Civil - Delivery of possession - Objection thereof - Order 7 Rule 11 of Code of Civil Procedure ,1908 (CPC) - Trial Court decreed summary suit filed by Appellant under Section 6 of Specific Relief Act, 1963 - When decree was put to execution at time of delivery of possession, Respondent No. 2/ 'Objector' submitted her Petition for objection under Rule 97 of Order 21 of CPC before Executing Court which was rejected by it - However, Appellate Court set aside judgement and order under Appeal remanded case to executing Court for hearing and disposal thereof in accordance with scheme of Rule 97 to 103 of Order 21 of CPC - Hence, this Appeal - Whether objector had independent status - Held, At no point of time in process of progress of suit, Defendant Landlord had ever disclosed that objectors had entered suit plot and that Defendant being illegally dispossessed was not in physical possession of suit property and that present objector Defendant No. 2 was actually in possession - While entire story of objector's having entered, constructed and actually run shop had never been disclosed before Court - Entire story built by Objector was totally articulated - On contrary, according to Judgment Debtor who was his son in possession - Thus, objector's plea was based on falsehood and proved that she was imposter and was set up by Judgment Debtor only - Objector had no independent right, title and interest and no issue at all arose for enquiry - It would, therefore, be unjust and contrary to scheme of law to hold that full-fledged enquiry like in suit would be warranted - Objector's status that she claimed through Judgment Debtor was clear and was seen even without enquiry of any time for purpose of lifting veil - There was no cause of action existing in favour of Plaintiff or that it was barred - Provisions of Rule 11 of Order 7 of CPC were applicable - Objection Petition was ingeniously drafted - Ingenuity thereof being misplaced and exerted at wrong quarter and malicious and for wrong objective did not deserve to be acclaimed and invited blame of ingenuity which was employed to defeat cause of justice - Enquiry as expected to be conducted by District Judge did not have warrant of facts - District Court committed error in approaching to question which was actually involved and got misdirected mostly due to emphatic submissions of phobia of procedure and technicalities of law then real object and spirit thereof - Court set aside impugned order and restored order of trial Court objection to execution by Objector - Appeal allowed.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Decided On: 20.09.2006
Hon'ble Judges/Coram:
A.H. Joshi , J.1
1. This appeal can be finally disposed of without paper book on the basis of record placed before this Court by appellant. Respondent No. 2 who is contesting agrees for final disposal. Therefore, appeal against order is taken up for final disposal. Fresh service on the respondent No. 1 the Judgment Debtor against whom the decree has become final and who was absent before executing Court as well as before this Court is dispensed with as the decree has become final against him, as well he did not contest the execution, or objection proceedings.
2. Regular Civil Suit No. 118 of 1990 a summary suit under section 6 of Specific Relief Act, 1963 of the Court of Civil Judge Junior Division. Hinganghat was filed by the present appellant, claiming that he was forcibly dispossessed by respondent No. 1 the landlord. The suit came to be decreed.
3. Admittedly, the present respondent No. 2 Sanjivani is the wife of Anil Bhola who is the son of original judgment debtor the respondent No. 1. When decree was put to execution in R. D. No. 44 of 2000, at the time of delivery of possession, the respondent No. 2 hereinafter referred for the sake of convenience and brevity as an 'Objector' submitted her petition for objection under Rule 97 of Order 21 before the Executing Court.
