JOHN MITHALAL DESAI Vs. DINESHBHAI K VORA

JUDGEMENT

(1.) Being aggrieved by the order dated 31st December 1996, passed by the learned Judge of the City Civil Court at Ahmedabad, allowing respondent's (judgment-creditor) application (Exh. 53) and issuing possession warrant directing the appellant-third party to hand over the peaceful and vacant possession of two rooms and open chowk land on the ground floor and whole of the first floor of the building called "Vijay Villa" situated to the East of Maninagar Railway Crossing and near the Vandana Park Society, in Ahmedabad (hereinafter referred to as 'the suit premises') owned by deceased Dr. Patrick Motilal Kelly - the judgment-debtor to the Court Commissioner; and rejecting the obstruction application (Exh. 49) preferred by the appellant in Execution Petition No. 495 of 1994, the appellant has preferred this appeal under Rule 103 Order 21 read with S.96 of the Civil Procedure Code. The chequered history may be stated so as to appreciate the rival contentions.

(2.) Dr. Patrick Motilal Kelly was the owner of the building called "Vijay Villa". He, having no issue, was alone after he lost his wife. In 1990, he agreed to sell his building called "Vijay Villa" to the present respondent. An agreement to sell was executed in 1990. The respondent in turn paid Rs. 11,000.00 by way of earnest money. Both had to, under the agreement, perform their respective obligations. The respondent was ready, and willing to perform his part of the contract, but he found that Dr. Kelly was not willing to perform his contractual obligation and was trying to find out a device so as to renege on the terms he had agreed to under the agreement. The respondent, therefore, filed a Civil Suit No. 5325 of 1991 for injunctive relief on 23rd September, 1991 wherein he prayed the Court that Dr. Kelly might permanently be restrained from transferring the building he had agreed to sell. An application Exh. 6 was also preferred in the suit on 10-3-1993 for interim injunction. Initially, the Court was pleased to grant ad-interim injunction ex-parte, but later on hearing the parties the same came to be vacated and the application Exh. 6 came to be rejected. The respondent, therefore, preferred the appeal being Appeal From Order No. 94 of 1993 before this Court. The appeal was placed before Mr. Justice S. D. Shah for hearing and disposal. During the course of the hearing the respondent and Dr. Kelly arrived at amicable settlement. As per the settlement the respondent had to deposit Rs. 9,44,400.00 in the office of the City Civil Court on or before 30th July, 1993 and the consent terms were to be placed before the learned City Civil Court Judge before whom the suit was pending so as to have the decree passed in terms of settlement. On 5th April, 1993 the consent terms were placed before the Court for passing the decree in terms of the compromise. During the pendency of the suit on 1st November 1991 the respondent filed another suit being Civil Suit No. 6302 of 1991 before the City Civil Court at Ahmedabad. It was a suit for specific performance of the contract and necessary injunctive relief. While settling the matter before this Court the dispute between the parties in the later suit was also resolved. As per the consent terms the respondent on 29th July, 1993 deposited Rs. 9,44,400/ - in this Court. Dr. Kelly later on thought, for one or the another reason, not to esteem the consent terms. He, therefore filed Misc. Application No. 4772 of 1993 in A. O. No. 94 of 1993 before this Court submitting that he could not understand the consent terms, his Advocate had not explained the consent terms and impact thereof; and further he was not mentally well and so a guardian to plead his case might be appointed and the A. O. No. 94 of 1993 might be decided on merits. On 13th December 1993 this Court (Coram : Mr. S. D. Shah, J.) rejected the application and directed the lower Court to pass the decree in terms of compromise. Dr. Kelly was not satisfied with the order passed by this Court, and therefore, through his next friend the - appellant who is his brother-in-law, got filed Letters Patent Appeal No. 522 of 1993. The Letters Patent Appeal came to be dismissed on 27th December 1993. Dr. Kelly then filed S.L.P. No. 1034 of 1993 before the Supreme Court of India but he could not succeed, his S.L.P. came to be dismissed on 31st March 1994. Thereafter Dr. Kelly filed Civil Suit No. 1401 of 1994 