Roshanlal S/O Jagannath Agrawal vs Avinash S/O Narsinghsaw ...
2002 Latest Caselaw 588 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Non-applicants 1 to 4 instituted Regular Civil Suit No. 395/1982 against non-applicants 5 and 6 before the learned Joint Civil Judge, Junior Division, Gondia. The applicant was not a party to the suit. During the course of the proceedings of a Loknyayalaya held on 31st July, 1994, the suit came to be compromised and it has been stated that a compromise decree was drawn up. Insofar as the terms of the compromise are concerned, clauses 1 and 2 are material for the purpose of the present proceeding and provide as follows

"(1) The defendant Nos. 1 and 2 will deliver possession of the suit, house No. 4 and 4(1) as shown in partnership deed till 31-8-1994. Out of the suit premises, they will deliver vacant possession of 5 rooms and open portion of Kirti Lodge and symbolical possession of the Kirti Restaurant in actual possession of Roshanlal Agrawal;

(2) in accordance with this compromise, of the actual possession of Kirti Restaurant is not given by Roshanlal Agrawal and, for obtaining actual possession, if the plaintiff, are required to take legal action then the defendants Nos. 1 and 2 will co-operate (sic) the plaintiffs and they will be liable for that."

2. On 26th September, 1994 a notice came to be issued by the decree holders to the applicant calling upon the applicant to deliver possession of that portion of the restaurant which was in his possession and to pay damages until possession was handed over. The applicant, by his reply dated 25th October, 1994 denied that he was liable to hand over possession. His case is that he had been inducted into the premises under a lease deed dated 15th May, 1978. A copy of the lease deed has been placed on the record of these proceedings. Insofar as is material, the deed provides that the applicant would be entitled to run the restaurant for a period of five years from 1-4-1978 to 31-3-1983. The case of the applicant is that the document of Lease was executed by non-applicants 5 and 6 and that non-applicant 1 was an attesting witness thereto.

3. The decree holders In Regular Civil Suit No. 395/1982 initiated execution proceedings being Regular Darkhast No. 89/1994, before the Executing Court. The applicant was impleaded as a party to the execution proceedings as non-applicant 3. Thereupon, the applicant moved an application, Exhibit-14, for deleting his name from the array of parties. That application has been dismissed by the impugned order dated 20th September, 1995. The Executing Court accepted the submission of the decree holders that the applicant is in actual possession of the suit premises and held that since he is in possession, the compromise decree cannot be executed without making him a party to the proceeding.

4. The grievance of the applicant is that though the compromise decree expressly provides in Clause (1) that only symbolical possession of the restaurant would be handed over to the decree holders since the actual possession of the restaurant was with the applicant, what is sought to be done is to physically remove the applicant from the restaurant in the guise of executing the decree. In paragraph 4 of the Civil Revision Application it has been stated that after the application moved by the applicant here-in for deleting his name from the array of parties was rejected, the learned Trial Judge posted the Regular Darkhast for further orders and for issuing a warrant of possession.

5. Now it is a well settled principle of law, following the decision of the Supreme Court in Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal and Anr., 1997 (J) Mh.LJ. 817, that the provisions contained in Order XXI of the Code of Civil Procedure, 1908, lay down a complete Code for resolving all disputes pertaining to the execution of a decree for possession obtained by a decree holder and whose attempts at executing the decree are obstructed. Once a resistance is offered by a stranger to the decree and which comes to be noted by the Executing Court, the remedy available to the decree holder against the obstructionist is under Order XXI, Rule 97(1). The Court is empowered to proceed to adjudicate upon the application in accordance with the provisions contained therein. The Supreme Court has held that the decree holder cannot by-pass such an obstruction and insist upon the reissuance of a warrant of possession under Order XXI, Rule 35, as that would amount to bypassing and circumventing the procedure laid down under Order XXI, Rule 97, The Supreme Court has held that a stranger to a decree who claims an independent right, title and interest in the decretal property can offer his resistance both before he is actually dispossessed as well as in a situation where he has been dispossessed in the course of the execution. These two stages are provided for in Order XXI, Rule 97 and Order XXI, Rule 99 respectively. Therefore, it is now well settled that it is not as if a stranger to a decree can assert his right only after he has lost possession and not before it, if he is vigilant enough to raise his objection and obstruction before the decree for possession is actually executed against him.

