In my opinion if the door is opened for a regular trial to decide an application under Order 21, Rule 97 of the Code of Civil Procedure as has been submitted to be held by the Andhra Pradesh High Court (supra) and as the opinions of the editors of Mulla's and Sarkar's Code of Civil Procedure indicate, then a broad gate of unending litigations will be opened and the plaintiffs in majority of the cases in spite of their best efforts and in spite of good cases shall not be able to execute any decree during their lifetime. The plaintiff or the Decree Holder shall go on being obstructed by one person after another in obtaining possession of the property and ultimately it will become a fiasco. This will be total denial of justice to the plaintiff. This is most unpractical way of thinking that the amendments of the C.P.C. made in 1976 has changed the nature and character of adjudication of an application under Rule 97. The amended Rule 101 clearly indicates that "all questions including questions relating to right, title or nterest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by separate suit for this purpose, the Court shall, notiwthstanding anything to the contrary contained in any other law for the time being n force, be deemed to have jurisdiction to decide such question." The only difference in the new Rule 101 is that the executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing Court las the force and effect and is subject to the same condition as to appeal as if it was a decree and a suit is not maintainable to challenge the order. Under Rule 101 the Court has jurisdiction to decide all questions including the question of title before allowing the application, but this dpes not mean that the entire procedure de novo of a suit shall have to be followed. In the case of Bhagwat Narayan Dwivedi v. Kasturi a Division Bench of Madhya Pradesh High Court held that in an application under Order 21, Rule 97 of the C.P.C. the enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided, . In my opinion this is the right approach even today.
1. This is a revisional application under S. 115 of the Code of Civil Procedure against order dated 4th July, 1989 passed by the Second Bench, City Civil Court, Calcutta, in Misc. Case No. 912 of 1988 arising out of Execution Case No. 24 of 1987 from Ejectment Suit No. 426 of 1980. The petitioner's case is that the Opposite Party/Decree Holder has obtained a decree for eviction against one Kishore Das, a fictitious person, in the said ejectment suit in respect of the first floor of premises No. 1, Pratap Chatterjee Lane, Calcutta. The petitioner with other members of his family is residing in the said premises since 1947 and when the process server came for the execution of the decree passed in the ejectment suit, the petitioner's father resisted the execution of the decree. The Decree Holder/Opposite Party immediately filed an
application under O.21, R. 97 of the Code of Civil Procedure, the petitioner duly appeared in the Misc. Case and filed objection to the Decree Holder's application. The petitioner filed an application under S. 151 of C.P.C. contending that in view of the 1976 Amendment of the C.P.C, while hearing an application under O.21, R. 97 the Court is under an obligation to determine the right, title and interest of the resistor which in this case is the petitioner. It was further contended in the application that the order which would be passed in the disposal of that application would be a decree and appellable, and the enquiry under this Rule will be treated as it was a trial in the suit and the procedure for trial of suit under the C.P.C. would be the procedure. The petitioner prayed for fixing up a date of discovery of documents and framing of issues prior to taking evidence for final disposal of the Misc. Case. The learned Judge dismissed the petitioner's application by order dated 4th July, 1989 holding that there is hardly any scope for discovery and inspection of documents in a proceeding under O.21, R. 97 read with O.21, R. 101 of C.P.C. Against the aforesaid order the petitioner come to the High Court.
2. Mr. Goswami, the learned Advocate appearing for the petitioner, submitted that under O.21, R. 97 a regular procedure of suit must be adopted and the matter cannot be decided by summary procedure. In this connection he referred to (1978) 2 Andh Pra LJ 294 (335) : (AIR 1979 NOC 114 (AP-)) and (M/s. Southern Steel-made and
Alloys Ltd. v. B. M. Steel, Madras). He could not produce the A.P.L.J. The learned Advocate also referred to the notes of Mulla's and Sarkars' Code of Civil Procedure and submitted that as a decree is not against the father of the petitioner but the judgment Debtor's personality is in dispute as such regular procedure of suit is required to be followed. He submitted that the matter may be referred to the larger Bench for setting the point.