on 30th March 1994 before the City Civil Court at Ahmedabad with a prayer not to pass the decree in both the suits. The City Civil Court did not agree with Dr. Kelly and hearing the parties it passed the decree in both the suits on 5th May 1994. Thereafter as per the decree Dr. Kelly did not execute the sale deed. The respondent, therefore, filed Execution Petition No. 495 of 1994 on 6th July 1994. On the next day of the date of execution petition, i.e., 7th July 1994 Civil Suit No. 1401 of 1994 was withdrawn, and on the same day Civil Suit No. 3675 of 1994 was filed for staying the execution of the decree. In that suit the lower Court refused to grant interim relief. On 3rd August 1994 Dr. Kelly filed his objections in the execution petition. The Court heard both the parties and maintained its order qua ad-interim injunction application. On 24th August 1994, therefore, Dr. Kelly agreed to execute the sale deed but prayed for 1- 1/2 months time. On 7th September 1994 Dr. Kelly filed the application and requested the Court to pay 50% of the amounts deposited by the respondent with a further prayer to pay remaining 50% of the amount on his executing the sale deed. On 21st September 1994 Dr. Kelly filed the application for producing clearance certificate. A notice was published in local daily called "Sandesh" dated 27th September 1994 for issuance of the clearance certificate in favour of the respondent. The present appellant remained silent. Jagannath Chanderpati Rai, the proprietor of Niti Builders filed the application on 19 the October 1994 in the execution petition objecting against the execution of the decree passed in the above two suits against Dr. Kelly. The respondent filed the application to remove the obstruction on 24th October 1994. Hearing the parties the City Civil Court at Ahmedabad, i.e., Executing Court on 7th December 1994 rejected the application of Niti Buildings. On the same day, i.e., on 7th December 1994 the present appellant who is the brother-in-law of Dr. Kelly filed the suit being H.R.P. Suit No. 1770 of 1994 in the Small Causes Court at Ahmedabad for a declaration that he was the tenant of the suit premises, and permanent injunction restraining the respondent from executing the decree against him and taking possession from him. In that suit he obtained ex-parte ad-interim injunction against Dr. Kelly and the present respondent whereby both are restrained not to take possession of the suit premises. It may be mentioned that the said adinterim injunction issued is still in force. After being served with the notice and ad-interim injunction both Dr. Kelly and the respondent (judgment-debtor & judgment-creditor) appeared before the Small Causes Court. Dr. Kelly filed no reply but the respondent filed his reply. The appellant also obtained the order for the appointment of the Commissioner in that suit. On 24th February 1995 the Commissioner filed his report and map before the Small Causes Court indicating the appellant's occupation of the suit premises without clarifying the appellant's status. However, it may be stated that on 14th December 1994 the City Civil Court, had in the execution petition passed the order to execute the sale deed and hand over vacant possession to the present respondent on or before 28th December 1994 failing which it was made clear that the Commissioner will be appointed for needful to be done in the matter. That order was not esteemed by Dr. Kelly. On 16th January 1995 the Commissioner appointed by the Executing Court visited the suit premises and prepared his report. On 18th January 1995 the Commissioner appointed by the Executing Court filed the application Exh. 39 before that Court against Dr. Kelly and the present appellant for issuance of the warrant for possession so that he could execute the same and take possession. The Executing Court issued the notice. The Commissioner filed his report which came to be exhibited as Exh. 50. Dr. Kelly filed his reply at Exh. 52. On 29th January 1995 the appellant also appeared before the Executing Court and filed his reply at Exh. 49. On 14th February 1995 the respondent also filed his reply at Exh. 53. Thereafter, on 1st March 1995 application Exh. 58 was presented before the Executing Court with a request to treat the reply Exh. 53 as the application to remove the objections under Order 21, Rule 97, Civil Procedure Code. The matter was then posted for further hearing. Meanwhile on 7th June 1995 