VASUDEV DEVNATH PANDYA Vs. KARSAN KAMSHI BHARWAD

JUDGEMENT

(1.) This litigation has had a checkered career and after passing through various stages it has now come in Second Appeal before this Court. The plaintiff as a result of a protracted litigation obtained a decree for possession against defendant No. 1 in Civil Suit No. 153 of 1946 The plaintiff thereafter filed Darkhast No. 77 of 1959 to recover possession of the suit land from defendant No. 1. A warrant for possession was issued but at the time of the execution of the warrant defendant No. 2 caused obstruction stating that he was in possession of the suit land in his own right and the warrant for possession could not therefore be executed. The plaintiff then made an application to the executing Court to remove the obstruction caused by defendant No. 2. The application it seems was made in the Darkhast proceedings and was not numbered as a separate application under Order 21 Rule 97 of the Code of Civil Procedure. The executing Court took the view that the application was not an application under Order 21 Rule 97 of the Code of Civil Procedure but was an application in the Darkhast proceedings and that such an application could not lie since defendant No. 2 claimed to be in possession of the suit land in his own right. The plaintiff releasing this difficulty requested the executing Court to treat the application as an application under Order 21 Rule 97 of the Code of Civil Procedure but the executing Court declined to do so. The execution Court accordingly rejected the application on the ground that the application was not maintainable. The plaintiff being aggrieved by the order passed by the executing Court rejecting the application filed an appeal against the same but the appeal was summarily dismissed. The plaintiff thereafter filed the present suit in the Court of the Civil Judge Junior Division Dholka for removal of the obstruction caused by defendant No. 2 in the execution of the warrant for possession in Darkhast No. 77 of 1950 and for a permanent injunction to restrain the defendants from causing obstruction to the plaintiff in obtaining possession of the suit land in the execution proceedings. The suit as its very frame suggests was filed under Order 21 Rule 103 of the Code of Civil Procedure. The defendants resisted the suit on various grounds one of the grounds being that the suit as framed was not maintainable. The learned trial Judge however took the view that the suit was maintainable and since in the opinion of the learned trial Judge the other defences raised on behalf of the defendants were untenable the learned trial Judge passed a decree in favour of the plaintiff directing that the obstruction occasioned by defendant No. 2 in the execution to the warrant for possession in Darkhast No. 77 of 1950 be removed and that defendant No. 2 be perpetually restrained from interfering with and causing obstruction to the plaintiff in obtaining possession of the suit land by executing the warrant for possession. Defendant No. 2 being aggrieved by this decree passed against him by the learned trial Judge filed an appeal against the same and the appeal was heard by the Second Extra Assistant Judge Ahmedabad. The learned Assistant Judge came to the conclusion that the order passed by the executing Court rejecting the application of the plaintiff to remove the obstruction caused by defendant No.2 was not an order made under Order 21 Rule 99 of the Code of Civil Procedure and that no suit could therefore be filed by the plaintiff against defendant No.2 under Order 21 Rule 103 of the Code of Civil Procedure. The learned Assistant Judge observed that the application made by the plaintiff was dismissed by the executing Court without any investigation on the ground that it was not an application under Order 21 Rule 97 of the Code of Civil Procedure and that there was therefore no order made by the executing Court under Order 21 Rule 99 of the Code of Civil Procedure which could form the foundation of a suit under Order 21 Rule 103 of the Code of Civil Procedure. The learned Assistant Judge accordingly held that the suit as framed was not maintainable and should have been dismissed by the learned trial Judge. The learned Assistant Judge consequently allowed the appeal and dismissed the suit with costs. The plaintiff thereupon filed the present Second Appeal in this Court.

