for possession was to be made by the decree holders within 30 days from the date of such resistance or obstruction and since the application was not made within 30 days in view of Section 5 of the Limitation Act, 1963, the Executing Court having no power to condone the delay in filing the application under Order XXI Rule 97 which proceedings which were to be tried as a suit, the Executing Court could not have passed any order for possession of the suit property in favour of the decree holders.
13. Mrs. Neeta Karnik, learned counsel for the decree holders on the other hand, invited my attention to the findings rendered by the Executing Court and also by the lower Appellate Court. She submits that the consent decree between the decree holders and the Judgment Debtor was duly registered prior to the obstructionists claiming the alleged rights through the Judgment Debtor. She submits that when the Court Receiver submitted his report in the execution proceedings filed by the decree holders, except the Judgment Debtor, none of the obstructionists were found in possession of the suit property except in one matter.
14. My attention is also invited to the order passed by this Court in Writ Petition No. 1153 of 2010 which was filed by the obstructionists in this Court. She submits that each of the obstructionists had rendered an undertaking to this Court not to dispose of, alienate, encumber, part with possession of or create any third party right, title and/or interest into, upon or in respect of the suit premises. Those undertakings were accepted by this Court. It was ordered that the obstructionists shall not even induct any party other than their immediate family members in the suit premises even though they had no right whatsoever in the suit premises. This Court also recorded the undertakings of the obstructionists that they would hand over the possession of the premises in the event of they being directed to do so in the appeal, without requiring the decree holders to execute the decree. This Court accepted those undertakings and it was ordered accordingly.
15. Learned counsel for the decree holders also invited my attention to the photographs annexed to the reply of the civil application and would submit that inspite of such undertakings rendered by the obstructionists to this Court, they have created third party rights and/or handed over possession of Shop Nos. 1 and 2. My attention is also invited to the invitation card issued by such third parties and photographs showing the possession of the third parties in respect of Shop Nos. 1 and 2. She submits that suo-moto contempt notice be issued against the obstructionists in Second Appeal Stamp Nos. 30922 of 2015 and 31398 of 2015.
16. In so far as the submission of the learned counsel for the obstructionists that the Executing Court could not have passed any order of possession in view of the decree holders not having filed an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and issue of limitation raised by the learned counsel is concerned, it is submitted by the learned counsel for the decree holders that both the Courts below have rightly rejected the contention raised by the obstructionists. She submits that before the obstructionists had obstructed the decree, the decree holders had already filed an application for possession and on such application, the Executing Court had already passed an order of possession in favour of the decree holders. She submits that there is no dispute that in the application filed by the obstructionists herein in which the decree holders had filed their reply and had prayed for possession of the suit property from the obstructionists. She submits that the appropriate procedure required to be followed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 was in fact followed by the decree holders. The evidence led by both the parties was recorded. After recording the evidence, the Executing Court had rejected the application filed by the obstructionists and allowed the prayer made by the decree holders in the affidavit-in-reply filed in those proceedings by treating the same as a composite application.
17. In support of this submission, learned counsel placed reliance on the judgment of the Supreme Court in the case of Shreenath and Anr. Vs. Rajesh & Ors., reported in MANU/SC/0286/1998 : (1998) 4 SCC 543 and in particular paragraphs 13 to 15 thereof and would submit that all the objections of the obstructionists and the decree holders have to be considered and adjudicated upon by the Executing Court in the execution proceedings under Order XXI Rule 97. She submits that in any event, the objection raised by the obstructionists before the Executing Court as well as before the lower Appellate Court was hyper technical.
18. A perusal of the record indicates that there was no dispute that there was a consent decree passed by the Civil Court on the basis of the consent terms arrived at between the decree holders and the Judgment Debtor. The said consent decree was duly registered. The Judgment Debtor, however, did not comply with the said consent decree and filed a suit for a declaration that the said consent decree was nullity in view of the alleged fraud. The said suit filed by the Judgment Debtor is admittedly dismissed with costs by the Trial Court and the said consent decree is in existence and has attained finality.
19. In so far as the obstructionists are concerned, they have claimed rights through the Judgment Debtor during the pendency of the execution proceedings filed by the decree holders. It is not in dispute that when the obstructionists claimed their alleged rights from the Judgment Debtor, the Executing Court had already granted injunction against the Judgment Debtor from creating any third party rights. The consent decree was already registered which amounted to public notice. The obstructionists could not have claimed before the Executing Court that they were bonafide purchasers without notice. The findings by the Executing Court against the obstructionists had attained finality in view of the confirmation thereof by the lower Appellate Court. I have perused the findings rendered by both the Courts below and in my view, there is no perversity in the concurrent findings rendered by both the Courts below and thus cannot be interfered with under section 100 of the Code of Civil Procedure, 1908.
20. In so far as the first submission of the learned counsel for the obstructionists that one of the witnesses examined by the decree holders did not produce any power of attorney before the Executing Court is concerned, Mrs. Karnik, learned counsel appearing for the original decree holders submits that the original power of attorney was filed before the Executing Court. Learned counsel for the obstructionists could not dispute the statement made by the learned counsel for the decree holders. In my view, there is thus no merit in this submission of the learned counsel for the obstructionists.