Dr. Kelly died leaving no issue. Hence, on 15th June 1995 the respondent filed the application to appoint the appellant as the heir and legal representative of Dr. Kelly as there was no one within his knowledge who can be appointed as such. On 20th June 1995 the appellant filed his reply denying the fact of his being the heir of deceased Dr. Kelly. On 22nd June 1995 the respondent filed his reply. On the same day the Executing Court examined the appellant who made it clear that he was having no right in the bungalow and the suit premises, but was the tenant of the suit premises. On the same day, therefore, the Executing Court passed the order (Exh. 62) directing the appellant to hand over peaceful and vacant possession of the suit premises to the Court Commissioner. The appellant then filed his application Exh. 69 seeking time on the ground that he was to prefer required application for necessary action before the High Court. Time upto 29th June 1995 was given so that the appellant could get stay or appropriate order from this Court. On 29th June 1995 Shaishil the son of the appellant filed the application (Exh. 85) declaring that he was the heir and legal representative of Dr. Kelly under the Will and produced one registered Will dated 10-2-1995 alleged to have been executed by Dr. Kelly. It was also made clear to the Court that necessary stay order from High Court was not sought. Thereafter, below application Exh. 85 necessary order was passed by the Executing Court and Shaishil was appointed as heir and legal representative of Dr. Kelly. Having come to know about such developments in the execution petition, few other persons, namely, Shiril Somchand, Rajnikant Shumsum and Smt. Valentine filed the applications at Exhs. 71, 74 and 77 to which the respondent replied vide Exhs. 79, 81 and 83 respectively and gave consent to join all those as parties to the execution petition. The lower Court, i.e., Executing Court granted the same. Thereafter, on the same day Shaishil filed the undertaking (Exh. 90) to take the possession of the bungalow from the appellant. On 7th July 1995 a Purshis (Exh. 93) by Shaishil was filed and the appellant also filed a Purshis (Exh. 94). It was disclosed that possession of the bungalow was given to Shaishil, but the possession of the suit premises was not given. On that day, application Exh. 95 was filed by the present respondent. He urged the Court to amend and add the name of Shaishil in place of Dr. Kelly. The Court granted the same. On 25th July 1995 the Executing Court passed the order directing Shaishil to hand over the possession of the bungalow to the Court Commissioner on or before 31st July 1995. On 31st July 1995 Shaishil filed the application (Exh. 98) for time before the Executing Court making it clear that he wanted to prefer the appeal before the High Court. The Court granted time upto 8th August 1995. Thereafter, C.R.A. No. 1611 of 1995 was filed before this High Court, but no stay order was obtained. On 15th September 1995 the respondent requested the Executing Court to accept the process fees as C.R.A. No. 1611 of 1995 pending before the High Court was withdrawn unconditionally. Accordingly process fees was accepted; as a result the Commissioner and the Bailiff of the Court went to the spot with the possession warrant to take the possession. On 15th November 1995 the Court Commissioner filed the application (Exh. 111) for necessary clarification. The Executing Court then passed the order directing the Commissioner to take the possession of the whole of the bungalow except the suit premises marked as A, B, C, E. On the same day, i.e., on 15th November 1995 the possession of the whole of the bungalow from Shaishil was taken by the Commissioner except the suit premises, and the bungalow was sealed by the Commissioner. On 12th December 1995 the Executing Court, i.e., City Civil Court was moved by an application from the Commissioner to break open the locks of the watchman room and garage on the ground floor which was it seems granted. Thereafter, the applications Exhs. 53 and 49 were heard and the impugned order came to be passed. The application Exh. 49 raising the obstruction against the execution was rejected, while the application Exh. 53 for removal of the obstruction and issuance of possession-warrant was allowed on 31st December 1996. It is against that order, the present appeal under Rule 103, Order 21, Civil Procedure Code has been filed.