4. The objection which runs in four pages and divided into unnumbered 7 paras can be summarized as follows:-
(a) The applicant Sanjivani Anil Bhola is the wife of Anil Bhola was is son of Chandrapal Bhola respondent No. 1, and she has two sons and one daughter from the said wedlock.(b) Though the respondent No. 1 had filed an application before Rent Controller. Hinganghat, for grant of permission to terminate the tenancy of petitioner herein, in which the order was passed in favour of Non-applicant No. 1, yet the respondent No. 1 did not take steps to evict the petitioner herein.(c) Anil Bhola who did not have sufficient means to maintain his family members approached the present respondent No. 1 demanding to give him one block, and the respondent No. 1 agreed to give to Anil Bhola one block for running business, yet did not take any steps to get the block vacated from present petitioner and that due to the indifferent approach of the respondent there used to be her quarrels with respondent No. 1.(d) In 1989, the respondent No. 1 gave the suit block to his eldest son Dharampal who started business therein. The block was in dilapidated condition. Due to heavy rains the suit block fell down and collapsed on 6-9-1992, and Dharampal left the block.(e) The respondent No. 2 has forcibly entered and occupied the place, and started her business on that place. The whole construction thereon was changed by the respondent No. 2 at her own expenses, and description of suit block given in plaint and the structure actually standing on the spot is totally different.(f) The respondent No. 2 learnt that the non-applicant had filed the suit No. 118 of 1990 for getting back the possession of suit block, which is collusive suit and is intended to dispossess the objector.
5. This objection was opposed by the appellant herein stating that:-
(a) The decree holder was successful in litigation after 13 years.(b) The Objector is seen from any angle claiming through the decree holder. She has nexus with the Judgment debtor.(c) She has done all her overt act for alleged forcible and unauthorized entry on account of her being the wife of Anil Bhola who is son of judgment debtor due to alleged rights which Anil Bhola had and therefore, she claimed through the Judgment Debtor.(d) For all purposes, it will have to be held that the Objector is bound by the decree since the source of right of her entry into suit property is the judgment debtor himself, and therefore, her possession is deemed to be "on behalf of the judgment debtor."(e) In fact, the objector has done all her acts at the instigation of or in collusion with decree holder in order to defeat execution of decree by the decree holder.(f) Though the Objector has posed herself as a trespasser, her entry in the property is as a claimant of property through the judgment debtor.(g) Moreover, when she admits to be a trespasser, she has no right, title or interest whatsoever against the present appellant who is the decree holder and has absolute possessory title including against the true owner to get the decree and to execute it.(h) The appellant has, therefore, prayed for dismissal of objection and removal of obstruction, the objection being by and at the behest of the judgment debtor himself.
6. It is seen that the executing Court heard oral submissions of the Objector and the decreeholder and decided the objection by order dated 6-12-2002. The trial Court held as follows :
This objector has not got any independent status, right or title to raise an objection for execution of the decree. It is pertinent to note that this decree is passed against Chandrapal Bhola, who is the father of Anil Bhola and he deposed in the Civil Suit that the said premises is not in his possession. Mr. Anil Bhola is occupying the suit premises and the Court held that the suit site is in possession of Chandrapal Bhola. So the question of possession of this Objector is mere hurdle for execution of this decree. [Quoted from page 69 of Paper Book]
7. The trial Court also dealt with other aspect contained in the objection raised by the respondent No. 2 namely that there was difference in the description of the property which is sought to be put in possession and actual status and description of property. On this point, learned Trial Judge held as follows :
1. It was held in MANU/SC/1098/2002: AIR 2003 SC 643 when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by over-looking of provisions contained in Order 7, Rule 3 and Order 20, Rule 3 of the Civil Procedure Code is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to section 152 or section 47 of the Civil Procedure Code depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under section 152 of the Civil Procedure Code by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of section 47, Civil Procedure Code. A decree of a competent Court should not as far as practicable be allowed to be defeated on account of an accidental slip or omission. [Quoted from 72-73 of Paper Book]
8. Being aggrieved by rejection of objection, the Objector preferred Regular Civil Appeal, which was registered as 194 of 2003, the first appellate Judge found that the procedure of hearing and disposal of objection under Rule 97 to 103 is similar to a suit. The Appellate Court, therefore, found that since the trial Court did not follow the proper procedure, and no factual enquiry whatsoever has been done by the trial Court and provisions relating to consideration of the application of Objector were not followed, the Judgment and order under appeal was liable to be set aside, and was set aside and the case was remanded to the executing Court for hearing and disposal thereof in accordance with the scheme of Rule 97 to 103 of Order 21 of Civil Procedure Code. The entire reasoning of the first Appellate Judge recorded in para No. 15 thereof which is only para consisting of discussions devoted to the scope of enquiry under Rule 101 of Order 21 of Civil Procedure Code.
