Seth Daryablal Manik Lal Tadaiya ... vs Siddh Gopal Kudariya And Another
2022 Latest Caselaw 224 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 24.02.2022
 
Delivered on 28.03.2022
 
Court No. - 10
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 837 of 2022
 
Petitioner :- Seth Daryablal Manik Lal Tadaiya And Another
 
Respondent :- Siddh Gopal Kudariya And Another
 
Counsel for Petitioner :- Shreya Gupta,Ravi Anand Agarwal
 
Counsel for Respondent :- Rama Goel Bansal,Shalini Goel
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Ms. Shreya Gupta, learned counsel for the petitioners and Ms. Rama Goel Bansal, learned counsel for the respondent no. 1.

2. This is a petition filed under Article 227 of Constitution of India challenging the judgment and order dated 04.01.2022 passed by District Judge, Jhansi in S.C.C. Revision No. 39 of 2021 as well as judgment and order dated 30.10.2021 passed by Judge Small Causes, Jhansi in Misc. Case No. 28 of 2019 rejecting the application filed by objectors/petitioners under Order 21 Rule 97-101 C.P.C. and Section 151 C.P.C. and allowing the application 39-C filed by the decree-holder/respondent no. 1.

3. Facts in nutshell giving rise to the petition are that the decree-holder/respondent no. 1 filed a S.C.C. Suit No. 53/2013 against respondent no. 2 for arrears of rent and ejectment. The decree-holder, claiming himself to be the landlord of the first floor of House No. 196, Jawahar Chowk, City- Jhansi which was rented to respondent no. 2 at monthly rent of Rs.100/- since the year 1986. According to decree-holder/respondent no. 1, respondent no. 2 defaulted in payment of rent since 01.06.2005, despite demand. A notice was issued on 12.07.2013 which was served upon tenant-respondent no. 2 on 19.07.2013 determining the tenancy and demanding arrears of rent. When the rent was not tendered, a S.C.C. Suit No. 53 of 2013 was filed on 13.08.2013 which was decreed by the judgment and decree dated 28.03.2017 passed by Judge, Small Cause Court, Jhansi. Against the said order, S.C.C. Revision No. 24 of 2017 was filed which was dismissed by judgment dated 25.09.2019 passed by Additional District Judge/ Special Judge (S.C./S.T. Act), Jhansi.

4. The tenant-respondent no. 2 challenged both the orders before this Court through Writ Petition No. 8309 of 2019, under Article 227 of Constitution of India. This Court vide judgment dated 14.11.2019 dismissed the writ petition and found the tenant to be in arrears of rent and liable to be ejected. Immediately after two days on 16.11.2019, the present petitioners filed an application under Order 21 Rule 97-101 and Section 151 C.P.C. on the ground that the property in dispute was let out to the firm Seth Daryablal Manik Lal Tadaiya, whose proprietor was one Sunil Kumar Tadaiya who had died on 11.05.2015 and after his death, petitioner no. 2, Smt. Lata Tadaiya had become the proprietor of the firm. It was further contended that shop in question was let out to the firm in the year 1967 by one Shankar Lal Kudariya, father of decree-holder, respondent no. 1 and it was a partnership firm which continued to run till 1988, and after its dissolution the firm continued as a proprietorship. The firm had been paying rent to the father of decree-holder/ respondent no. 1. After death of Shankar Lal Kudariya, his son respondent no. 1 and his brother, Dr. Awadh Kishore took the rent. It was further stated in the application that firm had tendered rent from 01.10.2000 to 30.11.2004 amounting to Rs.10,000/- on 28.06.2008. According to the application, the decree-holder, respondent no. 1 in collusion with respondent no. 2 had got the decree for eviction without information to the petitioners. In Para 9 of the application, it has been stated that it was for the first time in month of October, 2019 that petitioners got information regarding the judgment in the matter by Judge Small Cause Court. The said application was contested by the decree-holder/respondent no. 1 and an objection was filed wherein the contents made in the application were vehemently denied. It was stated that the petitioner no. 2, Smt. Lata Tadaiya is the sister-in-law of respondent no. 2 and after the writ petition was dismissed on 14.11.2019, the application under Order 21 Rule 97 C.P.C. was filed at the behest of respondent no. 2 through the petitioners. The Judge, Small Cause Court on 30.10.2021 dismissed the application which was registered as Misc. Case No. 28 of 2019 on the ground that the application was filed to delay the execution proceedings launched by decree-holder/ respondent no. 1 being Execution Case No. 29 of 2017. Against the said order, a S.C.C. Revision No. 39 of 2021 was filed which was also dismissed on 04.01.2022. Hence, the present petition.

