1994 JTR(SC) 984
1995 AIR(SC) 358 ; 1994 AIR(SCW) 4549 ; 1995 1 BLJR 57 ; 1995 1 CivCC 78 ; 1994 3 CurCC(SC) 282 ; 1994 2 CurLJ 702 ; 1994 56 DLT 543 ; 1994 6 JT 626 ; 1995 RD 144 ; 1995 1 RRR 504 ; 1995 2 RRR 398 ; 1994 4 Scale 597 ; 1995 1 SCC 6 ; 1994 Supp4 SCR 208 ; 1995 2 SLJ 1007 ; 1995 WBLR 52 ; 1995 KHC 729 ; 1994 2 KLT(Online) 1135
SUPREME COURT OF INDIA
K. RAMASWAMY, S.C. AGRAWAL AND N. VENKATACHALA, JJ.
Bhanwar Lal, Appellant
Versus
Satyanarain and another, Respondents.
Civil Appeal No. 3651 of 1990
Decided on 4-10-1994.
Advocates appeared
Mr. U. N. Bachawat, Sr. Advocate, Mr. H. M. Singh, Advocate with him, for Appellant; Mr. R. K. Maheshwari and Mr. Vineet Maheshwari, Advocates, for Respondents.
Act
Referred
:CIVIL PROCEDURE CODE : O.21 R.97, S.11, O.21 R.35(3)
LIMITATION ACT : Art.129
(A) The Civil Procedure Code, Order 21 Rule 35(3) empowers a decree-holder to seek eviction of a person in possession who is bound by the decree, using necessary means including police assistance, while Order 21 Rule 97 provides an independent jurisdiction to adjudicate resistance or obstruction by any person claiming through or independently of the judgment-debtor. The Limitation Act, Article 129, bars dilatory applications, and res judicata prevents re-arguing matters already decided. These provisions were invoked to determine the admissibility of successive applications for removal of obstruction and enforcement of a final decree for possession.
(B) The core legal principles are that a person resisting delivery of possession must derive title from the judgment-debtor or set up an independent right; an application under Order 21 Rule 97 is maintainable against any resister irrespective of decree-binding status; each obstruction gives rise to a fresh cause of action; and the executing court must construe the proper rule to apply rather than mechanically dismissing on limitation or res judicata.
Facts of the case:
The appellant obtained a final decree for ejectment and arrears of rent against Ram Kishan. When the first respondent obstructed delivery of possession, the appellant moved under Order 21 Rule 35(3), followed by applications under Order 21 Rule 97, which were dismissed for limitation and res judicata. An appellate direction for an enquiry was upheld on revision, prompting this special leave appeal.
Findings of Court:
The High Court erred in jurisdiction by treating the initial application as bound by limitation and in law by treating the subsequent application as barred by res judicata. The applications should have been treated as arising under Order 21 Rule 97(1), inviting an enquiry into the legality of the obstruction without precluding the decree-holders right to seek enforcement.
Issues:
Whether the application filed against the first respondent was properly characterized as under Order 21 Rule 97, and whether it was barred by limitation or res judicata.
Ratio Decidendi:
Where a decree for possession exists and obstruction is caused, the remedy under Order 21 Rule 97 is available irrespective of earlier procedural dismissals, and the executing court must apply the correct rule to determine the merits of the obstruction claim.
Result:
The appeal is allowed, the impugned orders are set aside, and the executing court is directed to conduct an enquiry for removal of obstruction and pass appropriate orders.
(A) The Civil Procedure Code, Order 21 Rule 35(3) empowers a decree-holder to seek eviction of a person in possession who is bound by the decree, using necessary means including police assistance, while Order 21 Rule 97 provides an independent jurisdiction to adjudicate resistance or obstruction by any person claiming through or independently of the judgment-debtor. The Limitation Act, Article 129, bars dilatory applications, and res judicata prevents re-arguing matters already decided. These provisions were invoked to determine the admissibility of successive applications for removal of obstruction and enforcement of a final decree for possession.
(B) The core legal principles are that a person resisting delivery of possession must derive title from the judgment-debtor or set up an independent right; an application under Order 21 Rule 97 is maintainable against any resister irrespective of decree-binding status; each obstruction gives rise to a fresh cause of action; and the executing court must construe the proper rule to apply rather than mechanically dismissing on limitation or res judicata.
Facts of the case:
The appellant obtained a final decree for ejectment and arrears of rent against Ram Kishan. When the first respondent obstructed delivery of possession, the appellant moved under Order 21 Rule 35(3), followed by applications under Order 21 Rule 97, which were dismissed for limitation and res judicata. An appellate direction for an enquiry was upheld on revision, prompting this special leave appeal.