(3.) After the decree for specific performance of the contract came to be passed in terms of the compromise arrived at between Dr. Kelly and the respondent, under one or the another pretext Dr. Kelly eschewed to esteem the decree and execute the sale deed. With no option, therefore, the respondent was constrained to prefer the execution petition wherein also Dr. Kelly and the appellant, his brother-in-law resisted or obstructed to the process of possession of immovable property, namely, the suit premises, and therefore, hearing the parties, below the application Exh. 53 which was treated to be the application under Order 21, Rule 97, C.P. Code the order in question came to be passed in favour of the present respondent and against Dr. Kelly as well as the present appellant, consequent upon which the present appeal has been preferred. It may be noted that Civil Procedure Code came to be amended in 1976 and the amended provisions came in force from 1st February 1977. Certain amendments in Rule 97 to Rule 105 (Old) Order 21 C. P. Code are made. A careful study of the old as well as the new rules of Order 21 reveals that the amendment has altered the scheme and new provisions are also added. No change in Rule 97(1) has been made, but Rule 97(2) has been modified to some extent by a new rule. A detailed procedure has been prescribed under new Rules 105 and 106. The old Rule 98 is made Rule 98(2) with some alterations. New Rule 98(1) has been added in lieu of old Rule 99. Old Rule 100(1) has now been incorporated as new Rule 99(1) without any change. Old Rule 100(2) has been modified and incorporated as new Rule 99(2) and a detailed procedure has been prescribed under new Rules 105 and 106. In the place of old Rule 101, new Rule 100 has been added. Old Rule 102 is maintained with the addition of an explanatory clause. The old Rule 103 has been brought into being. Rule 104 has been added. The effect of such changes cannot be overlooked. The changes are not minor but can be said to be drastic. Under the old Code a summary proceeding was contemplated. After the amendment a full-fledged trial is envisaged. Under the old Code if the Court was satisfied with the resistance or obstruction made by any person other than the judgment-debtor claiming to be in possession in good faith the application by the decree holder or the auction purchaser was bound to be dismissed. Similarly, if the Court found that if the person in bona fide possession other than the judgment-debtor had been dispossessed the Court had the power to restore the possession to such person. In that case, the remedy of the aggrieved party was to file a suit in accordance with old Rule 103, but under the amended Code in view of Rule 101 all the questions arising between the parties including the questions relating to right, title and interest in the property are to be decided after full-fledged trial and the ultimate decision of the Court executing the decree is made appealable as if it were a decree, and a separate suit is now barred. However, under Rule 104 the order made under Rule 101 or Rule 103 is subject to the result of the suit already pending on the date of the commencement of the proceeding in which such order is passed. What, therefore, can be deduced is that whenever the application under Rule 97 is made relating to the resistance or obstruction to possession of immovable property, and the question about right, title and interest in the property are required to be decided, that application is given a status of a suit because under Rule 101 all these questions are, after the amendment, to be determined by the Executing Court and not by a separate suit, as special jurisdiction is vested in Executing Court notwithstanding anything to the contrary contained in any other law for the time being in force. A separate suit which was permitted under Rule 103 prior to amendment is now barred, but the decision of the Executing Court in the application under Rule 97 is made subject to the final result of the suit provided of course the suit is pending on the commencement of the proceeding, otherwise not. To this extent, the supremacy qua jurisdiction of other Courts is maintained and is not curtailed by Rule 10, read with Rule 194. The remedy of the aggrieved party after the Executing Court passes the order is to prefer the appeal because under Rule 103 the order that is passed by the Executing Court in the application under Rule 97 is to be treated a decree. In this case, the objections resisting the possession of the suit premises were filed, and therefore, for the removal of the obstruction the application (Exh. 53) was filed by the present respondent (decree holder) under Rule 97. The appellant had raised the question of tenancy and thereby claimed interest in the suit property and also asserted his right to continue in the possession of the suit premises. The question about the tenancy and his right as well as interest in the suit premises are, therefore, adjudicated by the Executing Court vested with the power under Rule 101, Order 21, C.P.C. The order, therefore, came to be passed under Rule 98, consequently in view of Rule 103 the order taking shape of a decree is appealable. When that is the case, the impugned order is appealable. Accordingly when the appeal is preferred, it cannot be said that the same is not at all permissible in law as canvassed before me.