5. Ms. Shreya Gupta, learned counsel for the petitioners submitted that both the courts below were not correct to reject the application filed by third party objectors/petitioners under Order 21 Rule 97-101 C.P.C. which enjoins the executing court to adjudicate all questions (including questions relating to right, title and interest in the property) arising between the decree-holder and the third party. According to her, the executing court should have framed issues and adjudicated the dispute that has arisen between the parties.

6. She further submitted that revisional court had wrongly recorded finding on the basis of rent receipt issued in the name of petitioner firm, paying rent through Sushil Kumar Tadaiya, respondent no. 2. The courts below by refusing to frame issues and give opportunity to petitioners to lead evidence is against the provisions of Rule 97-101 of Order 21 C.P.C. According to her, the petitioners have prima facie established a case through documentary evidence that petitioner firm was let out the shop in the year 1967 and at present it was sole proprietorship firm and judgment and decree passed by courts below were collusive and without hearing the petitioners. The courts have not followed the procedure as established under law. Reliance has been placed upon decision of Apex Court in case of Shreenath and others vs. Rajesh and others, AIR 1998 SC 1827; Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 and Silverline Forum Pvt. Ltd. vs. Rajiv Trust, AIR 1998 SC 1754.

7. Ms. Rama Goel Bansal, learned counsel appearing for the decree-holder/ respondent no. 1 submitted that present proceedings has been set up by judgment debtor, respondent no. 2 through petitioners, as the petitioner no. 2 is sister-in-law of respondent no. 2. She contended that the shop in question was let out in the year 1986 to respondent no. 2 who had been continuously paying the rent to respondent no. 1 and when default was committed the suit for arrears of rent and ejectment was filed which was decreed by the Judge, Small Causes on 28.03.2017 and the revision filed against the said judgment was also dismissed on 25.09.2019. The respondent no. 2 had challenged both the orders through writ petition and the writ petition was dismissed on 14.11.2019. According to Ms. Bansal, immediately after the dismissal of the writ petition the present Misc. Case No. 28 of 2019 was filed by petitioners on 16.11.2019 to thwart the execution proceedings filed by the decree-holder/respondent no. 1 being Execution Case No. 29 of 2019. According to her, the said proceedings are only to delay the execution case and the decree-holder could not get the fruits fructified pursuant to judgment and decree passed by courts below. She has relied upon the decision of Apex Court in case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, (1998) 3 SCC 723, Para Nos. 10 to 15; Bool Chand (D) Through Legal Heirs and others vs. Rabia and others, 2016 Supreme (SC) 1656; Noorduddin vs. Dr. K.L. Anand, (1995) 1 SCC 242; Shreenath and another vs. Rajesh and others, (1998) 4 SCC 543 and N.S.S. Narayana Sarma and others vs. Goldstone Exports (P) Ltd. and others, (2002) 1 SCC 662.

8. I have heard counsel for both the parties and have given careful consideration to the material on record.

9. The question which emerges for consideration is whether an application filed by a third party objector under Order 21 Rule 97-101 C.P.C. in execution proceedings, the same has to be mandatorily considered after framing of the issues and treating it to be a suit.

10. Before adverting to decide the issue in hand, a cursory glance of Order 21, Rule 35; Order 21, Rule 36 and Order 21 Rule 97 to 101 is necessary, which are extracted hereasunder:-

"35. Decree for immovable property.--(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

36. Decree for delivery for immovable property when in occupancy of tenant--Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

97. Resistance or obstruction to possession of immovable property.--(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

98. Orders after adjudication.--(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

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.

100. Order to be passed upon application complaining of dispossession.--Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

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."

11. From the reading of sub-clause (1) of Rule 35 Order 21, it is clear that the executing court delivers actual physical possession of the disputed property to the decree-holder or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. The significance is of the words removing any person bound by the decree.

12. Rule 36 of Order 21 envisages that when the immovable property is in possession of a tenant or other person not bound by the decree, the Court delivers possession by affixing a copy of the warrant in some conspicuous place of the said property and proclaiming to be occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

13. While Order 21 Rule 97 envisages resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property. Rule 101 provides for 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 shall be determined by the Court dealing with the application and not by separate suit for this purpose. Rules 97 and 101 were amended by Amending Act of 1976 so as to shorten the litigation as the decree-holder could not get the fruits of the decree fructified due to long drawn battles.