9. This appeal from order is preferred by the Decree Holder feeling aggrieved by the order of remand.
10. The grounds of appeal pressed into service are :-
(a) The Objector is set up by the Decree Holder.(b) The objector does not have an independent source of life.(c) The Judgment Debtor had deposed in the suit when he appeared as his own witness that Anil Bhola is in possession, while, the trial Court held and found that the defendant himself is in possession.(d) The objector is not a stranger to the proceedings.(e) The objector claiming through the Judgment Debtor.(f) It is necessary to lift veil and find out the truth that in disguise of genuine claim of title to the property, a family member of Judgment Debtor is opposing the execution of decree under the garb of third party objection, and the obstruction deserves to be removed and decree needs to be executed.
11. In reply, it has been argued that the Objector though admittedly, is the wife of Anil Bhola who is the son of Judgment Debtor, she has on her own trespassed in the suit property, and on the basis of possessory title, she is entitled to object.
The Obstructor is entitled to file objection and not to wait till she looses the possession, and executing Court is bound to treat it as a suit and decide it as if a suit, and after full trial. Disposal of objection after oral submission is improper and this amounts to erroneous exercise of jurisdiction. Thereafter, according to Objector, the remand order is perfectly legal and proper and it need not be interfered. The respondent No. 2, therefore, prayed for dismissal of appeal.
12. In this appeal by the decreeholder after considering the rival contentions, the points which fall for consideration of this Court are as follows:-
(a) Is the objector a person in fact, objecting or obstructing the delivery of possession and the execution of the decree is claiming through or the Judgment debtor himself as alleged by Decree Holder?(b) On what has been pleaded in the objection petition, if the right and claim of the objector to the suit property is traceable through the judgment debtor, will it be possible for the executing Court by lifting the veil to discover in reality the status of the objector?(c) what shall be the nature, scope and extent of enquiry for the procedure prescribed for adjudication of objection in the scheme of Rules 97 to 103 of Order 21 of Civil Procedure Code if it is found that Objector is claiming through the Judgment debtor. Is the executing Court bound to advert to and resort to and follow the entire procedure as contemplated in hearing and disposal of suit as in Order 8 to Order 20 of Civil Procedure Code and not otherwise.
13. This Court finds that it is vivid and, therefore, hardly any room of doubt is available in seeing that the source of title or authority of Objector's entry in the suit property done and claimed by the objector present respondent No. 2 is not independent, and in exclusion to the Judgment Debtor. Thus status of objector is not of an outsider or a stranger, who on the facts of the case may have been saying that the Objector is a total stranger and unrelated to the Judgment Debtor and possesses the suit property in his/her own right including such as a possessory title. It is seen that Objector has not shown that she is a person who has primary title in her own right since time which is prior to the suit, the decree wherein is in execution.
14. This Court has already quoted in the para No. 4 above as to what is the nature and source of title of the Objector in her own version as found in the objection petition. Therefore, here is a case where on showing by the Objector, her entry in the suit property is forcible, where she is an articulated manner says that the suit property was vacant and she has entered the suit property, altered the construction and is running the business there. It is thus clear that her source of authority of entry though she claims that she has forcibly entered, it is on showing by her on account of her being the wife of Anil Bhola who is son of the Judgment Debtor, and it is due to Judgment debtor's failure to act and to put Anil Bhola her husband in possession of suit property.
