MADORA BIBI Vs. MOHD MATEEN

JUDGEMENT

(1.) This is the defendant's appeal filed against the decree and judgment dated 15-5-1972 passed by the Addl. District Judge, Kanpur, reversing the decree of the trial Court and decreeing the suit.

(2.) The facts of the case in brief are that defendants-appellants brought execution No. 5/59 against respondent No. 2 for possession of the premises in suit for satisfying her decree in Suit No. 1057/59 (Madaro Bibi v. Abdul Latif) of the Court of 3rd Addl. Munsif, Kanpur. The Amin went for delivery of the possession. The plaintiff-respondent No. 1 resisted the said execution on 21-1-1959. The Court Amin made report to this effect to the executing Court. After expiry of 30 days; defendants-appellant (decree-holder) moved another application before the executing Court for giving possession through the Commissioner. The Commissioner went on the spot for delivery of possession, but this time again, the plaintiff-respondent resisted the said execution. On 7-2-59, report was given to this effect by the Commissioner. Thereafter, on 6-3-1959, the defendant-appellant (decree-holder) initiated proceeding against the plaintiff-respondent under Order 21, Rule 97, C. P. C. It was contested by the plaintiff-respondent on the ground of limitation as having been filed after 30 days from the first resistance, which took place on 21-1-1959, but the objection of plaintiff-respondent was rejected. The order allowing the applicant's application and directing that the applicant (decree-holder) be put in possession of the property in dispute was passed. Thereupon, the plaintiff-respondent instituted a suit under Order 21, Rule 103, C. P. C. to establish the right, which he claimed to the present possession of the property. The suit was filed by the plaintiff-respondent against the defendant-applicant and the respondent No. 2 on the allegation that he is the office Secretary of Anjuman Islamia Musal-meen, Kanpur a registered society. He purchased house No. 99/72-A Manna Purwa, Becon Ganj, Kanpur, through a registered sale deed dated 20-10-1957 from Smt. Khairaul Kisan, widow and sole heir of Abdul Karim, deceased, to whom the said house originally belonged. At the time of the execution of the sale deed, plaintiff-respondent No. 2 was in possession in a portion of the said house, which is in dispute and who vacated the same after a few months of the said sale. It is alleged that the plaintiff is in occupation of the accommodation after the respondent No. 2 vacated it, on behalf of Anjuman Islamia. It was further alleged that the summary order passed by the trial Court dated 23-8-1960 under Order 21, Rule 98, C. P. C. in Misc. Case No. 35 of 1969 was illegal. Plaintiff was no party to the decree, which was sought to be executed against the judgment-debtor by defendant-appellant. The plaintiff resisted the said execution on 21-1-1959 and no suit was filed within 30 days from the date of the resistance. The defendant-appellant again tried to take possession through the Commissioner. It was again resisted by the plaintiff-respondent on 7-2-1959. Therefore, the suit was filed beyond time, but the Court illegally held it to be filed within time from the date of second resistance and passed the order of ejectment of the plaintiff-respondent, which was illegal. The plaintiff-respondent is entitled to remain in possession over the accommodation in dispute and is not liable for ejectment in this proceeding. The defendant-appellant contested the suit filed by the plaintiff-respondent on the allegation that Abdul Karim was her real brother and she purchased benami in the name of Abdul Karim, the plot on which the house in suit was built by her capital. It was also asserted that Karimul Nisan was not the widow of Abdul Karim and had no right to sale the house in-dispute and no valid sale had been executed by her. The trial Court recorded a finding that Anjuman Islamia Musalmeen had purchased the property in suit from rightful owner. But he maintained the order of ejectment dated 23-8-1960 passed under Order 21, Rule 98, C. P. C. It was held by the Munsif that the application under Order 21, Rule 97 initiated by the defendant-appellant was within time from the date of the second resistance. The plaintiff-respondent preferred an appeal against the judgment and decree of the trial Court, which was reversed by the lower Appellate Court. The decree of the lower Appellate Court has been challenged by the defendant-appellant in this appeal.

(3.) It has been contended by the learned counsel for the appellant that in spite of the fact that no proceeding against the plaintiff-respondent was initiated under Order 21, Rule 97, C. P. C. within 30 days from the first resistance, the proceeding which was initiated within 30 days from the second resistance was within time. According to him, Article 167 of Indian Limitation Act (Article 129 of the new Limitation Act) provides limitation of 30 days from the date of resistance or obstructing. There is no mention that the 30 days limitation will run from the first resistance and not from the second resistance. A decree-holder is entitled to get possession so long the decree subsists and in spite of the fact that no proceeding has been initiated within 30 days of the first resistance under Order 21, Rule 97, C. P. C., proceeding could be started within 30 days from the subsequent resistance. In support of his contention, he placed reliance on Narain Das v. Hazari Lal ((1896) ILR 18 All 233) and Maneklal Nathalal v. Ochhavlal Chhaganlal (AIR 1970 Guj 49). It has been contended by the learned counsel for the respondents that the proceeding tinder Order 21, Rule 97, C. P. C. could be initiated within 30 days from the first resistance and not from the second resistance. Reliance was placed upon Kesari Narain v. Abdul Hasan ((1904) ILR 26 All 365) and Mukund Bapu Jadav v. Tanu Sakhu Pawar (AIR 1933 Bom 457 (FB)).