3. Mr. Roy Chowdhury, the learned Advocate appearing for the decree-holder submitted that the only procedure which is to be followed is as in 0. 21, R. 58 of the Code of Civil Procedure. He emphatically submitted that the proceedings applicable in O. 21, R. 97 is not a proceeding as applicable in a suit and it need not be taken recourse of. In his contention the C.P.C. nowhere says that a procedure of suit as laid down in S. 26 of C.P.C. onwards is to be followed, and must be followed. He emphasised that pre-decree position cannot be invoked in this application at all but other opportunities can be given to the petitioner.
4. The Rules 97 to 106 of O.21 of C.P.C. relate to resistence of delivery of possession to decree-holder or purchaser and dispossassion by decree holder or purchaser. On an application made under R. 97 the Court shall proceed to adjudicate in accordance with the provisions contained strictly within the Rules mentioned therein. All questions arising out between the parties to a proceeding on an application under R. 97 shall be determined by the Court not by a separate suit and for this purpose the Court shall be deemed to have jurisdiction to decide all such questions. This has been elucidated in R. 101. Similar procedure is also be adopted when an application is made under R. 99. R. 101 refers to R. 97 or R. 99 for determination of any question that might arise between the parties. The Division Bench of the Andhra Pradesh High Court referring to the provisions of Rule 101 observed that no separate suit is to be filed for determining question relating to the title, right or interest in the property arising between the parties to a proceeding under R. 99 but the Court dealing with the application under R. 99 filed by the party dispossessed by the holder of the decree, has the jurisdiction to decide all such questions, 1978 (2) APLJ 294 (335) : (AIR 1979 NOC 114 AP). From the above observation of the Andhra Pradesh High Court it was submitted by the learned Advocate of the petitioner that the enquiry under R. 101 would be treated as if it is a trial in a suit and the procedure for the trial of the suit under the Code of Civil Procedure would be the procedure under R. 101. This contention was made by the learned Advocate of the petitioner on the basis of the footnote of the AIR Manual, 4th Edition, Vol. I, page 296 and no copy of the APLJ could be produced before the Court. It is difficult to agree with this interpretation of Andhra Pradesh High Court. The Division Bench of Bombay High Court in the case of Ganesh Narayan Kulkarni v. Ganesh Ramchandra Joshi categorically held that so far R. 97(1) is concerned that this Rule makes it clear that in investigating the matter under this R. 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not. If he was not claiming under the judgment-debtor he may be claiming either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court is not concerned to see in what title the obstructionist was claiming. Though this judgment of the Bombay High Court was delivered before the Amendment of the Code of Civil Procedure in 1976, still it holds good so far as R. 97(1) is concerned. The adjudication referred to under O.21, R. 58 relates to adjudication of claims to, or objection to attachment of property. According to the Madras High Court it was the intention of the legislature under the amended C.P.C. that it should be a decision as if rendered in a regular suit resulting in an appellable decree the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the Court could ultimately decide and adjudicate on ail questions including questions relating to title or interest in the property attached, (supra). It must be borne in mind that R. 58 must be read along with Cl. (2) thereof which specifically says that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing within the claim or objection and not by a separate suit. Now it is clear that so far as R. 97 is concerned there is no such clause attached with that Rule. Mr. Justice J. M. Shelet, a former Judge of the Supreme Court of India, who is the editor of the Fourteenth Edition of Mulla's Code of Civil Procedure, comments in respect of O.21, R. 97 to the effect that after the Amendment Act, 1976 which has altered the nature of the proceeding under this rule and of the order passed on an application filed under this rule, the right of suit provided by the earlier R. 103 is no longer available. He further comments that instead, the executing Court has to determine all questions, including questions as to the right, title or interest arising between the parties to the proceeding and the order passed therein has been given the character of a decree He further opines that the right of the party against whom the order is passed is by way of appeal and not by a suit. But nowhere he said that the entire procedure of the suit would have to be gone through as required under the C.P.C. Further, this is the personal comment of Mr. Justice Shelet and is not supported by any mandate of High Court or Supreme Court. Mr. Pravas Sarkar and Mr. Sudipto Sarkar, joint editors of Sarkar's Civil Procedure Code have observed on p. 732 of the Seventh Edition that a proceeding under R. 97 or R. 99 is no longer a summary proceeding as it was before the amendment and the executing Court has been clothed with full jurisdiction to determine all questions including questions relating to right, title and interest in the property between the parties and the order of such a competent Court passed in such a proceeding has been also made an appellable decree. But again this observation of the editors is not supported by any case law and is merely an opinion without judicial authority.
