Shankar Manaji Jadhav (Since ... vs Wamanrao Keshavrao Yadav
2003 Latest Caselaw 631 Bom

JUDGMENT

Ranjana Desai, J.

1. In this writ petition, there is a challenge to the order dated 28th August, 1991 passed by the District Court, Satara, on Exhibit 57 in Darkhast No. 37 of 1985 in Regular Civil Suit No. 20 of 1981.

2. The petitioners are original defendants. The respondent-original plaintiff had filed Regular Civil Suit No. 20 of 1981 for possession of the lands situated at village Khandala, Pargaon, District - Satara. On 29th June 1984, when the suit was called on for final hearing the petitioners and their advocates were absent and, hence, ex-parte decree came to be passed. It is an admitted fact that the petitioners did not take any steps for setting aside the ex-parte decree nor did they file any appeal.

3. On 10th October 1985, the respondent filed Regular Darkhast No. 37 of 1985 and sought possession of the land. It is the case of the respondent that when he had gone to take possession of the land, the petitioners obstructed him and hence he filed an application under Section 47 of the Code of Civil Procedure ('the Code' for short) read with Order XXI Rules 97 and 101 thereof, praying that the possession of the land be landed over to him by removing obstruction. It was contended by the respondent that the petitioners had not filed any appeal against the decree, that during the pendency of the suit, the respondent had obtained temporary injunction restraining the petitioners from constructing the house on the suit property and that despite the injunction order, the petitioners had constructed the house on the suit property and, therefore, in the circumstances, the obstruction be removed and possession of the suit property be handed over to him.

4. In reply, the petitioners contended that the house was not constructed after the injunction order was passed but the house was in existence even before the suit was filed and, infact, in the written statement, there is a reference to the said house. It was, inter alia, urged that the decree in question is a nullity and, therefore, the petitioners can resist the order of possession and the said decree cannot be executed.

5. The trial court by the impugned order held that all these points were already decided and they cannot be reopened now. In view of this, the trial court directed removal of obstruction. It is this order which is under challenge before me.

6. I have heard learned counsel appearing for both the sides. Mr. Gaikwad, learned counsel appearing for the petitioner strenuously contended that the house in question was in existence even when the suit was filed and this fact has been indicated in the written statement also. He further submitted that in view of Section 36-A of the Bombay Fragmentation and Consolidation of Holding Act, 1947, the said decree is a nullity and, therefore, there was no need for the petitioners to file an appeal. As against this, Mr. Sawant, learned counsel for the respondent contended that the present petition is not maintainable. From the impugned order an appeal is contemplated. The petitioner cannot approach this Court directly and hence, on this count, the petition should be dismissed in limine. In this connection, he has placed reliance on the judgment of this court in Narayan Dagadu Patil v. Sou, Hirabai Gajanan Mulik and Ors., . He has also relied on another judgment of the Madras High Court in Devaraja Pillai and Anr. v. K.R. Purushothama Chettiar and Ors., 1981 Madras Law Journal Reports 462.

7. Section 47 of the Code deals with questions to be determined by the Court executing decree. It deals with execution of all kinds of decrees. Section 47, so far as it is relevant for the present case reads thus:

"47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passe,d or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit."

8. Order 21 Rule 97 to Rule 106 deal with applications for removal of resistance to delivery of possession to decree-holder or purchaser. In Kishan Ranchoddas and Anr. v. Lalji Dharamdas Kapadia and Ors. 1982 MLJ 216, a learned Single Judge of this Court (Chandurkar, J), while dealing with these provisions, observed that the object of enacting the new provisions of Order 21, Rule 97 to Rule 106 was to expedite the trial of the issues involved in the claim made by the obstructionist to the property in dispute and to see that the execution of the decree is not unnecessarily delayed and that obstructionist proceeding now contemplated under the amended provisions is really a full fledged trial of the issues relating to right, title or interest in the property claimed by the obstructionist.

9. It is necessary to quote Rules 97, 98, 99, 100, 101 and 103 as they are of some importance to this case.

Order 21 Rule 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."

Order 21 Rule 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 it.

(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 this 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 till 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."

Order 21 Rule 99,

"Dispossession by decree-holder or purchase.- (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."

Order 21 Rule 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."

Order XXI Rule 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."

Order XXI Rule 103, "Orders to be treated as decrees.- Where any application has been adjudicated upon under Rule 98 or Rule 100, 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 were a decree."

10. Rule 97 provides that an application can be made by the holder of a decree for the possession of the immovable property, or the purchaser of such property sold in execution of a decree, if he is obstructed by any person in obtaining possession of the property.

11. Rule 99 deals with dispossession of immovable property of any person other the judgment-debtor by the holder of a decree. It also deals with dispossession of the purchaser of such property in execution of a decree. Such persons can also make application complaining of such dispossession.

12. Rule 101 states that all questions (including question relating to right, title or interest in the property arising between the parties to a proceeding or an application under Rule 97 or Rule 99 have to be determined by the court dealing with the application and not by a separate suit.

