Wednesday, 27 July 2016

Whether petition is maintainable at instance of third party under order 21 R 97 of CPC?

On consideration of the entire facts and circumstances as discussed above, it is not possible to accept the submission of the counsel for the opposite party and accordingly it is held that the petition at the instance of a third party is not maintainable either under Order 21, Rule 97 or under S, 151 of the Code.
Patna High Court
Gopalji Prasad Keshari vs Md. Rayez Alias Fulan And Ors. Etc. on 3 September, 1994
Equivalent citations: AIR 1995 Pat 66, 1995 (43) BLJR 211
Bench: R N Prasad


1. In both the applications a common question of law and facts is involved, they have been heard together and are being disposed of by this common judgment.
2. Civil Revision Application No. 1954of 1989 has been filed against the order dated 13-6-1989 passed in Miscellaneous Case No. 29 of 1983 and Civil Revision Application No. 1960 has been filed against the order dated 13-6-1989 passed in Miscellaneous Case No. 32 of 1983.
3. The short fact of the case is that the petitioner filed Eviction Suit No. 280 of 1975 against one Farooque Mian for his eviction from the suit premises. The suit was decreed on contest. Farooque Mian filed an appeal against the aforesaid judgment and order which was dismissed. He thereafter filed a second appeal which was also dismissed. The petitioner, thereafter, filed an Execution Case No. 64 of 1979 for execution of decree. During the pendency of the execution case Md. Reyaz and Md. lliyas, sons of the judgment-debtor, Farooque Mian, filed a petition under Sections 47 and 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code' in the execution case stating, inter alia, therein that Abdul Quadir was the landlord, who had two sons, namely, Abdul Hasim and Abdul Malik. They had purchased half share in the suit premises from Abdul Hasim on 6-9-1969 after the death of his father and are in possession thereof and hence the execution case for effecting delivery of possession is not maintainable to the extent of half share on which they are in possession. On the said petition Miscellaneous Case No. 29 of 1983 was registered. Subsequently a petition was filed by them for treating the miscellaneous case under Order 21, Rule 97 of the Code which was allowed. The judgment-debtor, Farooque Mian also filed a petition stating, inter alia, therein that the execution case is not maintainable to the extent of half portion of the suit premises as his two sons, namely, Md. Reyaz and Md. lliyas have purchased half of the suit premises on 6-9-1979 from Abdul Hasim one of the sons of Abdul Quadir. On the said petition Miscellaneous Case No. 32 of 1983 was registered. The petitioner in both the miscellaneous cases filed an application stating, inter alia, therein that the miscellaneous cases are not maintainable.
4. The Court below after hearing the parties allowed the Miscellaneous Case No. 29 of 1983 and held that the miscellaneous case is maintainable and they have valid right to resist the execution of the decree to the extent of half portion of the suit premises; and in Miscellaneous Case No. 32 of 1983 the court held that the judgment-debtor has no right to resist the execution of decree but purchase of half share in the suit premises by Md. Reyaz and Md. lliyas, the petitioners in Miscellaneous Case No. 29 of 1983 from Md. Hasim is valid and they have the right to resist the execution of decree to the extent of half of the suit premises.
5. Learned counsel for the petitioner submitted that orders impugned passed in miscellaneous cases are bad in law and the same cannot be sustained. He says that under Order 21, Rule 97 of the Code only the complaint of the decree-holder or the auction purchaser can be entertained if resisted or obstructed by any person in obtaining possession of the property. In support of his submission learned counsel relied upon a decision in Smt. Usha Jain v. Manmohan Bajaj, AIR 1980 Madh Pra 146(FB), wherein it has been held that the executing court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder or the auction purchaser under Order 21, Rule 97 of the Code,
6. Learned counsel for the opposite party, however, submitted that there is no infirmity in the order under challenge. The application at the instance of a third party is maintainable. The application filed by the opposite parties shall be treated as an intimation to the court as caveat to the decree-holder. He also says that even if the application under Order 21, Rule 97 of the Code is not maintainable, the court has inherent power under Section 151 of the Code to pass an order in an appropriate case. In support of his submission he relied upon a decision in Smt. Tahera Sayeed v. M.
Shanmugam, AIR 1987 Andh Pra 206, wherein it has been held that an application under Order 22, Rule 97 of the Code and Section 151 thereof by a third person is maintainable. Learned counsel pointed out that in the aforesaid decision various aspect of the matter have been considered and the reasons given by the court for entertaining the application of a third party are cogent and, thus, the view taken in the aforesaid decision should be accepted.
7. To appreciate the rival contentions of the parties it is necessary to consider the relevant provisions under the Code. Order 21, Rule 97 of the Code deals with a situation where resistance to delivery of possession to a decree holder or auction purchaser is made by any person. In such event the decree-holder and the auction purchaser have been allowed to make complaint of such resistance or obstruction to the executing court and the court on receipt of such complaint shall adjudicate the matter in issue. No other person has been allowed to file an application resisting or obstructing execution of the decree.