15. It is pertinent to note here that at no point of time in the process of progress of suit, the defendant landlord had ever disclosed that the objectors had entered the suit plot, and that the defendant being illegally dispossessed was not in physical possession of suit property, and that the present objector defendant No. 2 was actually in possession. It is pertinent to note that Regular Civil Suit No. 118 of 1990 was decided on 30-9-2002, while the entire story of objector's having entered, constructed and actually run the shop had never been disclosed before the Court. Entire story built by Objector is totally articulated. On the contrary, according to the Judgment Debtor Anil Bhola who is his son is in possession. This demonstrates that the objector's plea is based on falsehood and proves that she is an imposter and is set up by Judgment debtor only.
16. On showing by the objector, the question that falls for consideration is whether the respondent No. 2 has a status of independent of the judgment debtor, and this question stands governed by the pleadings and record and is answered in negative.
Had the answer of above answered question been in affirmative, enquiry on other issues as to whether and in what right, the objector claims to be in possession would have become necessary. If the need of enquiry is found and enquiry is opened in that eventuality, the objection would take the status of a suit, where all issues on merit of objector's right, title and interest need to be tried and decided with right of first and second appeal.
17. The scope and nature of enquiry shall always depend on the nature of claim of source of title, which an objector pleads. Now on facts, this Court finds on showing by the objector that she has no independent status and enquiry of fact finding as to her status becomes wholly un-necessary.
On her showing, she is an imposter to be an objector in disguise. It can be concluded on the very face of it that the objector is set up by the judgment debtor. Even as an independent trespasser during the pendency of suit, the objector does not have a claim against a rightful claimant who has a decree in his favour. Law, equality or any other known or newly emerged doctrine do not come to the rescue of the objector respondent No. 2 herein.
18. In the present case, it is seen on facts that on showing by the applicant, she has no independent right, title and interest and no issue at all arise for enquiry. It would, therefore, be unjust and contrary to the scheme of law to hold that notwithstanding what is the status of objector a fullfledge enquiry like in a suit would be warranted. A contrary view would amount to permitting abuse of process of law. Objector's status that she claims through Judgment Debtor is clear and is seen even without enquiry of any time for the purpose of lifting veil.
19. Present is a case in which like in Rule 11 of Order 7 of Civil Procedure Code, on reading of plaint suit can be rejected seeing that there is no cause of action exists in favour of plaintiff or that it is barred, the application raising objection is liable to be rejected. No further enquiry whatsoever was needed on what was pleaded in the objection. Thus, present is a case where provisions of Rule 11 of Order 7 would apply and govern the situation.
20. The petition of objection which was framed for and on behalf of the Objector was ingeniously drafted. Ingenuity thereof being misplaced and exerted at wrong quarter, and malicious and for wrong objective does not deserve to be acclaimed, and invites a blame of ingenuity which is employed to defeat the cause of justice.
21. In the result, this Court holds that the enquiry as expected to be conducted by the District Judge does not have a warrant of facts, questions framed by this Court in para No. 12 are answered against respondent No. 2 Objector and in favour of Decree Holder.
22. This Court holds that District Court committed an error in approaching to the question which was actually involved and got misdirected mostly due to emphatic submissions of phobia of procedure and technicalities of law then the real object and spirit thereof. Had the learned Appellate Judge keenly perused the pleadings contained in the objection petition, that itself would have operated as an eye opener as to with high degree of ingenuity the effort was made to defeat the execution of a decree which was legitimately passed. Learned appellate Judge fell prey to the tricky pleadings.
23. In the result, this Court directs :-
(a) The appeal to be and is allowed.(b) The judgment and order of the 1st Appellate Court under challenge is set aside.(c) The Order of the trial Court objection to execution by respondent No. 2 herein, is restored.(d) Obstruction by respondent No. 2 or anyone on her behalf or on behalf or Judgment debtor shall be removed and decree be executed.(e) The respondent/Objector shall bear her own costs and pay full cost of the petitioner.
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