Co-Operative Stores vs B.D. Sharma
1996 Latest Caselaw 144 Del

JUDGMENT

N.G. Nandi, J.

(1) E.A. No. 34/95 This Ea under sections 47 and 151 read with Order 41, Rules 97 and 101 Civil Procedure Code is by three applicants, stating themselves to be the bonafide occupiers of shops No. 213, 211 and 211A at Mohan Singh Market, popularly known as I.N.A. Market near Safdarjang Hospital, New Delhi, further stating that on 21.1.1995, the applicants learnt that the officials of the Cooperative Stores Ltd. had come to the shop for executing the decree of ejectment against one Mr. B.D.Sharma, New Prominent Tailors & Drappers, Vijay Sales Corporation, Bharat Bag House, Super Stitch Tailor and Janata Tea House.

(2) As far as this Ea is concerned, it is the say of the applicants that they are in bonafide occupation of the shops in question since 1987; that the shop of the Dh is situated at 10 paces away from the premises in question; that the applicants spent money to renovate the shops in question and made the same habitable after considerable expenses and that in 1988, applicant No.l entered into an agreement with Delhi Consumer Cooperative Whole Sale Stores Limited, Moti Nagar, New Delhi. The say of the opponents is that the application is a sheer abuse of process of law; that the applicants are guilty of suppression of facts and have played fraud on the court; that the applicants have no locus standi to move the present application as they are sheer tresspassers; that the opponent-DH filed suit No.l411/83 for possession of four shops, viz. Shop No-211,212,213 and 214 and the Central Hall having two enterances; that the said suit was originally filed in the year 1980 in the court of District Judge and thereafter, the same stood transferred to this court; that the six defendants, who were in possession of the shops at the time of filing of the suit were imp leaded as the defendants; that the decree for possession came to be passed against all the defendants/JDs; that in execution of the said ejectment decree, the decree "holder went to take possession on 30.11.94; that the bailiff had firstly taken the possession of the Central Hall and handed over the same to the representative of the D.H. but the applicants, later on, broke open the lock, which was applied on the Central Hall by the D.H. and trespassed upon the premises in question; that these applicants filed similar application i.e. Ea 336/94 stating that they have come to know about decree on 30.11.94 and prayed for stay of execution of the warrants of possession which this court was not inclined to grant; that thereafter, concealing the fact of Ea 336/94 and the order passed therein, the applicants have filed the present Ea and obtained exparte order; that the applicants are not in lawful occupation of the premises- nor they do have any independent right and that they have not been inducted by the decree holder at any point of time.

(3) It is submitted by Mr. Bindra, counsel for the applicants that suit No. 1411/83 was decided ex parte on 7.7.1993; that the J.Ds. have been sponsored by some body; that the applicants are in independent and bonafide physical possession of the suit shop and that they are not put up by the J.Ds.; that the property in question is a government property and the D.H. did not join these applicants as the party in the suit because the government is going to regularise the possession of the occupants in the shops; that this is the only forum where the applicants can come and that the applicants' possession be enquired into. As against this, it is submitted by Mr. Bagai, counsel for the opponents-DH that the applicants- do not have any independent possession; that in 1972, the JDs were granted licence in respect of four shops and Central Hall; that in the year 1980, ejectment suit was filed against the licencee which suit later on was transferred to this court; that the said suit came to be decreed on 7.7.93; that prior to this Ea, Ea 336/94 was filed by all the objectors; that in that Ea, it has been stated that the knowledge about the decree was drawn on the applicants on 30.11.94 whereas in para 6 of this Ea it is stated that the applicants came to know about the passing of the decree on 20.1.1995 and in Ea 336/94 the prayer for stay of the execution of decree was not granted ex parte and notice was issued to the Dh, which fact has been suppressed in the present EA; that the applicants had also filed civil suit without making D.H. a party and in that suit also, the injunction restraining the defendants (Director of Estate & Another) from dispossessing the plaintiffs from Shops No-213 and 211 situated at Ina market was refused.

(4) E.A. No. 98/95 This Ea under sections 47 and 151 read with Order 41, Rules 97 and 101 Civil Procedure Code is by the applicant, staling himself to be the bonafide occupier of shop No. 214 at Mohan Singh Market, popularly known as I.N.A. Market near Safdarjang Hospital, New Delhi, further staling that during the pendency of suit No. 491/93 the applicant came to know that the decree-holder had filed a suit against Shri B.D. Sharma and others for eviction from the premises including shop No.214.