(2.) Since the appeal was disposed of by the learned Assistant Judge on only one ground namely that the suit as framed was not maintainable the arguments before me also centred round the only question whether the suit was maintainable under Order 21 Rule 103 of the Code of Civil Procedure. It was not disputed before me and it could not be so disputed that the suit as framed was a suit under Order 21 Rule 103 of the Code of Civil Procedure. But the argument was that such a suit was maintainable having regard to the facts and circumstances of the present case. Mr. I. M. Nanavati learned advocate appearing on behalf of plaintiff conceded that a suit under Order 21 Rule 103 of the Code of Civil Procedure could be filed by a party other than the judgment-debtor only when an order was made against such party under Rule 93 Rule 99 or Rule 101 of Order 21 of the Code of Civil Procedure but his contention was that in the present case there was an order against the plaintiff under Order 21 Rule 99 of the Code to Civil Procedure so as to attract the applicability of the provisions of Order 21 Rule 103 of the Code of Civil Procedure. Mr. I. M. Nanavati contended that the application made by the plaintiff before the executing Court was an application for removal of the obstruction caused by defendant No. 2 in the execution at the warrant for possession and since such an application could be made only under order 21 Rule 97 of the Code of Civil Procedure the application was in effect and substance an application under Order 21 Rule 97 of the Code of Civil Procedure and that the order passed by the executing Court rejecting the application must therefore be treated as an order under Order 21 Rule 99 of the Code of Civil Procedure. If an application under Order 21 Rule 97 of the Code of Civil Procedure was rejected by the executing Court without investigation argued Mr. I. M. Nanavati the order rejecting the application could be treated as an order made under Order 21 Rule 99 of the Code of Civil Procedure and that it was not necessary that there should be an investigation before an order could be made under Order 21 Rule 99 of the Code of Civil Procedure. Now it is no doubt true that if the order made by the executing Court on the application of the plaintiff could be treated as an order under Order 21 Rule 99 of the Code of Civil Procedure the present suit filed by the plaintiff against the defendants would certainly by maintainable under Order 21 Rule 103 of the Code of Civil Procedure. But for reason which I shall presently state I am of the opinion that the order passed by the executing Court on the application of the plaintiff could not be said to be an order made under Order 21 Rule 99 of the Code of Civil Procedure so as to afford a foundation for the institution of a suit under Order 21 Rule 103 of the Code of Civil Procedure.

(3.) The fascicules of Rules 97 to 103 of Order 21 of the Code of Civil Procedure occurs under the heading Resistance to Delivery of possession to Decree-holder or purchaser. Rule 97 provides that where the holder of a decree for 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 This was the rule under which the plaintiff should have made the application to the executing Court complaining of obstruction on the part of defendant No. 2 in the execution of the warrant for possession. The same rule provides that when such an application is made to the Court the Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. Rules 98 and 99 then provide for the different orders to be made on the application. Rule 98 prescribes that where 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 it shall direct that the applicant be put into possession of the property. Where on the other hand the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor Rule 99 prescribes that the Court shall in such an event make an order dismissing the application. Rules 100 and 101 are not material for the purpose of the present appeal. They deal with a case where a person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or where such property has been sold in execution of a decree by the purchaser thereof. Rule 102 is also not relevant for the purpose of the present discussion and I need not therefore concern myself with the same. Then comes Rule 103 which is the rule round which the entire controversy between the parties has centred. That rule provides that any party not being a judgment-debtor against whom an order is made under Rule 98 Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any) the order shall be conclusive The scheme of these Rule therefore appears to be that where the holder of a decree for 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 he may make an application to the Court complaining of such resistance or obstruction and on such an application being made the Court would investigate the matter. If after investigation 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 the Court would direct the applicant to be put into possession of the property. If on the other hand as a result of such investigation the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor the Court would make an order dismissing the application. The order made by the executing Court in this summary proceeding whether under Rule 98 or under Rule 99 would be conclusive as between the parties unless of course a suit is instituted by the party against whom the order is made to establish the right which he claims to the present possession of the property in which event the result of the suit would supersede the order made by the executing Court. It is clear from the scheme as also from the provisions of the various rules discussed above that the order made by the executing Court whether under Rule 98 or under Rule 99 is an order made after investigation and neither Rule 98 nor Rule 99 contemplates an order made otherwise than after investigation. Rule 98 speaks of an order to be made by the Court where 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 and likewise Rule 99 speaks of an order to be made by the Court where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor. I do not see how in the face of this clear and specific language used by the Legislature I can be asked to hold that an order made by the executing Court dismissing an application on the ground that it is not an application under Order 21 Rule 98 of the Code of Civil Procedure can be said to be an order under Order 21 Rule 99 of the Code of Civil Procedure.