14. Thus, from the conjoint reading of Rule 35 of Order 21, Rule 36 of Order 21 and Rules 97 to 101 of Order 21, it culls out that Rule 35 Order 21 deals with delivery of possession of an immovable property to the decree-holder by delivery of actual physical possession and removing any person in possession who is bound by the decree, while Order 21 Rule 36 provides only for a symbolic possession where the tenant is in actual possession. While Order 21 Rule 97 conceives of cases where delivery of possession to the decree-holder is resisted by any person. "Any person". "Any person" is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including a stranger. Prior to 1976 Amendment, Rule 101 of Order 21 was different and by virtue of then Rule 103, a person was to file a suit for establishing his right, but post amendment one need not file suit even in such case as all disputes are to be settled by executing court itself finally under Rule 101 of Order 21 C.P.C.

15. In the case in hand, the eviction proceedings by decree-holder/ respondent no. 1 were launched against respondent no. 2 in the year 2013 and the suit was decreed on 28.03.2017. The respondent no. 2 had challenged the order through S.C.C. Revision which was also dismissed on 25.09.2019 and finally the matter stood decided by judgment of this Court dated 14.11.2019, writ petition filed by respondent no. 2 having been dismissed.

16. Present litigation was started at the behest of petitioners by filing application under Order 21 Rule 97-101 C.P.C. on 16.11.2019, immediately after two days of dismissal of the writ petition filed by respondent no. 2. The important fact for consideration is that petitioner no. 2 and respondent no. 2 are related to each other. Respondent no. 2 is brother-in-law of petitioner no. 2 and real brother of Sunil Kumar Tadaiya, who is alleged to have died in the year 2015.

17. In the application filed by petitioners, it has been contended that the shop in question was let out by father of decree-holder/respondent no. 1 in the year 1967. It was a partnership firm and the same carried out the business till 1988, when it was converted into a proprietorship business and was rented by husband of petitioner no. 2, Sunil Kumar Tadaiya in the name of Seth Daryablal Manik Lal Tadaiya.

18. Both courts below have dismissed the application under Order 21 Rule 97 on the ground that the present set of proceedings have been launched as a dilatory tactics to linger on the case and so the decree be not executed in favour of respondent no. 1. The courts below have recorded finding that cheque which was issued for payment of rent from 2000 onwards was by Sushil Kumar Tadaiya, respondent no. 2, thus, the stand taken that partnership firm was reconstituted and the sole proprietorship continued by Sunil Kumar Tadaiya from 1988 onwards was against the material on record.

19. This Court finds from the reading of the application filed by petitioners that there is no disclosure as to the fact that who are the partners of the firm which was constituted in the year 1967 and until it was reconstituted as a sole proprietorship. The finding recorded by courts below to the extent that neither the application disclosed the said fact nor any material has been brought on record except the rent receipts which are issued in the name of respondent no. 2, Sushil Kumar Tadaiya in the year 2008 establishes the fact that he was in possession over the shop in dispute as the tenant.

20. This Court also finds that the petitioners have not disclosed any fact in relation to the partnership firm and its partners who were running the business from the shop in question, only a sketchy disclosure has been made in the application claiming themselves to be in possession of the property.

21. The Apex Court in case of Silverline Forum Pvt. Ltd. (supra) while dealing with somewhat similar issue under Order 21 Rule 97 held that all questions arising between the parties to a proceeding on an application under Rule 97, would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised. According to the Court, the question which executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties. The Court further held that in adjudication process envisaged under Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. Relevant paragraphs 10 to 14 are extracted hereasunder:-

"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.

11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.

12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.

13. In the above context we may refer to Order 21 Rule 35(1) which reads thus:

"35. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property."

14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."

22. In Bool Chand (supra), the Apex Court held that a genuine petition to execution of a decree can certainly be considered and frivolous objections which deprive the decree-holder of benefit of such decree should be discouraged. Relevant paras 11 and 12 are extracted hereasunder:-

"11. It is clear from the finding recorded by the courts below that the predecessor of the respondents was party to the sale certificate which the respondents never challenged. There is no evidence on record that they were in possession prior to the passing of the decree as they did not take part in proceedings in spite of knowledge of the proceedings for a long period of time. The suit was duly contested by the original defendants for a long period of 30 years. It could not, thus, be held that the original defendants had colluded with the appellant-plaintiffs. In this view of the matter, there was no justification for the High Court to have set aside the order of the courts below only by observing that the executing court had not recorded finding that regular enquiry, as suit, was not required. This observation is also against the record as the executing court has, after finding that the objections were misconceived in substance, held that no regular enquiry as a suit was required. There was thus, no infirmity in the finding recorded by the courts below in rejecting the objections.