21. In so far as the second submission of the learned counsel for the obstructionists that the application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 was mandatory and since there was no separate application made by the decree holders under Order XXI Rule 97 for complaining of such resistance or obstruction made by the obstructionists, the Executing Court could not have passed any decree for possession against the obstructionists is concerned, it is a common ground that the obstructionists had filed an application before the Executing Court asserting their alleged rights and applied for adjudication thereof. It is not in dispute that in the said application filed by the obstructionists, decree holders had filed a detailed reply pointing out the previous orders and rights accrued in their favour on the basis of the consent decree and applied for possession of the suit property. The Trial Court proceeded with the application made by the obstructionists and also the reply of the decree holders seeking possession of the property by trying the same as suit and also followed the entire procedure under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and rendered a finding of fact that the obstructionists had no right of whatsoever nature in the suit property and directed them to hand over the possession of the suit property to the decree holders.
22. A perusal of the orders passed by both the Courts below clearly indicates that both the Courts below, in my view, have rightly referred to the Civil Manual which prescribed the procedure to be adopted for entertaining the miscellaneous proceedings requiring judicial inquiry. It is held by the lower Appellate Court that the provisions laid down in paragraph 337 to 341 of the Civil Manual are permissive in nature which are the guidelines for the Court and therefore, it should be interpreted liberally. It is held that it is for the Executing Court to maintain the separate record in respect of the miscellaneous judicial proceeding like proceeding under Order XXI Rule 97 of the Code of Civil Procedure, 1908. The lower Appellate Court has held that the right of the decree holders cannot be defeated for this technical reason. In my view, the lower Appellate Court has rightly construed the provisions under Order XXI Rule 97 read with paragraph 339 of the Civil Manual and has rightly held that such procedure prescribed under the Code of Civil Procedure read with Civil Manual are the rules of procedure which are handmaid of justice and has to be interpreted liberally.
23. Be that as it may, In my view, since the Executing Court has followed the entire procedure prescribed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and has decided the objection of the obstructionists and the reply of the decree holders by trying the same as suit, I do not find any infirmity with the order passed by the Executing Court in rejecting the application made by the obstructionists and decided the prayer made by the decree holders in the detailed reply filed before the Executing Court.
24. In so far as the submission of the learned counsel for the obstructionists that the application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 ought to have filed within 30 days under Article 129 of the Schedule to the Limitation Act, 1963 is concerned, in my view, since the application filed by the obstructionists and the reply filed by the decree holders were considered as an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and were tried as suit, in this situation, Article 129of the Schedule to the Limitation Act, 1963 would not be attracted.
25. In so far as the last submission made by Mrs. Neeta Karnik, learned counsel appearing for the decree holders that this Court shall issue a suo-moto contempt notice against the obstructionists in Second Appeal Stamp Nos. 30922 of 2015 and 31398 of 2015 is concerned, a perusal of the order passed by this Court in the writ petition clearly indicates that the petitioners therein who are the obstructionists had rendered undertakings before this Court that they would not create any third party rights in respect of the suit property. Inspite of such undertakings which were accepted by this Court, the obstructionists in both these proceedings have parted with possession in respect of the Shop Nos. 1 and 2 in favour of the third parties. In my prima facie view, parting with possession in respect of the Shop Nos. 1 and 2 in favour of the third parties as can be seen from the photographs, invitation card and the affidavit-in-reply to the civil application to which no rejoinder is filed by the obstructionists, the obstructionists (the appellants in two Second Appeals Stamp Nos. 30922 of 2015 and 31398 of 2015) have prima facie committed violations of the undertaking rendered to this Court which were accepted by this Court.
26. In my prima facie view, since such third parties who are handed over the possession of the Shop Nos. 1 and 2 is in violation of the undertakings recorded by this Court, such third parties would not have any right, title and interest of any nature whatsoever in respect of the Shop Nos. 1 and 2. In my view, since the obstructionists have rendered undertakings before this Court that they would not create any third party rights in respect of the suit property including Shop Nos. 1 and 2, it is for the obstructionists to comply with those undertakings rendered before this Court and to hand over the possession thereof in respect of the Shop Nos. 1 and 2 to the decree holders.
27. Since the obstructionists had agreed that if they did not succeed in the proceedings filed before the appeal Court, they would hand over the possession of the property to the decree holders, in my view, the decree holders are not required to apply for execution of the decree once again before the Executing Court and appropriate directions in that regard can be passed by this Court in the present proceedings. In my view, there is no substantial question of law arises in any of these appeals. Appeals are devoid of merits and are accordingly dismissed. In view of dismissal of the appeals, civil applications do not survive and are accordingly disposed of. No order as to costs.
28. Learned counsel appearing for the obstructionists, on instructions, at this stage, undertakes on behalf of his clients that they would obtain vacant possession of Shop Nos. 1 and 2 from the third parties and hand over the same to the decree holders within four weeks from today. Learned counsel, on instructions, further undertakes that the remaining suit properties would also be handed over to the decree holders within four weeks from today. Undertaking is accepted.
29. Court Receiver, High Court, Bombay is appointed as Receiver in respect of all the suit properties which were subject matter of the application filed by the obstructionists before the Executing Court with a direction to take symbolic possession of the suit properties for a period of four weeks from today and shall dispossess the obstructionists or any person found in possession of the suit properties forcibly, if necessary, with assistance of the police and hand over the same to the decree holders.
30. In so far as the request for issuance of suo-moto contempt notice against the obstructionists in the said two second appeals is concerned, liberty is granted to the decree holders to file appropriate proceedings for contempt, if they so desire. It is made clear that this Court has not made any adjudication on the rights of the obstructionists against the Judgment Debtor in these appeals and the same issue is kept open.
31. Parties as well as the Court Receiver to act on the authenticated copy of this order.
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