RAM CHANDRA VERMA Vs. MANMAL SINGHI

JUDGEMENT

(1.) If in the course of the execution of a decree for the delivery of any immovable property, a person in possession of the property, who is not a party to the decree, prefers an objection on the allegation that he is not bound by the decree, can the executing Court reject the application on the ground that such an application is not maintainable and continue to proceed with the execution? This is the question involved in this revision which shall succeed if the answer to the question is in the negative, while an affirmative answer would entail its dismissal.

(2.) The answer to this question would depend on a proper construction of the relevant Rules contained in O.XXI of the Civil P.C. relating to the execution of decrees for the delivery of any immovable property. It may be noted that the Code of Civil Procedure, which is followed in Sikkim, is the Code as it stood on the 26th April, 1975 when Sikkim was incorporated in the Union of India as a component State. Rule 35 (1) provides that where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. Rule 97 (1) provides that when the holder of a decree for the possession of any immovable 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, and on such an application being made, the Court is required to investigate the matter under R.97 (2). Rule 98 provides that where the Court is satisfied that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some person at his instigation, it shall direct that the decree-holder be put into possession of the property and if the latter is still resisted or obstructed, the Court may order the judgment-debtor or such person acting at his instigation and causing such resistance or obstruction to be detained in civil prison. Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor and that he claims 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 shall dismiss the application filed by the decree-holder under R.97. Rule 100 provides that if in execution of a decree for the delivery of possession of any immovable property, any person other than the judgment-debtor is dispossessed, such person may make an application to the Court complaining of such dispossession and on such an application being made, the Court is required to investigate the matter under R.100 (2), and R. 101 provides that where the Court is satisfied that such person was in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall direct that such person be put into possession of the property. Ex facie, therefore, these Rules envisage application by a decree-holder only when he is resisted or obstructed in obtaining possession of the property and by any person other than judgment-debtor only when such person is dispossessed of the property. There appears to be no express provision providing for any application to the executing Court by a person other than the judgment-debtor unless he is dispossessed by the decree-holder. The absence of any such provision led the executing Court to reject the application of the revision/petitioner as the executing Court did not find the application to be one under section 47 between the parties and their representatives and did not find any other express provision to enable it to entertain the application of the present nature by a third party.

(3.) The absence of an express provision enabling a party to move the Court cannot invariably indicate the absence of the right to do so. If law grants a right, the right to move the Court to enforce that right must be implied. Otherwise a party is to be regarded to have no right to apply for, say, stay under sec.10 or for revision under Section 115 of the Civil P. C. or, say, for bail or for an order under S.144, Criminal P. C., as there exists no provision in those Codes expressly providing for such application. But this would be against one of the most elementary principles of law and justice enshrined in the maxim "Ubi Jus, Ibi Remedium". As observed by Vivian Bose, J., in the decision of the Supreme Court in Sangram Singh v. Election Tribunal (AIR 1955 SC 425 at 429), "there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them", and that "our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle".