MODI BAI CHUNNILAL Vs. NAGRAJ HARAKCHAND JAIN

JUDGEMENT

(1.) ONE Modi Bai obtained a decree for possession in respect of khasra No. 200/2 of village Gahiranawagaon, tahsil Balod, district Durg, against certain persons in Civil Suit No. 16-A of 1970 of the Court of Civil judge, Class II, Balod. She put this decree into execution. One Janki Bai also figured as a defendant in that suit. The decree was also passed against her. Non-applicant, Nagraj obtained a sale-deed, dated 28-5-1968, from this janki Bai prior to the institution of that suit. Non-applicant, Nagraj claimed that in the process of execution of that decree he was wrongfully dispossessed of Khasra No. 200 j2. He, therefore, filed an objection on 9-11-1973 before the executing Court, complaining of this wrongful dispossession. This objection was filed under Order 21, Rule 100, Code of Civil Procedure, as it stood prior to the amendment of the Code by Amending Act No. 104 of 1976, which came into force on 1st of February, 1977. After due investigation, the executing Court decided this objection by its order, dated 7-9-1978 and held that the non-applicant, Nagraj was in possession of the property on his own account and allowing the objection, directed that the non-applicant be put in possession of the property. The decree-holder, Modi Bai appealed. The lower appellate Court held that the decree-holder obtained possession of the property from the non-applicant, Nagraj, in execution of the decree. It was held that the non-applicant was then in possession of the land in his own right on the basis of the sale-deed from Janki Bai and, therefore, was wrongly dispossessed in execution of the decree in that suit. The lower appellate Court, thus, upheld the finding of the executing Court in this behalf. It appears that before the lower appeal Court, it was urged that while the objection by non-applicant was pending adjudication before the executing Court, the Civil procedure Code was amended by the Amendment Act No. 104 of 1976 and drastic changes were made in Order 21 of the Code. It was urged that the right of suit consequent upon an order passed on an objection complaining of wrongful dispossession in execution of a decree was taken away by the amending Act and that the executing Court should have investigated into the title of the parties relating to the land in question. As that was not done, it appears to have been urged before the lower appellate Court, the matter be remanded for due investigation. It appears that the lower appellate Court instead of remanding the matter has attempted to decide the title of the respective parties on the basis of the available records, and has held that the non-applicant has acquired good title to the land which remained unaffected despite the decree in Civil Suit No. 16-A of 1970. The contention that no appeal lay before him and that the remedy was only a suit under the provisions of the Code as they stood prior to the amending Act No. 104 of 1976, was repelled by the lower appellate Court. The appeal was held tenable. For all these reasons, the lower appellate Court dismissed the appeal.

(2.) SHRI D. M. Dharmadhikari, learned counsel for the applicant (decree-holder), urged that the matter would be governed by Order 21 as it stands amended by the Amending Act 104 of 1976 and, therefore, in terms of rule 101 of Order 21, it was imperative for the executing Court to enquire and decide as to the title of the decree-holder vis-a-vis the non-applicant before it passed any order upon the objection filed by the non-applicant. He, therefore, prayed for remand of the matter. As against this, Shri Ravish agarwal, learned counsel for the non-applicant, urged that the matter shall be governed by the Code of Civil Procedure as it stood prior to the amendment for the reason that the objection was filed before the amendment came into force on 1-2-1977. He, therefore, submitted that even the appeal before the lower appellate Court was not competent.

(3.) THE scheme relating to adjudication of claims or objections to attachment of property and resistence or obstruction to possession of immoveable property during the course of execution has been drastically amended by the Civil Procedure Code (Amendment) Act 104 of 1976. Before this amendment, the enquiry relating to claim or objection to attachment was within a very narrow compass and the party aggrieved by an, order of the executing Court upon any such claim or objection had a right to file a Civil suit under Rule 63 of Order 21, Civil Procedure Code to get his title adjudicated. The Order was subject to such a result of that suit. Similarly, a party who complained of dispossession from any immoveable property in the course of execution of any decree, could -institute a suit to establish the right which he claimed to the present possession of property and order of dispossession was subject to the result of such suit, if any. Section 72 of the amending Act 104 of 1976 incorporates the changes made by that Act in order 21 of the Code of Civil Procedure. By clause XXXIV of section 72 of the Amending Act, new Rules 99, 100 and 101 have been inserted in place of rules 100, 101, 102 and 103 of the Code, as it stood prior to this amendment. The new Rule 101 of Order 21 is as under:-