(5) As far as this Ea is concerned, it is the say of the applicant that he is in bonafide occupation of the shop in question from May 1981; that the shop of the Dh is situated at 10 paces away from the premises in question; that the applicant spent considerable amount and got the shop renovated and has been doing the business of running beauty parlous therein in her independent right. As against this, the say of the opponent is that the application is a sheer abuse of process of law; that the applicant is guilty of suppression of facts and have played fraud on the court; that the applicant has no locus standi to move the present application as the applicant is sheer tresspasser; that the opponent-DH filed suit No-1411/83 for possession of four shops, viz. Shop No-211,212,213 and 214 and the Central Hall having two enterances; that the said suit was originally filed in the year 1980 in the court of District Judge and thereafter, the same stood transferred to this court; that the six defendants, who were in possession of the shops at the time of filing of the suit were imp leaded as the defendants; that the decree for possession came to be passed against all the defendants/JDs; that in execution of .the said ejectment decree, the decree holder went to take possession on 30.11.94; that the bailiff had firstly taken the possession of the Central Hall and handed over the same to the representative of the D.H. but the applicant, later on, broke open the lock, which was applied on the Central Hall by the D.H. and tress- passed upon the premises in question; that these applicant filed similar application i.e. Ea 336/94 stating that he have come to know about decree on 30.11.94 and prayed for stay of execution of the warrants of possession which this court was not inclined to grant; that thereafter, concealing the fact of Ea 336/94 and the order passed therein, the applicant have filed the present Ea and obtained exparte order; that the applicant is not in lawful occupation of the premises nor he do have any independent right and that he have not been inducted by the decree holder at any point of time.

(6) It is submitted by Mr. Roy, counsel for the applicant that suit No. 1411/83 was decided ex parte on 7.7.1993; that the J.Ds. have been sponsored by some body; that the applicant is in independent and bonafide physical possession of the shop and that he is not put up by the J.Ds.; that the property in questions is a government property and the D.H. did not join this applicant as the party in the suit because the governments going to regularise the possession of the occupants in the shops; that this is the only forum where the applicant can come and that the applicant's possession be enquired into. As against this, it is submitted by Mr. Bagai, counsel for the opponents- Dh that the applicant does not have any independent possession; that in 1972, the JDs were granted licence in respect of four shops and Central Hall; that in the year 1980, ejectment suit was filed against the licencee which suit later on was transferred to this court; that the said suit came to be decreed on 7.7.93; in Ea 336/94 the prayer for stay of the execution of decree was not granted ex parte and notice was issued to the Dh, which fact has been suppressed in the present EA; that the applicants had also filed civil suit without making D.H. as a party and in that suit also, the injunction restraining the defendants (Director of Estate & Another) from dispossessing the plaintiff from Shop No-214 situated at Ina market was refused.

(7) It is not much in dispute that the opponent/DH filed a suit for ejecting the licencees from the shops bearing No. 211, 211A, 213 and 214, situated at Mohan Singh Market, known as Ina Market, New Delhi in the year 1980 in the District Court, the said suit later on came to be transferred to this court and was numbered as S.No.l411/83. Admittedly, the exparte decree for ejectment came to be passed against the defendants/JDs in respect of the shops in question and the Central Hall. According to the D.H., the decree in ejectment for the Central Hall was executed and possession thereof handed over to the representative of the D.H. who applied the lock on the Central Hall but afterwards, breaking open the locks, the applicants trespassed in the premises in question. Admittedly, the applicants are in physical possession of the shops. According to the applicants they are in possession of these shops from 1987.

(8) The order sheet suggests that this applicant had earlier filed Ea 336/94 and prayed that the execution proceedings against the applicants in respect of shop No. 211, 211A, 213 and 214, Mohan Singh Market, New Delhi be stayed till the rights of the applicants in respect of the same are decided. Order dated 5.12.94 suggests issue of notice to the non-applicant, returnable on 6.12.1994, the date already fixed. By Ea 339/94, the Decree Holder prayed for directing the Sho Police Station Kotla Mubarak Pur to make available sufficient police aid including lady police for executing the warrants of possession in respect of the premises i.e. shops No. 211, 212, 213 and 214 and the central hall of Super Bazar, Ina Market, New Delhi with a further prayer for orders authorising the bailiff to break open the locks, doors or any other obstruction put therein for execution of warrants of possession. By order dated 6.12.94, after perusing the report of the bailiff and the. circumstances explained, the request for police aid was granted and the bailiff directed to approach the Sho, P.S. Kotla Mubarakpur, for execution of the warrants also with the authority to break open the lock. Thereafter by order dated 27.1.1995 in this Ea, the execution warrants of possession was stayed till the next date.

