NAND RAM Vs. MAM CHAND

JUDGEMENT

(1.) This petition under Section 115 of the Code of Civil Procedure raises an interesting question of law for the appreciation of which necessary facts may be noticed thus. Decree-holder Mam Chand got a warrant of possession issued for the delivery of possession of the plot in dispute which was returned with the report of the bailiff that he had been obstructed and resisted in the delivery of possession. The decree-holder then filed an application under Order 21 rule 97 of the Code of Civil Procedure on June 1, 1976, which was dismissed as barred by limitation in view of the provisions of Article 129 of the Schedule of Limitation Act. The decree-holder thereafter made another application to secure a fresh warrant for the delivery of possession but the possession could not be delivered because of the obstruction by some of the judgment-debtors on March 17, 1977. This led to the filing of the second application on March 21, 1977, under Order 21, rule 97, for getting the obstruction removed and for putting the decree-holder in possession of the plot in dispute. Again the plea was raised by the judgment-debtors that the application was barred by time and the main ground urged in support thereof was that the limitation would start from the initial obstruction which is deemed to be continuing and that no fresh obstruction was made which could offer fresh period of limitation. Reliance for this proposition was made on Mukand Bapu Jadhav v. Tanu Sakhu Pawar, 1933 AIR(Bom) 457 Full Bench decision. The trial Court, however, relying on the Official Trustee of West Bengal v. Manmothonath Sadhukhan, 1953 AIR(Cal) 499 and P.N. Pathak Sharma v. Smt. Renuka Devi and others, 1959 AIR(Cal) 613 held vide order dated September 21, 1977 that the application was not barred by time. Aggrieved by that order, the judgment-debtors have came up to this Court by way of revision petition.

(2.) The observations made in Mukand Bapu Jadhav's case were noticed in a later Gujarat High Court decision in Maneklal Nathalal Jingar v. Occhavlal Chhaganlal and another, 1970 AIR(Guj) 49 and were not followed. It was held that the observations of the Full Bench were obiter and, therefore, not binding upon them. The Calcutta High Court in the two cases noticed above also took the view that fresh period of limitation starts when the obstruction is made in the execution of the second warrant. The ratio of these judgments is that the provisions of rule 97 Order 21 are only enabling and it is not obligatory on the decree-holder to take proceedings thereunder and that if no proceedings are taken under the said rule or is not debarred from taking out second warrant of possession and if obstruction is made again, may be by the same party who made earlier obstruction, the limitation under Article 129 of the Limitation Act would start from the date of such fresh obstruction. Therefore, the view generally accepted is that the decree-holder is entitled to take out any number of warrants of possession so long as his execution application is not barred by time and each obstruction made in the execution of such warrants provides a fresh cause of action for filing application under Order 21 rule 97. Consequently, I am in respectful agreement with the view taken by the later Gujarat High Court and the Calcutta High Court and following the same hold that the limitation for the present application would start from the date on which the obstruction was made to the execution of the second warrant for the delivery of possession issued under Order 21 rule 35.

(3.) In view of the above discussion, I find no merit in this petition and the same is hereby dismissed. Keeping in view the nature of the question of law involved, I leave the parties to bear their own costs