Shripati Ganpati Jadhav & Ors vs Chandrakant Ganpati Jadhav & Ors
2010 Latest Caselaw 182 Bom

                                      1                             WP No.8056/10

     mpt
             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                          CIVIL APPELLATE JURISDICTION
                         WRIT PETITION NO.8056 of 2010




                                                     
     Shripati Ganpati Jadhav & ors.                           ...      Petitioners 




                                                    
       versus
     Chandrakant Ganpati Jadhav & ors.                        ...      Respondents




                                         
                                            ...

Mr. Sugandh Deshmukh for the petitioners Mr.Abhaykumar Apte for respondent nos.1, 2 and 3.

CORAM : D.G. KARNIK, J DATED : 23rd November 2010

ORAL ORDER

1. Rule.

2. Mr.Apte appears for respondent nos.1 to 3 and waives

service. Respondent nos.4 to 8 are the formal parties and hence

service to them is dispensed with. By consent, taken up for

hearing forthwith.

3. Respondent nos.1 to 3 (hereinafter referred to as "the

respondents") filed a suit for specific performance of an agreement

of sale against the respondent nos.4 to 8. A decree for specific

performance was passed in their favour by the Court of Civil

Judge, Sr. Division, Pune on 6 October 1997. Respondents filed

an execution application bearing Regular Darkhast No.283/08 in

the Court of Civil Judge, Sr. Division for execution of the decree.

The present petitioners, who are the brothers and cousins of the

petitioners, claim that their common ancestor Ganpati was the

original tenant and as such they had inherited the tenancy along

with respondents and were in joint possession of the suit property.

As they were not parties to the suit they cannot be dispossessed in

execution of the decree. They accordingly filed an application

resisting the execution. They also prayed that the decree be set

aside to the extent of the petitioners' share. The respondents

resisted the application by filing a reply at Exhibit 37A. The

executing court after hearing the parties held that the contention

of the petitioners that they had 1/5th share in the tenancy rights in

the suit property was not proved and rejected the same. He

accordingly overruled the objection to the execution of the decree

raised by the petitioners, by an order dated 25 April 2010.

4. Aggrieved by the decision of the executing court rejecting the

petitioners' application, the petitioners filed an appeal, bearing

RCA No.369, in the Court of District Judge, Pune. By his judgment

and order dated 26 July 2010, the learned District Judge-12, Pune

dismissed the appeal. Aggrieved by the decision of the District

Court the petitioners are in this Court.

5. The Lower Appellate Court did not consider the appeal of

the petitioner on merits. It did not consider whether the finding of

the executing court that the petitioners had 1/5th undivided share

in the tenancy rights in the suit property and a decree for specific

performance and possession therefore could not be executed

against them. He only held that the application made by the

petitioners objecting the execution of a decree was not

maintainable under Order 21 Rule 97 of the Code of Civil

Procedure. He accordingly dismissed the appeal only on a

technical ground that the application at Exhibit-26 was not

maintainable.

6. Relying upon a decision of the Supreme Court in Brahmdeo

Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr, (1997) 3 Supreme

Court Cases 694, learned counsel for the petitioner submitted that

the appellate court erred in holding that the application of the

petitioner resisting the execution of the decree was not

maintainable under Order 91 Rule 97 of the Code of Civil

Procedure. He submitted that the ancestor of the petitioners was

the owner of the suit property and on his death, the property

devolved on the petitioners' and the other heirs of the deceased.

The respondent nos.1 to 3 had agreed to purchase the property

from other heirs without the knowledge and consent of the

petitioners. The agreement for sale executed between the

respondent nos.4 to 8 and the respondents was not known to the

petitioners. Petitioners were not party to the suit filed by

respondent nos.1 to 3 against the respondent nos.4 to 8. The

decree passed in the suit was not binding on them. They were in

joint possession of the suit property independently and their right

to remain in possession of the property was independent of the

decree for specific performance/possession passed in the suit.

Consequently, the petitioners were entitled to raise on obstruction

to execution of the decree. He further submitted that by filing an

application at Exhibit 26, the petitioners had resisted and raised an

obstruction to the execution of the decree. That objection and

resistance to the execution of the decree was required to be

examined by the executing court and was in fact examined by the

executing court. The decision of the executing court rejecting

their application was appealable under Order 21 Rule 103 of the

Code of Civil Procedure. Consequently, the appellate Court

committed an error in not considering the appeal on merits and

dismissing it by holding that application under Order 21 Rule 97

itself was not maintainable.