5. In my opinion if the door is opened for a regular trial to decide an application under Order 21, Rule 97 of the Code of Civil Procedure as has been submitted to be held by the Andhra Pradesh High Court (supra) and as the opinions of the editors of Mulla's and Sarkar's Code of Civil Procedure indicate, then a broad gate of unending litigations will be opened and the plaintiffs in majority of the cases in spite of their best efforts and in spite of good cases shall not be able to execute any decree during their lifetime. The plaintiff or the Decree Holder shall go on being obstructed by one person after another in obtaining possession of the property and ultimately it will become a fiasco. This will be total denial of justice to the plaintiff. This is most unpractical way of thinking that the amendments of the C.P.C. made in 1976 has changed the nature and character of adjudication of an application under Rule 97. The amended Rule 101 clearly indicates that "all questions including questions relating to right, title or nterest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by separate suit for this purpose, the Court shall, notiwthstanding anything to the contrary contained in any other law for the time being n force, be deemed to have jurisdiction to decide such question." The only difference in the new Rule 101 is that the executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing Court las the force and effect and is subject to the same condition as to appeal as if it was a decree and a suit is not maintainable to challenge the order. Under Rule 101 the Court has jurisdiction to decide all questions including the question of title before allowing the application, but this dpes not mean that the entire procedure de novo of a suit shall have to be followed. In the case of Bhagwat Narayan Dwivedi v. Kasturi a Division Bench of Madhya Pradesh High Court held that in an application under Order 21, Rule 97 of the C.P.C. the enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided, . In my opinion this is the right approach even today.
6. In the light of the discusssion made hereinbefore I find that the learned Judge of the City Civil Court at Calcutta has accepted in principle that the question of title might be gone into under Order 21, Rule 97 of C.P.C. and the disposal of the application must be expeditiously done on merit within its limited scope. Nowhere the learned Judge has indicated in the impugned order that he was not willing to go into the question of title. He simply said that there was hardly a scope for discovery and inspection of documents under Order 21, Rule 97 read with Order 21, Rule 101 of C.P.C. and rightly rejected the application. I endorse the order in question passed by the learned Judge and confirm it.
7. The revisional application stands dismissed. There will be no order as to costs.
8. The learned Judge is directed to dispose of the application under Order 21, Rule 97 of the Code of Civil Procedure filed in Misc. Case No. 912 of 1988 expeditiously and within 31st January, 1992 positively.
9. Let xerox copy of the order made available to the parties without delay and the Court below is directed to act upon the same.
10. Revision dismissed.
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Calcutta High Court
Dilip Nag vs Smt. Lilabati Garai on 3 December, 1991
Equivalent citations: AIR 1992 Cal 219, (1992) 1 CALLT 432 HC
Bench: K Yusuf
ORDER1. This is a revisional application under S. 115 of the Code of Civil Procedure against order dated 4th July, 1989 passed by the Second Bench, City Civil Court, Calcutta, in Misc. Case No. 912 of 1988 arising out of Execution Case No. 24 of 1987 from Ejectment Suit No. 426 of 1980. The petitioner's case is that the Opposite Party/Decree Holder has obtained a decree for eviction against one Kishore Das, a fictitious person, in the said ejectment suit in respect of the first floor of premises No. 1, Pratap Chatterjee Lane, Calcutta. The petitioner with other members of his family is residing in the said premises since 1947 and when the process server came for the execution of the decree passed in the ejectment suit, the petitioner's father resisted the execution of the decree. The Decree Holder/Opposite Party immediately filed an
application under O.21, R. 97 of the Code of Civil Procedure, the petitioner duly appeared in the Misc. Case and filed objection to the Decree Holder's application. The petitioner filed an application under S. 151 of C.P.C. contending that in view of the 1976 Amendment of the C.P.C, while hearing an application under O.21, R. 97 the Court is under an obligation to determine the right, title and interest of the resistor which in this case is the petitioner. It was further contended in the application that the order which would be passed in the disposal of that application would be a decree and appellable, and the enquiry under this Rule will be treated as it was a trial in the suit and the procedure for trial of suit under the C.P.C. would be the procedure. The petitioner prayed for fixing up a date of discovery of documents and framing of issues prior to taking evidence for final disposal of the Misc. Case. The learned Judge dismissed the petitioner's application by order dated 4th July, 1989 holding that there is hardly any scope for discovery and inspection of documents in a proceeding under O.21, R. 97 read with O.21, R. 101 of C.P.C. Against the aforesaid order the petitioner come to the High Court.