Findings of Court:
The High Court erred in jurisdiction by treating the initial application as bound by limitation and in law by treating the subsequent application as barred by res judicata. The applications should have been treated as arising under Order 21 Rule 97(1), inviting an enquiry into the legality of the obstruction without precluding the decree-holders right to seek enforcement.
Issues:
Whether the application filed against the first respondent was properly characterized as under Order 21 Rule 97, and whether it was barred by limitation or res judicata.
Ratio Decidendi:
Where a decree for possession exists and obstruction is caused, the remedy under Order 21 Rule 97 is available irrespective of earlier procedural dismissals, and the executing court must apply the correct rule to determine the merits of the obstruction claim.
Result:
The appeal is allowed, the impugned orders are set aside, and the executing court is directed to conduct an enquiry for removal of obstruction and pass appropriate orders.
H.M.SINGH, R.K.MAHESHWARI, U.N.BACHHAVAT, VINIT MAHESHVARI
JUDGMENT
The appellant had obtained a decree in Second Appeal No. 175/71 from the High Court of Rajasthan on March 21, 1979 of ejectment of Ram Kishan, mesne Profits till date of possession and also arrears of rent. That decree had become final. Thereafter, the appellant filed an execution application under O.21, R. 35(3) of the Code of Civil Procedure, for short the C.P.C. on May 24, 1979, Therefore, when one Satyanarain, the first respondent in this appeal had obstructed delivery of the possession, on the next day, namely, May 25, 1979, he made an application under O.21 R. 35(3) for police assistance to remove the obstruction caused by Satyanarain. The Court directed the appellant to make an application under O.21 R. 97 pursuant to which the appellant made second application on July 18, 1979 under O.21, R. 97, C.P.C. for removal of obstruction caused by Satyanarain. The District Munisf, Executing Court, on January12, 1981, dismissed that application as being barred by limitation under Art. 129 of the Schedule to the Indian Limitation Act, 1963. On the even day, he filed a third application under O.21 R. 97, C.P.C. which was dismissed on February 20, 1982 as being barred by resjudicata. On an appeal filed by the appellant, the Civil Judge, Bikaner, by his Order dated May 19, 1983, directed removal of the obstruction holding that the third application was not precluded to be filed by the appellant. The High Court in Civil Revision No. 352 of 1983 filed by Satyanarain in the impugned order dated February 3, 1987 set aside the order of the appellate court and confirmed that of the Executing Court. On further review, the High Court confirmed its earlier order. Thus, this appeal by special leave against both the orders.
2. The crux of the question is whether the application filed on May 25, 1979 by the Appellant, though purported to be under O.21, R. 35(3) against Satyanarain, is convertible to be one under Order 21, Rule-97 Order 21, R.35(3) provides that:
"35(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decreeholder in possession."
3. A reading of O.21 R.35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. Admittedly, Satyanarain was not a judgment-debtor and that therefore, he is not bound by the decree unless he claims right, title or interest through the judgment-dabtor, Ramkrishan. The person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivative title from the judgment debtor. The court gets power under O.21, R. 97 to remove such obstruction or resistance and direct its officer to put the decree holder in possession of the immovable property after conducting enquiry under Rule 97.
Order -21, Rule 97 provides thus :.
"97, Resistance or obstruction to possession of immovable property... (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree 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.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
4. The procedure has been provided in Rules 98 to 103, we are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under O.21 Rr. 98 to 102. A reading of O.21, R.97, C.P.C. clearly envisages that "any person" even including the judgment-debtor irrespective of whether he claims derivative title from the judgment-debtor or set up his own right, title or interest de hors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under R.35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets right under R. 97 to make an application against third parties to have his obstruction (sic) and an enquiry thereon could be done. Since each occasion of obstruction or resistance furnishes cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.
5. When the appellant had made the application on May 25, 1979 against Satyanarain, in law it must be only the application made under O.21, R.97(1) of C.P.C. The Executing Court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the Executing Court dismissed the second application on limitation and also the third application, on the ground of res judicata which the High Court has in the revisions now upheld. The Procedure is the handmaid of substantive justice but in this case it has run its rooster.
6. In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on resjudicata, Once the application, dated May 25, 1979 was made, the court should have treated it to be one filed under O.21 R.97(1), C.P.C. The question of res judicata for filing the second and third applications does not arise. Under these circumstances the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under O.21, R. 35(3) and 97(2) and O.21, R. 101 and 102 of C.P.C.
The appeal is accordingly allowed. The Order of the High Court and that of the Executing Court are set aside. The executing Court is directed to conduct an enquiry for removal of the obstruction for delivery of possession of the property covered by the decree and pass appropriate orders according to law. The application filed by Lakshminarain is rejected. If he has got any other right independent of the rights in the proceedings under execution, it may be open to him to agitate the same according to law. No costs.
Appeal Allowed.
For Citation : AIR 1995 SC 358