(9) Order 21 Rule 97 Civil Procedure Code deals with resistance or obstruction to possession of immoveable property. Sub- Rule (1) thereof provides that "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." Rule 99 deals with dispossession by decree-holder or purchaser. Rule 100 deals with order to be passed upon application complaining of dispossession. Order 101 deals with the question to be determined, it provides that "all questions (including questions relating to the right, title or interest in the property) arising between the parties to a proceeding on an application under Order 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 .........".

(10) It will be seen from Rule 97 that whenever the decree holder of a decree for possession of an immoveable property is resisted or obstructed by any person in obtaining the possession of the property, then the decree holder has to make an application to the court, complaining of such resistance or obstruction. It may be recalled that according to the opponent/DH, the bailiff in execution of the decree, handed over possession of the Central Hall to the representatives of the Dh and thereafter the applicants broke open the lock and entered the premises and that they are the tress passers in the premises. It is pertinent to note that it is not the say of the Dh that the applicants are claiming through the JDs. Thus, according to the Dh the possession of Central Hall was handed over in execution of the decree, in other words, there was no resistance/obstruction to the Dh by any person in obtaining the possession of immovable property. In para 7 (EA 34/95), it is stated that officers of the Cooperative Stores Ltd. however, threatened the applicants that they would soon visit the premises again along with full police force and forcibly eject the applicants from the premises in question and even break open the locks, if need be. In para 13 (EA 98/95), it is stated that when the decree holders approached the applicant requiring the applicant to vacate the premises in pursuance to the exparte decree, it was explained by the applicant that the decree did not pertain to her as she was in possession of the premises in question in her own right and that the decree of eviction can not be enforced against her and that she did not derive any title from the JDs. Consequently the applicant approached this court praying for stay of execution of the warrants of possession under Order 41 read with Section 151 CPC. Prayer in Ea 339/94 and the order dated 16.12.94 therein suggest that the applicants, at the time of execution of the decree were in premises and that is why Ea No. 36/94 and the prayer in Ea 339/94 and the order dated 6.12.94.

(11) In the instant case it is the applicants, who have come forward with this Ea stating that the decree passed against the defendants (JDs) in the suit is invalid and not executable against the applicants and that the applicants have acquired an independent right in respect of the premises in question with a prayer to determine the question raised in this Ea under Rule 101, as pointed out above and that the applicants are not liable to be evicted in pursuance of the decree obtained in Suit No. 1411/93.

(12) The remedy as per sub-Rule (1) of Rule 99 of Order 21 Cpc, for the person other than the Judgment Debtor would be only after his dispossession of the immovable property by the decree, holder and the person dispossessed has to apply under sub-Rule (1), complaining of his dispossession of the immovable property and under Sub-rule (2) the court has to adjudicate upon the application made under sub-Rule (1) in accordance with the provisions contained in Rule 100. Thus, the questions relating to right, title or interest in the property, arising between the parties, on an application either under Rule 97 or 99, as the case may be shall be determined by the court and thereafter, the order under Rule 100 upon determination of the question referred to in Rule 101 could be passed. In the instant case, neither the decree holder has applied under Rule 97 complaining of resistance/obstruction to possession of immovable property by the applicants nor the applicants have firstly been dispossessed and secondly applied under sub-Rule (1) of Rule 99 after their dispossession (emphasis supphed) under sub-Rule (1) of Rule 99 complaining of dispossession by the decree holder and therefore, in my opinion, this court can not under Rule 101, determine the questions including the questions relating to right, title or interest in the property, and consequently can not pass any order under Rule 100. f1

(13) Suffice it to say for the present purpose that the right to get determination of the question including the questions relating to right, title or interest would arise only if there is an application as contemplated under sub-Rule (1) of Rule 99 after the dispossession, of a person other than the judgment debtor by the decree holder in execution of the decree for possession of immovable property and the present applicants are admittedly in physical possession of the premises in question and according to the applicants they are not yet dispossessed by the decree holder in execution of the decree the question of determining the right, title or interest in the property of the applicants under Rule 101 does not arise.

(14) Since I am inclined to dispose of these EAs on the ground of same being misconceived and not maintainable, I do not enter into the merit or otherwise of the contentions, raised by the applicants or the opponent-decree holder.

(15) These applications, being misconceived, considering the provisions contained in sub-Rules (1) and (2) of Rule 99 of Order 21 Civil Procedure Code are liable to be dismissed. In the result, the applications fail.