2. Mr. Goswami, the learned Advocate appearing for the petitioner, submitted that under O.21, R. 97 a regular procedure of suit must be adopted and the matter cannot be decided by summary procedure. In this connection he referred to (1978) 2 Andh Pra LJ 294 (335) : (AIR 1979 NOC 114 (AP-)) and (M/s. Southern Steel-made and
Alloys Ltd. v. B. M. Steel, Madras). He could not produce the A.P.L.J. The learned Advocate also referred to the notes of Mulla's and Sarkars' Code of Civil Procedure and submitted that as a decree is not against the father of the petitioner but the judgment Debtor's personality is in dispute as such regular procedure of suit is required to be followed. He submitted that the matter may be referred to the larger Bench for setting the point.
3. Mr. Roy Chowdhury, the learned Advocate appearing for the decree-holder submitted that the only procedure which is to be followed is as in 0. 21, R. 58 of the Code of Civil Procedure. He emphatically submitted that the proceedings applicable in O. 21, R. 97 is not a proceeding as applicable in a suit and it need not be taken recourse of. In his contention the C.P.C. nowhere says that a procedure of suit as laid down in S. 26 of C.P.C. onwards is to be followed, and must be followed. He emphasised that pre-decree position cannot be invoked in this application at all but other opportunities can be given to the petitioner.
4. The Rules 97 to 106 of O.21 of C.P.C. relate to resistence of delivery of possession to decree-holder or purchaser and dispossassion by decree holder or purchaser. On an application made under R. 97 the Court shall proceed to adjudicate in accordance with the provisions contained strictly within the Rules mentioned therein. All questions arising out between the parties to a proceeding on an application under R. 97 shall be determined by the Court not by a separate suit and for this purpose the Court shall be deemed to have jurisdiction to decide all such questions. This has been elucidated in R. 101. Similar procedure is also be adopted when an application is made under R. 99. R. 101 refers to R. 97 or R. 99 for determination of any question that might arise between the parties. The Division Bench of the Andhra Pradesh High Court referring to the provisions of Rule 101 observed that no separate suit is to be filed for determining question relating to the title, right or interest in the property arising between the parties to a proceeding under R. 99 but the Court dealing with the application under R. 99 filed by the party dispossessed by the holder of the decree, has the jurisdiction to decide all such questions, 1978 (2) APLJ 294 (335) : (AIR 1979 NOC 114 AP). From the above observation of the Andhra Pradesh High Court it was submitted by the learned Advocate of the petitioner that the enquiry under R. 101 would be treated as if it is a trial in a suit and the procedure for the trial of the suit under the Code of Civil Procedure would be the procedure under R. 101. This contention was made by the learned Advocate of the petitioner on the basis of the footnote of the AIR Manual, 4th Edition, Vol. I, page 296 and no copy of the APLJ could be produced before the Court. It is difficult to agree with this interpretation of Andhra Pradesh High Court. The Division Bench of Bombay High Court in the case of Ganesh Narayan Kulkarni v. Ganesh Ramchandra Joshi categorically held that so far R. 97(1) is concerned that this Rule makes it clear that in investigating the matter under this R. 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not. If he was not claiming under the judgment-debtor he may be claiming either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court is not concerned to see in what title the obstructionist was claiming. Though this judgment of the Bombay High Court was delivered before the Amendment of the Code of Civil Procedure in 1976, still it holds good so far as R. 97(1) is concerned. The adjudication referred to under O.21, R. 58 relates to adjudication of claims to, or objection to attachment of property. According to the Madras High Court it was the intention of the legislature under the amended C.P.C. that it should be a decision as if rendered in a regular suit resulting in an appellable decree the fuller examination of the rights of parties has to be held after giving them adequate opportunity to place all relevant materials before the Court so that the Court could ultimately decide and adjudicate on ail questions including questions relating to title or interest in the property attached, (supra). It must be borne in mind that R. 58 must be read along with Cl. (2) thereof which specifically says that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing within the claim or objection and not by a separate suit. Now it is clear that so far as R. 97 is concerned there is no such clause attached with that Rule. Mr. Justice J. M. Shelet, a former Judge of the Supreme