DATTATRAY Vs. MANGAL

JUDGEMENT

(1.) The learned single Judges before whom this miscellaneous appeal came for hearing has referred the following question to the Division Bench:- "If an order is passed by an executing court after 1-2-1977 disposing of an application under Order 21, Rule 97, C.P.C. which was pending on that date, whether the order passed by the executing Court is appealable under the provisions of the amended Code of Civil Procedure or the aggrieved party has to file a suit under the provisions of the Code as it stood prior to its amendment?"

(2.) The material facts are that a decree for eviction was passed on 10th Jan. 1971 in favour of the appellant. In execution of that decree there was resistance by respondent No. 1, Mangal. The appellant decree-holder filed an application on 6th March 1975 under Order 21, Rule 97, Code of Civil Procedure, complaining of resistance by respondent No. 1. This application was allowed by the executing Court On 28th April 1977 holding that respondent No. 1 was not entitled to resist delivery of possession in execution of the decree. Respondent No. 1 preferred an appeal against this order which was allowed by the First Additional District Judge, Ujjain, by his order dated 13th Sept. 1978 and the application of the appellant under Order 21, Rule 97 was dismissed as barred by limitation. The appellant decree-holder then filed the present appeal in the High Court. One of the contentions raised on behalf of the appellant before the High Court is that respondent No. 1 was not entitled to file an appeal against the order dater 28th April 1977 passed by the executing Court and that he should have filed a suit under Order 21, Rule 103 of the Code as it stood prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), It is this contention which has led to the reference made by the learned single Judge.

(3.) The scheme of the Code as it stood before its amendment was that an application made under Rule 97 of Order 21 by the decree-holder was disposed of in accordance with Rule 98 and Rule 99. If the resistance or obstruction was occasioned without any just cause, the executing Court would allow the application of the decree-holder under Rule 98 whereas if 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 was enjoined to dismiss the application under Rule 99. Similarly, if a person other than the judgment-debtor was dispossessed in execution he could apply under Rule 100. If the executing Court found that the applicant was in possession on his own account or on account of some person other than the judgment-debtor, the executing Court was to allow the application and to put the applicant in possession under Rule 101. Rule 103 which made the orders passed under Rules 98, 99 and 101 conclusive subject to a regular suit provided as follows:- "Rule 103. Orders conclusive subject to regular suit. 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,"