7. Per contra, learned counsel for the respondents submitted

that application under Order 21 Rule 97 can only be made by a

holder of decree for possession where he is resisted or obstructed

in the execution of the decree. Such an application is commonly

known as an application for removal of an obstruction. No

application can be made by a third party, who claims to be in

possession or who wants to resist or obstruct the execution of

decree for possession and/or for adjudication of his alleged right to

resist execution and/or to remain in possession. The only remedy

for a third party who claims an independent right to possess the

property is to physically resist the execution of the decree when a

possession warrant is issued and contest the application, if any,

that may be made by the decree holder under Order 21 Rule 97 of

the Code for removal of the obstruction. If a third party is illegally

dispossessed in execution of a decree for possession it can make an

application under Order 21 Rule 99 of the Code of Civil Procedure

complaining of such dispossession.

8. In my view, the contention of the petitioner is meritorious

and there is no merit in the contention of the respondents (decree

holders). The contention of the respondents in the present case is

squarely rejected by the Supreme Court in its decision in

Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr.

Paragraph no.9 of the decision reads as under:-

"In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining

to execution of decree for possession obtained by a decree- holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a

purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-

holder the remedy available to the decree-holder against such an obstructionist in only under Order 21 Rule 97 sub-

rule (1) and he cannot bypass such obstruction and insist on re- issuance of warrant for possession under Order 21 Rule

35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid

down under Order 21 Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once

such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order

21 Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in

the decretal property is to go by Order 21 Rule 99. This view of the High Court on the aforesaid statutory scheme is

clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and

interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent

right, title and interest in the decretal property even after losing possession as per Order 21 Rule 99. Order 21 Rule 97 deals with a stage which is prior to the actual execution of

the decree for possession wherein the grievance of the

obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21

Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have

got actually dispossessed and claims restoration of

possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right,

title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the

picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21 Rule 97 in

this connection by taking the view that only remedy of such stranger to the decree lies under Order 21 Rule 99 and he

has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in

the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who

alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time

before the warrant for execution is actually executed, would

be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off

lock, stock and barrel by use of police force by the decree- holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard

without being considered on merits and such obstructionist

would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On

the contrary the statutory scheme envisaged by Order 21 Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the

decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit

would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the

gamut laid down by Order 21 Rules 97 to 103 would remain a complete code and the sole remedy for the

concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves.

9. When a decree for possession of an immovable property is

put in execution and a third person is in possession of the property

claiming an independent right to possess, he can always resist the

execution of a decree when the court bailiff comes to take

possession. However, it is not necessary for him to wait till the

bailiff armed with a possession warrant comes to recover

possession. Often a bailiff does not receive or register an objection

or obstruction to the execution raised by a third party and

sometimes even Court passes an order of police aid ex-parte and

possession is sought to be taken with the help of police aid

without noting or recording an obstruction raised by a third party.

The third party who apprehends that his resistance or obstruction

to the execution of the decree would not be noted and registered

by the bailiff or the officer enforcing the decree comes to the court

even before the possession warrant is issued and makes an

application raising and his objections to the execution of a decree,

the application made by the third party ought to be treated as a

resistance or obstruction to the execution of the decree for

possession of an immovable property. Any reply which may be

filed to such an application by the decree holder can be treated as

an application for removal of the obstruction. Law does not

require that resistance or obstruction to the execution of a decree

has to be made only at the stage when the bailiff comes to the

site for delivery of possession. The obstruction can be raised even

earlier by filing an application and such an application would

have to be decided by the executing court after giving an

opportunity to the decree holder and all the concerned. So

construed the application at Exhibit-26 made by the petitioners

ought to have been treated as an obstruction or resistance to the

execution and the reply by the respondent decree holder filed at

Exhibit-37A ought to have been treated as an application for

removal of the obstruction. So treated, the order passed by the

learned executing court on 26 July 2010 was clearly appealable

under Rule 103 of Order 21 of the Code of Civil Procedure.

Consequently, the impugned decision of the District Court holding

that the appeal was not maintainable is required to be set aside

and is hereby set aside.

9. For these reasons, impugned judgment and order is set aside

and the matter is remanded back to the District Court for hearing

the appeal filed by the petitioner afresh and on merits.

10. It is clarified that all observations made in this writ petition

regarding the rights of the parties are made only for the purpose

of considering the maintainability of the appeal before the District

Court and the District Court shall decide the appeal on merits

without being in any way influenced by any of the observations

made herein.

(D.G.KARNIK, J)