6. In the present case, the contention of the applicant is that the compromise decree only provides for symbolical possession being handed over to the decree holder and, therefore, there is no question of the court issuing a warrant of possession directing that the applicant should be forcibly dispossessed or removed.

7. The merits of the rival contentions of the parties have obviously to be considered by the Executing Court. At present stage, the Court is only concerned with the order passed by the Executing Court declining to delete the applicant from the array of parties to the execution proceeding. Having heard the learned counsel for the contesting parties, I was of the view that the impugned order of the Executing Court declining to delete the applicant from the execution proceedings would not by itself call for interference in the exercise of the revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Apart from the point that there is no case decided, which would warrant the interference of this Court, the Civil Revision Application is clearly at a premature stage of the matter since the Executing Court has yet to apply its mind to the meaning and purport of the compromise decree, which has been passed and in regard to such rights which, the applicant asserts. All these aspects have necessarily to be and shall be considered by the Executing Court. However, regard must be had to the averment contained in paragraph 4 of the Civil Revision Application, which is to the effect that the Executing Court had posted the matter for the issuance of a warrant of possession against the applicant. The learned counsel appearing on behalf of the decree holders has not been in a position to factually controvert this averment. The learned counsel for the decree holders was candid enough to state that her clients cannot assure the Court that only symbolic possession of the restaurant was sought to be taken or that the Applicant would not be physically evicted. If what has been averred in paragraph .4 of the Civil Application is correct, then there can be no doubt that the approach of the Executing Court suffered from a serious irregularity in the exercise of jurisdiction. The stage for issuing a warrant of possession against the Applicant had not arrived because the objections of the Applicant were still to be heard. The most important of those is that a decree for symbolic possession cannot be executed by requiring the applicant, who is a stranger to the decree to hand over vacant possession. Rule 35 of Order XXI of the Code of Civil Procedure provides that 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 his agent by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. On the other hand, under Rule 36, where a decree is for the delivery of 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. These provisions have been construed in two recent judgments of the Supreme Court in N.S.S. Narayana Sarma and Ors. v. Goldstone Exports(P) Ltd., and Ratan Lal Jain and Ors. v. Uma Shankar Vyas and Ors. . In the subsequent judgment in Ratanlal Jain's case, Mr. Justice Lahoti speaking for a bench of two learned Judges, held that Rule 35 of Order XXI contemplates actual or physical delivery of possession while Rule 36 provides for the delivery of formal or symbolic possession. The Court then held as follows :--

"In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. (See five-Judge Bench decision in Juggobundhu Mukerjee v. Ram Chander Bysack and Full Bench decision in Jayagopal Mundra v. Gulab Chand Agarwalla). The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree holder."

The contention of the applicant is that the decree which has been passed and which is sought to be put into execution provides only for the delivery of symbolic possession. Therefore, the contention is that there is no question of the applicant being required to hand over vacant or peaceful possession. The Executing Court will have to have due regard to this submission which has been urged on behalf of the applicant. It is for the Executing Court to determine the question and it would be necessary to direct that the Executing Court shall consider the aforesaid objections in the light of the well settled law laid down in the binding judgments of the Supreme Court. The appropriate course of action for the applicant would be to place all his objections on the record of the Executing Court. The objections of the applicant would necessarily have to be considered by the Executing Court before any final order is passed. Therefore, It would be necessary to clarify that the applicant would be at liberty to place his objections before the Executing Court and the Executing Court shall decide those objections in accordance with the provisions of Order XXI of the Code of Civil Procedure, 1908, after hearing the contesting parties' objections. The learned counsel appearing on behalf of the applicant states that the objections, which the applicant has, shall be placed before the Executing Court within a period of one month from today. The Executing Court shall take further steps in the matter in accordance with the provisions of Order XXI only after the objections of the applicant have been duly considered and disposed of. The Civil Revision Application is accordingly disposed of in the aforesaid terms.