12. While a genuine petition for execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long-drawn contested proceedings. Attempt to deprive the decree-holder of benefit of such decree should be discouraged by the court where such objection is raised. The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach."

23. In Noorduddin (supra), the Apex Court held that the scheme of the Code pursuant to the amendment of 1976 appears to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. Relevant paragraphs 8 and 9 are extracted hereasunder:-

"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.

9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like (sic) in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution."

24. In Shreenath (supra), the Supreme Court while considering the application under Order 21 Rule 97-101 relying upon the earlier decision in Noorduddin (supra) held as under:-

"1.The seeker of justice many a time has to take long circuitous routes, both on account of hierarchy of courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breathes fear of receiving the fruits of that justice for which he has been aspiring to receive. The reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of the hierarchy of courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the lower courts under the scrutiny of a higher court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seeker in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches the litigation as much as possible. Thus this has been the cause of anxiety and concern of various authorities, legislators and courts. How to eliminate such a long consuming justice? We must confess that we have still to go a long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice."

25. In N.S.S. Narayana Sarma (supra), the Court considering the earlier decisions of Apex Court in case of Shreenath (supra) and Silverline Forum Pvt. Ltd. (supra) held as under:-

"15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from "any person". From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with "all issues" relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that 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 suitand 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. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case.

(emphasis supplied)

16. Interpreting the provisions in these Rules, a three-Judge Bench of this Court in the case of Silverline Forum (P) Ltd. v. Rajiv Trust [(1998) 3 SCC 723] held : (SCC pp. 727-28, paras 10-12)

"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions ''arising between the parties to a proceeding on an application under Rule 97 or Rule 99' shall be determined by the executing court, if such questions are ''relevant to the adjudication of the application'. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.

11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.

12. The words ''all questions arising between the parties to a proceeding on an application under Rule 97' would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section."

(emphasis supplied)"

26. Thus, from the reading of provisions of Order 21, Rule 97-101 C.P.C. and decisions rendered by Apex Court, it is clear that executing court is not obliged to determine a question merely because the resistor or objector has raised it. The question which the executing court is obliged to determine under Rule 101 must possess two adjuncts. Firstly, such question should have legally arisen between the parties and secondly, it must be relevant for consideration and determination between the parties.

27. In the present case, the third party objector came into picture for the first time immediately after the dismissal of the writ petition on 14.11.2019 by this Court alleging that they were not aware of the proceedings which are going on since 2013 and for the first time came to know in October, 2019. The application under Order 21 Rule 97 C.P.C. was moved on 16.11.2019. The only fact disclosed in the application was that petitioner no. 1 which was a partnership firm was let out the shop in 1967 and continued as partnership firm till 1988 when it was converted into a sole proprietorship. Nowhere in the application, the details of the partners who constituted the firm was disclosed nor the date of dissolution of the partnership firm was mentioned. The supporting documents filed are rent receipts which are actually issued in the name of respondent no. 2, Sushil Kumar Tadaiya who is real brother of Sunil Kumar Tadaiya, the late husband of petitioner no. 2, who claims to be running the sole proprietorship since 1988.

28. The courts below had rightly rejected the application holding that it was a dilatory tactics by petitioners to stall the execution proceedings launched by decree-holder.

29. This Court finds that Apex Court had clearly interpreted Rule 97 read with Rule 101 of Order 21 post amendment wherein the executing court has to determine under Rule 101 Order 21 of the Code that the question raised has legally arisen between the parties and secondly the question must be relevant for consideration and determination between the parties.

30. In the present case, this Court finds that the application moved under Order 21 Rule 97 does not raise any question to be determined and is only an application by the sister-in-law of respondent no. 2 trying to stall and delay the execution proceeding filed by decree-holder.

31. In view of above, the question raised in the present case stands answered in view of decision of Apex Court in case of Silverline Forum Pvt. Ltd. (supra) followed in Noorduddin (supra) and Shreenath (supra) that only the question which has been legally raised by the parties and must be relevant for consideration and determination between them shall be considered and nothing beyond that.

32. Thus, considering the facts and circumstances of the case, this Court finds that no case is made out which warrants interference in the orders passed by the courts below.

33. Writ petition fails and is hereby dismissed.

34. Interim order stands discharged.

Order Date :- 28.3.2022

V.S.Singh