Court of India, who is the editor of the Fourteenth Edition of Mulla's Code of Civil Procedure, comments in respect of O.21, R. 97 to the effect that after the Amendment Act, 1976 which has altered the nature of the proceeding under this rule and of the order passed on an application filed under this rule, the right of suit provided by the earlier R. 103 is no longer available. He further comments that instead, the executing Court has to determine all questions, including questions as to the right, title or interest arising between the parties to the proceeding and the order passed therein has been given the character of a decree He further opines that the right of the party against whom the order is passed is by way of appeal and not by a suit. But nowhere he said that the entire procedure of the suit would have to be gone through as required under the C.P.C. Further, this is the personal comment of Mr. Justice Shelet and is not supported by any mandate of High Court or Supreme Court. Mr. Pravas Sarkar and Mr. Sudipto Sarkar, joint editors of Sarkar's Civil Procedure Code have observed on p. 732 of the Seventh Edition that a proceeding under R. 97 or R. 99 is no longer a summary proceeding as it was before the amendment and the executing Court has been clothed with full jurisdiction to determine all questions including questions relating to right, title and interest in the property between the parties and the order of such a competent Court passed in such a proceeding has been also made an appellable decree. But again this observation of the editors is not supported by any case law and is merely an opinion without judicial authority.
5. In my opinion if the door is opened for a regular trial to decide an application under Order 21, Rule 97 of the Code of Civil Procedure as has been submitted to be held by the Andhra Pradesh High Court (supra) and as the opinions of the editors of Mulla's and Sarkar's Code of Civil Procedure indicate, then a broad gate of unending litigations will be opened and the plaintiffs in majority of the cases in spite of their best efforts and in spite of good cases shall not be able to execute any decree during their lifetime. The plaintiff or the Decree Holder shall go on being obstructed by one person after another in obtaining possession of the property and ultimately it will become a fiasco. This will be total denial of justice to the plaintiff. This is most unpractical way of thinking that the amendments of the C.P.C. made in 1976 has changed the nature and character of adjudication of an application under Rule 97. The amended Rule 101 clearly indicates that "all questions including questions relating to right, title or nterest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by separate suit for this purpose, the Court shall, notiwthstanding anything to the contrary contained in any other law for the time being n force, be deemed to have jurisdiction to decide such question." The only difference in the new Rule 101 is that the executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing Court las the force and effect and is subject to the same condition as to appeal as if it was a decree and a suit is not maintainable to challenge the order. Under Rule 101 the Court has jurisdiction to decide all questions including the question of title before allowing the application, but this dpes not mean that the entire procedure de novo of a suit shall have to be followed. In the case of Bhagwat Narayan Dwivedi v. Kasturi a Division Bench of Madhya Pradesh High Court held that in an application under Order 21, Rule 97 of the C.P.C. the enquiry must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided, . In my opinion this is the right approach even today.
6. In the light of the discusssion made hereinbefore I find that the learned Judge of the City Civil Court at Calcutta has accepted in principle that the question of title might be gone into under Order 21, Rule 97 of C.P.C. and the disposal of the application must be expeditiously done on merit within its limited scope. Nowhere the learned Judge has indicated in the impugned order that he was not willing to go into the question of title. He simply said that there was hardly a scope for discovery and inspection of documents under Order 21, Rule 97 read with Order 21, Rule 101 of C.P.C. and rightly rejected the application. I endorse the order in question passed by the learned Judge and confirm it.
7. The revisional application stands dismissed. There will be no order as to costs.
8. The learned Judge is directed to dispose of the application under Order 21, Rule 97 of the Code of Civil Procedure filed in Misc. Case No. 912 of 1988 expeditiously and within 31st January, 1992 positively.
9. Let xerox copy of the order made available to the parties without delay and the Court below is directed to act upon the same.
10. Revision dismissed.
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