8. In Tahera Sayeed's case (AIR 1987 Andh Pra 206) (supra) it has been held that to shorten the litigation the application of a third party is maintainable and in an appropriate case, the inherent power is to be exercised to prevent the abuse of the process of the court, but Order 21, Rule 97 of the Code does not contemplate any such eventuality. If the application of a third party is held to be maintainable, in that situation there may be possibility that some unscrupulous person may lay claim before the executing court and the decree-holder in such a situation would be deprived of the fruit of the decree. The court has not taken into consideration the aforesaid aspect of the matter and the plight of the decree-holder in such a situation.
9. Besides, a Division Bench of this Court in Janki Mohan v. Dr. Sarangdhar, AIR 1962 Patna 403, has held that under Order 21, Rule 97 of the Code the application of the decree-holder or the auction purchaser is maintainable if he complains with regard to the resistance or obstruction made by the third party in obtaining possession over the property.
Unless a complaint is made by a decree-holder or an auction purchaser, there is no locus standi to a third party to move the executing court for adjudication of their claim of the, title and possession over the disputed property. It has also been held that in view of the specific provisions it is not open to the third party to invoke the inherent jurisdiction of the court under Section 151 of the Code and as such the petition under Section 151 of the Code would be premature. The ratio decided in the afore-mentioned case, in my view, is fully applicable in this case. It is also pertinent to mention herein that the third parly claiming interest and title over the property is not remediless. He can file an application after execution of decree under Order 21, Rule 99 of the Code, and his right can be determined without filing any separate suit. Such person may also file a separate suit.
10. On consideration of the entire facts and circumstances as discussed above, it is not possible to accept the submission of the counsel for the opposite party and accordingly it is held that the petition at the instance of a third party is not maintainable either under Order 21, Rule 97 or under S, 151 of the Code.
11. Learned counsel for the opposite party, however, further submitted that the maintainability matter was decided by the court below on 29-9-1983 and the aforesaid order was not challenged by the petitioner. He also pointed out that a rejoinder was filed by the petitioner and he participated in the proceeding and, thus, the petitioner is not entitled to raise any question with regard to maintainability of the miscellaneous case. Learned counsel in support of his submission relied upon a decision in Motamari Ramiah v. Kumari Malliah, AIR 1962 Andh Pra 72, wherein it has been held that a decree-holder who co-operated without raising any objection probably in the hope that the proceeding would end in his favour, cannot be allowed to attack the order passed in such a proceeding on the ground that the third party's application was not maintainable in law. It was also held that if a decree-holder raised objection with regard to maintainability of an application of a third party the application of the third party has to be dismissed.
12. Initially the application was filed under Sections 47 and 151 of the Code and the maintainability of that application was considered and it was held that the petition was maintainable. Subsequently the application was converted into one under Order 21, Rule 97 of the Code and, thus the submission factually does not appear to be correct. Besides the decision in Motamari Ramiah's case (supra) relied on by the counsel for the opposite party does not help him as the petitioner in this case had raised the question of maintainability of the petition of the opposite party and in such event it has been held in the aforesaid decision that the application has to be dismissed. Thus, I find no substance in the submission of learned counsel for the opposite party.
13. Learned counsel for the opposite party also contended that the civil revision application is not maintainable in view of the provisions under Order 21, Rule 103 of the Code as such order is appealable. It is obvious from Order 21, Rule 103 of the Code that the order passed under Rule 98 and Rule 100 of Order 21 of the Code will have the force of a decree and an appeal would lie against such an order. It is pertinent to mention herein that under Order 21, Rule 97 of the Code only the decree-holder or the auction purchaser has been allowed to make a complaint against the resistance in obtaining possession of the property and if such a complaint is made, it has to be determined under Order 21, Rule 98 of the Code. If a third person makes an application after his dispossession the same would be maintainable under Order 21, Rule 99 of the Code and shall be adjudicated under Order 21, Rule 100 of the Code. Therefore, if an application is made by such a person as provided under the aforesaid rules, then an appeal would lie.

 

 14. In the present case, the complaint has not been made by the decree-holder or the auction purchaser, rather, by a third person claiming interest over the suit property independently and, thus, I am of the view that such an application does not come under the purview of Order 21, Rule 103 of the Code and in

such a situation    the revision application would be maintainable. 
 

 15. Having considered all the aspect of the matter as discussed above, I find merit in this application and accordingly the same is allowed and the impugned orders are set aside. However, in the facts and circumstances of the case, there shall be no order as to costs. The executing court is directed to proceed with the execution case. 
 

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