PANDIT RAMGULAM CHOUBEY Vs. MAHINDRA KUMAR

JUDGEMENT

(1.) THE facts giving rise to this revision are that in Civil Suit no. 6-A of 1965, decided by 2nd civil Judge, Class II, Khurai on 15th December, 1966, the petitioners obtained against Mahendra Kumar, the respondent no. 1 to this petition, a decree for possession of about 27 acres of lands situated in village Rathore of tahsil Khurai. The decree-holders made an application for execution of the decree on 13th April, 1967. A warrant for delivery of possession under Order 21, rule 35 of the Code of Civil Procedure was issued on 8th May, 1967 but was returned unexecuted as the Bailiff, according to his report, was obstructed and resisted by certain persons in executing the warrant. The execution application was eventually dismissed on 4th May, 1968 Thereafter, two more execution applications were filed, which were also dismissed; the last of them was dismissed on 30th November, 1968. The record before me does not give any clear idea as to what happened in these execution applications. It, however, appears that the execution of warrant for delivery of possession was also resisted in the third execution case. The decree-holders then on 22nd April, 1969 filed the fourth execution application, which has given rise to this revision, in which they prayed for issue of warrant for delivery of possession. In a separate application filed on the same date the decree-holders requested for police help in execution of the warrant, on the ground that on previous two occasions the judgment-debtor had collected a number of persons to obstruct the delivery of possession. On 3rd May, 1969 the respondent No. 1 applied under section 151 of the Code, not as judgment-debtor but as Mohatmimkar of Shri Deo Hanumanji Trust, stating that the lands covered by the decree were not in possession of the judgment-debtor but were in possession of the temple and praying that no warrant for delivery of possession should be issued. This application was objected to by the decree-holders and was rejected on 8th May, 1969 on the ground that in view of specific provisions in Order 21, no such application was maintainable under section 151 of the Code On l0th May, 1969 the Court rejected the prayer of the decree-holders for police help on the view that it was not necessary at that stage. On that very date the Court ordered issue of notice of the execution application to the judgment-debtor presumably under Order 21, rule 22 of the Code of Civil Procedure. Then on 20th June, 1969 the respondent No. 1 applied under Order 21, rule 36 on behalf of Shri Deo Hanumanji Temple alleging that the lands covered by the decree were not in possession of the judgment-debtor but they belonged to and were in possession of the Temple and praying that as there was no decree against the Temple, the decree-holders should not be delivered possession of the lands. In reply to this application, which was registered as Miscellaneous Judicial Case No. 26 of 1969, the decree-holders denied the allegations that the judgment-debtor was not in possession of the lands and that the lands belonged to and were in possession of the Temple. The decree-holders also took the plea that such an application on behalf of the Temple was not maintainable at that stage. The Court then framed a preliminary issue whether the application on behalf of the temple was maintainable. This preliminary issue was decided on 8th September, 1969 in favour of the Temple, the Court holding that the application was maintainable for determining the nature of possession to be given to the decree-holders. It is against this order that the decree-holders have come up in revision. The temple has been impleaded as respondent No. 2 in the revision.

(2.) IT is contended by the learned counsel for the petitioners that a third party who claims to have independent title and possession which is not accepted by the decree-holders cannot object in execution-proceedings until he is dispossessed and for this reason the Court below acted in excess of its jurisdiction in entertaining the application made on behalf of the Temple. In answer, it is argued by the learned counsel for the respondents that the rules 35 and 36 of order 21 of the Code of Civil Procedure contemplate an inquiry before issue of warrant for delivery of possession and a third party objector can apply under these rules alleging his independent title and possession and contending that he is a person not bound by the decree notwithstanding the fact that this title and possession are not admitted by the decree-holder.