13. After dealing with the application made under Rule 97 by the holder of a decree or by the purchaser complaining of obstruction by any person in obtaining possession, or after dealing with the application made after dealing with the application made under Rule 99 by any person other than judgment debtor or by purchaser of property in execution of a decree, complaining of dispossession, the court may pass orders under Rule 98 or Rule 100 respectively. The court may direct that the applicant be put into possession of the property or may dismiss the application or may pass other appropriate orders.

14. Under Rule 98(2), if the court is satisfied that the obstruction is occasioned without any just cause, it can direct the applicant to be put into possession of the property and if the obstruction still persists, it may order the judgment-debtor or any person acting at his instigation to be detained in civil prison for a term which may extend to 30 days.

15. Rule 103 is important. It gives such orders the character of decrees and makes them subject to the same conditions as to an appeal or otherwise as if it were a decree.

16. The submission that the impugned order is appealable appears to be correct. In Kishan's case (supra), this court was dealing with the question whether the suit filed by the petitioners therein to establish their rights of tenancy after an order in an obstructionist proceeding is made against them, is maintainable after the amendment of Order 21, Rule 103 of the Code. In this context, the court observed that the scheme of the unamended Code was that the obstructionist, not being a judgment-debtor, had two opportunities to establish his rights. If there was an obstruction in the execution of the decree, then a summary inquiry was permissible and if the obstructionist was unsuccessful in that summary inquiry, he had the right to have his right established by a regular suit. The object of inserting new Rule 101 is obviously to do away with the quality of the proceedings which were contemplated under the unamended Code. The court emphasized that now under the new Rule 103, the order made on the application under Rule 98 or 100 is itself made appealable as if it were a decree.

17. However, orders under Section 47 of the Code are not appealable. In Rameshkumar Swarupchand Sancheti and Anr. v. Rameshwar Vallabhram Bhatwal and Anr., , the execution proceedings were initiated after the Amendment Act No. 104 of 1976 came into force. The court considered the omission of words "Section 47 or" from Section 2(2) of the Code and held that it is not accidental but intentional and the earlier statutes of a decree of orders made under Section 47 is now withdrawn and therefore the said orders are not appealable.

18. In the present case, the respondent has described his application as one under Section 47 read with Order 21, Rule 97 an Rule 101 of the Code. However, in fact, it is an application under Order 21, Rule 97 and Rule 101 of the Code. The judgment in Jagdish Lal and Anr. v. Surendra Kumar and Ors., AIR 1985 Punjab & Haryana supports this conclusion. In that case, the suit for possession was decreed. The judgment-debtors obstructed the decree-holder in obtaining possession. Application under Order 21 Rule 97 of the Code was filed by the decree-holder. Judgment-debtors filed reply. It was contended that one of the decree-holders had allowed them to continue after increasing the rent. The court held that decree was unexecutable. The decree-holder filed an appeal. It was argued that the executing court while allowing the objection taken by the judgment-debtors decided the application under Section 47 of the Code and hence appeal was not maintainable. The executing court held that the appeal was maintainable. When the matter reached the High Court, the High Court held that the objections filed by the judgment-debtors were fully covered by Order 21 Rule 97 and not by Section 47 of the Code because, the dispute was relating to right, title and interest in the property as contemplated by Rule 97. The relevant observations of the High Court are as under.

"Under Section 47 questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree are covered whereas under Order 21 Rule 97 read with Rule 101 questions including those relating to right, title or interest in the property arising between the parties to the proceeding on an application under Rule 97 or Rule 99 of Order 21 are to be determined by the executing Court. Under Section 47 all questions relating to the execution, discharge or satisfaction of the decree have to be determined by the executing Court whereas under Rule 101 all questions including questions relating to right, title or interests in the property arising between the parties to the proceedings have to be determined by the executing Court. Thus there is no conflict between both the provisions. Section 47 is a general provision whereas Order 21 Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals with excitations of all kinds of decrees whereas Order 21 Rules 97 and 101 deal only with execution of decree for possession. Apart from that, earlier i.e. prior to the amendment, every order failing under Section 47 was appealable (as the term 'decree' included the order under Section 47) whereas now only certain orders as provided for under Order 21 have been made appealable."

19. In this case, the suit is for possession of land. The suit was decreed. The respondent/ decree-holder has complained that he possession warrant returned unserved because of the obstruction created by the judgment-debtor. The judgment-debtor has constructed a house on the suit property. He has prayed that, that obstruction be removed and the lands be handed over to him. Therefore, the questions arising between the parties are not related to the execution, discharge or satisfaction of the decree pertaining to the land covered by Section 47 of the Code, but are those related to right, title or interest in the house, which according to the judgment-debtor belongs to him and was there right from the beginning. Hence, the present case is covered by Order 21 Rule 97 read with Rule 101 of the Code. Therefore, an appeal would lie from the impugned order.

20. In Narayan Patil's case (supra), this court has confirmed that against order made under Order 21, Rule 98, an appeal lies. Same view is taken by the Madras High Court in Devraja Pillai's case (supra).

21. In view of this legal position, the present writ petition is not tenable. An appeal would lie against the impugned order. The petitioners may, if so advised, file an appeal before the District Court against the impugned order. It is clarified that this court has not gone into the merits of the case and all rights and contentions of both the parties are kept open.

22. Writ Petition is disposed of in the aforesaid terms. Rule is discharge accordingly.

23. Certified copy expedited.