JAGDISH LAL Vs. SURENDER KUMAR

JUDGEMENT

(1.) The brief facts giving rise to this appeal are as under :- Surinder Kumar and other sons of Jai Narain filed a suit for possession of the shop in dispute by way of redemption against Jagdish Lal and Suresh Kumar appellants on Feb. 24, 1979. The main plea taken by the defendants was that they were tenants prior to the mortgage and, therefore, they could not be dispossessed even if the mortgage redeemed. However, the trial Court decreed the suit on Aug. 2, 1980. Immediately thereafter, an execution application was filed on behalf of the decree-holders on Aug. 7,1980. Meanwhile, an appeal against the said decree of the trial Court was filed and therein the orders for staying the execution of the decree was obtained. The said appeal was dismissed on Feb. 11, 1981. Thereafter, the execution application was restored and warrants of possession were issued on Feb. 24, 1981. On Feb. 25, 1981, when warrants were being executed, the judgment-debtors resisted the same and obstructed in obtaining possession of the shop in dispute. As a result thereof, the decree-holder Surinder Kumar filed an application purporting to be one under O.21, R.97, C.P.C. in which it was prayed that orders for police help along with orders of breaking open the lock etc. be given for delivery of possession along with fresh warrants. On Mar. 18, 1981, the judgment-debtors Suresh Kumar and Jagdish Lal filed an application purporting to be reply to the application filed on behalf of the decree-holders under O.21, Rr.97 and 98, C.P.C. It was prayed therein that the notices issued by the Court under O.21, R.97, C.P.C. may kindly be withdrawn and the execution application be dismissed as the same is inexecutable. It was stated therein that after the appeal filed on behalf of the judgment-debtors was dismissed on Feb. 11,1981, Ashok Kumar one of the decree-holders, was requested to increase the rent and allow them to continue in possession. According to them Ashok Kumar agreed to double the rent and to allow them to continue as tenants provided rent for six months was paid in advance. Accordingly, they paid to Ashok Kumar a sum of Rs. 300/- as advance rent from Feb. 15, 1981 to Aug. 14, 1981 for which a receipt was executed by Ashok Kumar in favour of Suresh Kumar. On these facts, it was contended that the objectors are in possession of the disputed property as tenants in their own rights and could not be thrown out in the execution proceedings which has thus become inexecutable. On the pleadings of the parties, the executing Court framed the following issues : -

(2.) Learned counsel for the appellants vehemently contended that the executing Court while allowing the objection petition, will be deemed to have decided the same under S.47 of the Civil P. C. and therefore, no appeal as such was competent against the said order of the executing Court. According to the learned counsel from the nature of the issues framed and the objections filed on behalf of the appellants, it was quite evidence that they are related to the execution, discharge or satisfaction of the decree and therefore, the same were covered by the provisions of S.47 of the Civil P. C. and it has been wrongly held by the lower appellate Court that the objection petition will be deemed to have been filed in the proceedings under O.21, R.97 and decided under O.21, R.103, Civil P. C. The main argument of the learned counsel, is that the objections are fully covered under S.47 and not under O.21, R.97, Civil P. C. In support of his contention, he referred to Dharamadevan v. Kesavan Unniparan, AIR 1971 Ker 221: Santa Singh v. Dial Singh, 1980 Pun LJ 551; State of U. P. v. Mahendra Tripathi AIR 1984 All 59; and Shri 108 Pujay Pad Advait Panch Parmeshwar Panchayati Akhara Bara Udasin Nirman v. Rameshwar Mandal. AIR 1984 Pat 95.

(3.) After hearing the learned counsel for the parties on this point, I do not find any force in this contention. Under S.47 of the Civil P. C., questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree are covered whereas under O.21, R.97 read with R.101 of the Civil P. C., questions including those relating to right, title or interest in the property arising between the parties to the proceeding on an application under R.97 or R.99 of O.21 are to be determined by the executing Court. It could not therefore be successfully argued on behalf of the appellants that the reply-cum-objection petition filed to the application, filed on behalf of the decree holder, dated Mar. 2, 1981 was not covered by the provisions of O.21, R.97, Civil P. C. The language of R.97 of O.21 provides that where the holder of a decree for possession of immoveable property is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. The language used is "obstructed by any person". It may be by the judgment-debtor or by a third person. Sub-rule (2) of the said R.97 further provides that where an application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions thereunder contained. Sub-rule (2) of R.98 of O.21 further provides that where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, he shall direct that the applicant be put into possession of the properly. Rule 101 of O.21 provides as under : -