(3.) TO appreciate the rival contentions, it is necessary to consider the relevant provisions of the Code in Order 21. A person who has obtained a decree for possession and who has not been put into possession by the judgment-debtor outside the Court in obedience to the decree has to decide what type of assistance he wants from the Court consistent with the decree for obtaining possession. Under rules 35 and 36 the Court's assistance is available by issue of a warrant for delivery of actual possession, joint possession or symbolical possession. Form of warrant for delivery of possession finds place in Form no. 11 of Appendix E. It is noteworthy that this warrant in general terms directs the bailiff to put the decree-holder in possession of the property and to remove any person bound by the decree who may refuse to vacate the same. The language of the form, which is in line with first clause of rule 35, indicates that the warrant issued under this provision is not issued to remove any particular individual from possession, but is issued in general terms to remove any person bound by the decree. It follows that the words-"if necessary by removing any person bound by the decree who refuses to vacate the property-" which find place in clause 1 of rule 35 do not contemplate any inquiry for finding out as to who is the particular person in possession or whether he is bound by the decree or refusing to vacate the property. The provision for issue of a warrant in general terms negatives any occasion for any such inquiry. The third clause of rule 35, which also deals with delivery of actual possession, enables the Court to direct the removal or opening of any lock or bolt or breaking open of any door or doing of any act of similar nature for putting the decree holder in possession of any building or enclosure when the person in possession being bound by the decree does not afford free access. The words-"where the person in possession being bound by the decree does not afford free access"-as used in this clause like the words-"by removing any person bound by the decree who refuses to vacate the property"-as used in the first clause do not require any inquiry to be made to find out as to who is the particular person in possession or whether he is bound by the decree or affording free access. The third clause interpreted along with the first clause only contemplates of a general direction to be inserted in the warrant authorising the bailiff to do the acts mentioned in that clause for putting the decree-holder in possession of any building or enclosure where the person in possession being bound by the decree does not afford free access. The second clause of rule 35 deals with the mode of delivery of possession when the decree Being executed is one for joint possession. It only requires that a copy or warrant be affixed in some conspicuous place on the property and that the substance of the decree be proclaimed by beat of drum or other customary mode at some convenient place There is hardly anything in this clause which may furnish the basis for any inquiry. Rule 36 deals with the delivery of constructive possession where the property to which the decree relates is in "the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy " The delivery of possession under this rule is to be effected by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree. The warrant contemplated by this clause is also of general nature authorising the bailiff to proclaim to "the occupant" whosoever he may be the substance of the decree. As already stated, a person who is armed with a decree for delivery of possession in his favour has to decide for himself whether he wants the Court to issue a warrant for delivery of actual possession, joint possession or constructive possession and he is to make a request to that effect in his application for execution. If the request made by the decree-holder is inconsistent with the decree, the Court will refuse the request and issue only such warrant which is consistent with the decree or may dismiss the application. For example, if a decree is plainly one for joint possession or symbolical possession, an application which seeks the issuance of a warrant for delivery of actual possession will not be granted. But when the decree to be executed is one for actual possession and the decree-holder chooses to apply for issuance of a warrant for delivery of actual possession, the Court is not required to hold an inquiry whether the person in occupation is one bound by the decree and the duty of the Court is to issue a warrant under rule 35. A third party, meaning thereby a person who is not the judgment-debtor or a representative in interest of the judgment-debtor, has no locus standi at that stage to apply that the application of the decree-holder for actual delivery of possession should be dismissed or that he be granted only constructive possession. An application of the judgment-debtor or his representative in interest stating that the decree for any reason is not executable or is executable in a particular mode will stand on a different footing as it will fall under section 47 of the Code of Civil Procedure and will be decided under that provision. But a third party cannot intervene at that stage and force an inquiry into his title or possession on an unwilling decree-holder for the simple reason that his case does not fall under section 47 and no inquiry into his title or possession is contemplated under rules 35 and 36 at any rate at his instance. Similar is the position when an auction-purchaser seeks the assistance of the Court for being put into possession under rules 95 and 96. These rules are worded in like manner as rules 35 and 36 and a third party cannot intervene to have his title or possession investigated under them.