Shri Ram vs Rajeshwar And 6 Others
2019 Latest Caselaw 1836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1883 of 2019
 

 
Petitioner :- Shri Ram
 
Respondent :- Rajeshwar And 6 Others
 
Counsel for Petitioner :- Dhiraj Srivastava
 
Counsel for Respondent :- Radhe Shyam Gupta
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri B.K. Srivastava, learned Senior Counsel assisted by Ms. Saumya Srivastava for the petitioner and Sri Radhey Shyam Gupta for the respondents.

The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution in challenging an order dated 30.1.2019 passed by IIIrd Additional District & Sessions Judge, Jaunpur. By the said order, the Civil Appeal No.8 of 2015 filed by respondents 1 and 2 has been allowed. The judgement and order dated 28.1.2015 passed by the executing court in Misc. Case No.23 of 2014 allowing the objection of the petitioner under Order 21, Rule 97 CPC has been set aside.

The facts in brief are that respondents 1 and 2 are holders of decree of specific performance of an agreement for sale of an immovable property passed in their favour in Original Suit No.7 of 1977. The said decree is being executed by the respondent-decree holders vide Execution Case No.33 of 1982. The application of the respondent-decree holders for delivery of possession was registered as Misc. Case No.91 of 1985. The petitioner, a third person to the execution proceedings, offered resistance to the delivery of possession by filing objection Paper No.4 Ga/71/1 claiming independent right, title and interest in the suit property. The executing court, while allowing the objection recorded a specific finding that the decree holders do not get title over the suit property on the basis of the sale deed obtained by them as the property belonged to Bhagauti, father of the present petitioner and Bachchu, father of defendant-respondents 3 to 7, the executent of the agreement for sale, had no right to transfer it. Aggrieved thereby, the respondent- decree holders filed Civil Appeal No. 8 of 2015 which has been allowed by the appellate court by impugned judgement and decree dated 30.1.2019. The appellate court has held that on the date of institution of the suit, name of father of defendant-respondents was duly recorded. The petitioner had taken steps for getting his name restored in the revenue records. These proceedings are still pending. In case he succeeds in those proceedings, he can seek restitution under Section 144 CPC.

Learned counsel for the respondents-decree holders raised a preliminary objection relating to maintainability of the instant petition. He submitted that the objection filed by the petitioner was decided by the executing court as per provisions of Order 21 Rule 101 CPC. Consequently, it amounted to be a deemed decree under Order 21 Rule 103 CPC. For the said reason, a regular civil appeal was filed by the respondent-decree holders challenging the order of the executing court dated 28.1.2015. He submitted that the judgement passed by the appellate court in appeal also amounts to a deemed decree and could only be challenged in second appeal and not by way of petition under Article 227 of the Constitution.

On the other hand, Sri B. K. Srivastava, learned senior counsel submitted that the appellate court has failed to decide right, title and interest of the petitioner in accordance with Order 21 Rule 101 CPC. Therefore, it did not amount to a decree. He has placed reliance on a judgement of the Supreme Court in Sameer Singh and another vs. Abdul Rab and others, 2015(1) AWC 321 (SC) in support of his contention.

The Supreme Court in Brahmdeo Choudhary vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 has held that a person claiming independent right and title over immovable property in respect of which possession is sought to be delivered in execution of decree, is entitled to resist the delivery of possession. The obstruction so created if brought to the knowledge of the executing court by the decree holders or by way of objection by the obstructor himself has to be adjudicated by the executing court in accordance with Order 21 Rule 97 CPC. Sub-rule (2) of Rule 97 of Order 21 provides that any application made under sub-rule (1) shall be adjudicated by the court in accordance with provisions contained therein. Order 21 Rule 101 provides that all questions arising between the parties to a proceedings on an application under Rule 97, shall be determined by the court dealing with the application and not by a separate suit. It also stipulates that the court before whom objection to the said effect is filed, shall be deemed to have jurisdiction to decide all such question notwithstanding anything to the contrary contained in any other law for the time being in force. It is worthwhile to quote from the said judgement:-

"(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35, then the decree-holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality 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."

Rule 101 confers the executing court with power to decide all questions relating to right, title and interest in the property arising between the parties itself. Therefore, it specifically bars a separate suit for such purposes. Rule 103 stipulates that where any application has been adjudicated upon under Rule 98, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree.

In the instant case, the petitioner resisted delivery of possession in pursuance of sale deed obtained by the decree holders in suit for specific performance on the ground that the defendants had no title in the suit property. The property belonged to his father. The executing court decided the issue in favour of the petitioner. The order passed by the executing court was a deemed decree in view of Order 21 Rule 103 CPC. It was also rightly treated to be a decree while challenging the same by filing a regular civil appeal. The appellate court has now allowed the appeal.

According to learned counsel for the petitioner, the appeal has been decided on a misconstruction of legal position and without specifically setting aside the findings recorded by the executing court, therefore, in his submission, it did not amount to a decree. The petitioner has got remedy of invoking supervisory jurisdiction of this Court under Article 227 of the Constitution.

In Sameer Singh, upon which reliance has been placed by learned counsel for the petitioner, the executing court declined to adjudicate upon objection filed under Order 21 Rule 97 CPC by holding that it had become functus officio. The Supreme Court held that the order passed by the executing court, declining to go into the questions required to be determined under Order 21, Rule 101 CPC would not make it a deemed decree. The executing court had failed to exercise the jurisdiction vested in it and consequently, such an order would be amenable to supervisory jurisdiction of the High Court under Article 227 of the Constitution. The relevant observations made in this regard are as follows :-

"21. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others, (2003) 6 SCC 675."

In the instant case, on the other hand, the executing court decided the objection filed by the petitioner on merits and returned a finding that the father of the petitioner was a recorded tenure holder, consequently, the defendants had no right to enter into agreement for sale. It accordingly allowed the objection filed by the petitioner. The adjudication made by the executing court amounted to a deemed decree within the meaning of Order 21, Rule 103 CPC. It is for the said reason, a regular civil appeal was filed by the decree holder. Now that appeal has been decided, though as per counsel for the petitioner, upon misconstruction of legal position, the same itself would not entitle the petitioner to bye-pass the remedy of second appeal provided under the Civil Procedure Code and invoke supervisory jurisdiction of this Court. The decision of the appellate court passed in civil appeal allowing the same, would remain a judgement passed against deemed decree by the executing court. Order 21, Rule 103 CPC specifically provides that not only order made on application under Order 21, Rule 97 CPC would have the force of a decree but it shall be subject to same condition as to an appeal or otherwise as if it were a decree.

Since the remedy is available to the petitioner under the Code itself, therefore, this Court refrains from exercising its supervisory power under Article 227 of the Constitution.

The petition is accordingly dismissed with liberty to the petitioner to avail the remedy provided under the Code of Civil Procedure.

Certified copies of the impugned judgement and decree shall be returned to learned counsel for the petitioner after retaining its photostat copy on record.

Order Date :- 28.3.2019

skv

(Manoj Kumar Gupta, J.)