These provisions are considered by the Hon'ble Apex Court by time and again. In Prasantha Banerji v . Pushpa Ashoke Chandani and Ors., 2002 (9) SCC 554, the Hon'ble Apex Court has held that a person not party to a decree cannot file separate suit to avoid its execution. He has to raise objection in the execution. In Noorduddin v. Dr.K.L.Anand, 1995 (1) SCC 242, particularly, in paragraph-9, the Hon'ble Apex Court has held that procedure under order 20 rules 98, 100 and 101 is sine qua non for finality of the execution. The judgment reported in Anwarbi v. Pramod D.A.Joshi, 2000 (10) SCC 405 shows that a person in possession should not be dispossessed till his objection is decided. 2004 (11) SCC 511- P Janardhan Rao vs. Kannan & Others, following .
Noorduddin v. Dr.K.L.Anand,supra, the Hon'ble Apex Court has found the provisions of Order XXI rule 97 rightly applied upon an application by a decree holder to remove obstruction to facilitate further execution. There proceedings have been decided after recording of evidence. The judgment reported in Bhanwar Lal v. Satyanarain & Anr, 1995 (1) SCC 6 also shows same law.
Bombay High Court
Smt Malti Vijaysingh Kapadia vs And At Present At: on 6 November, 2012
Bench: B. P. Dharmadhikari
Citation; 2014 (1) ALLMR 803 Bom
These Three appeals from order under order 43 rule 1(R) of Code of Civil Procedure, 1908 (C.P.C.) challenge common order/judgment dated 7th February 2005 passed by the City Civil Court, Greater Bombay on three different notices of motion.
2. By the impugned order the said Court has found it not proper or desirable to set aside order passed by it earlier appointing Court Receiver and asking him to take possession from anybody found in possession. The appellant-Malti in Notice of Motion No.3494 of 2003 is appellant in Appeal from Order No.270/2005. Appellant-Hemant in Appeal from Order No.272/2005 is the applicant in Notice of Motion No.3493/2003 while Vijay Singh, the appellant in Appeal from Order No.273/2005 is the applicant in Notice of Motion No.3495/2003.
3. Parties before this Court are closely related and, very briefly stated, two of them filed civil proceedings in which a decree has been passed by their consent. An order appointing Court Receiver to take 6/22 270.05-ao--
possession from whosoever is found in possession came to be passed. The appellants before this Court are other family members not impleaded therein & who obstructed Court Receiver. In short, in Notice of motion, they sought to demonstrate their possession and also collusion between the parties to suit in which consent decree came to be passed.
4. One Gordhandas left behind him three sons Vijay Singh- appellant in Appeal from Order No.273/2005, Rajinder Singh who expired on 25th November 2005 and Pratap Singh - third son. S.C.Suit No.6954/2002 was filed by Pratap Singh against the legal heirs of his brother Ranjeet Singh claiming that Pratap and Ranjeet were partners in business. The Suit was for dissolution of firm by name "NETCO" for accounts etc. A declaration sought in it was that the plaintiff and defendants were carrying partnership business in the name and style "M/s NETCO" from the said tenanted premises bearing Shop Nos.1 and 37 and Godown No.4 situated at ground floor of Building No.127/129,131/133 known as Dhanjee Mooljee Building, at Old Hanuman Lane, Kalbadevi Road, Mumbai. The said suit was filed on 24 th December 2002 and it was decreed on 22nd August 2003.
5. Proceedings recorded on 22nd August 2003 show that in the said suit for dissolution of partnership and for accounts, the plaintiff- Pratap had taken out a notice of motion for appointment of Court receiver attached to this Court as Receiver for partnership properties. The defendants to the suit i.e. heirs of Ranjeet Singh in their affidavit in reply also sought such an appointment. On 30th December 2002 by ad-interim 7/22 270.05-ao--
order the Receiver came to be appointed and because of stand of the defendants, appointment was confirmed. It is on this day that the trial Court ordered the Receiver to take possession of the properties from whosoever found in possession. Shop No.1, shop No.37 and godown No.4 are those properties.
6. The Receiver along with Court Bailiff went to the suit premises on three occasions in January 2003 and his reports are already on record. The present appellants thereafter took out a chamber summonses for impleading them as as party defendants to the suit. The appellant thereafter filed above mentioned three motions and withdrew those Chamber summonses. The appellant-Malti in her Notice of motion No.3494 of 2003 sought relief of setting aside order dated 22 nd August 2003 confirming the appointment of Receiver and taking possession of godown in Dhanjeei Mooljee Building and also sought stay of that order till her prayers were considered. In the supporting affidavit it was pointed out that godown No.4 does not belong to partnership firm nor the said firm was in possession or occupation thereof.
7. The appellant-Hemant in his Notice of Motion No.3493 of 2003 sought similar relief in relation to suit properties. In the supporting affidavit he contended that shop No.1 does not belong to partnership firm nor partnership firm was in possession thereof.
8. Vijay Singh, appellant in Appeal from Order No.273 of 2005, had taken out Notice of Motion No.3495 of 2003 contending that Shop 8/22 270.05-ao--
No.37 was in his possession with similar assertions. He sought some reliefs. Thus, the three family members of parties to S.C.Suit No.6954 of 2002 sought setting aside of directions in order dated 22 nd August 2003 asking the Court Receiver to take possession of all these three premises and also sought its stay.
9. These three motions were considered by the trial Court on 11th August 2004 and the trial Court allowed those motions. It discharged the Court Receiver, restrained plaintiff-Pratap Singh from disturbing possession of present appellants and also observed that earlier action of taking symbolic possession by Court Receiver would not survive. This order dated 11th August 2004 was questioned in three different appeals from order by plaintiff-Pratap. These three Appeals from order were considered by this Court on 5th November 2004 and this Court at that time observed that though, prima facie, considering the material on record the findings arrived at did not appear to be contrary, it was necessary for the trial court to deal with rival contentions in relation to the material on record in detail and arrive at appropriate finding before disposing of the applications. As the rival contentions and material on record were not appropriately dealt with, with consent of parties, the impugned orders were set aside. But then this Court at that time observed that till fresh disposal of notices of motion effect of impugned orders shall not stand wiped off and shall remain in force.
10. After this order the trial Court has again applied its mind and passed impugned order dated 7th February 2005 which has been assailed 9/22 270.05-ao--
in these three appeals by the appellants/objectors.
11. In these appeals, this Court has continued interim position which was protected by it on 5th November 2004.
12. In this background, I have heard Advocate Mr.Rajesh Patil for the appellant in Appeal from Order Nos.270 and 272 of 2005, Advocate Ms.Bhambwani for Appellant in Appeal from Order No.273 of 2005 and Advocate Ms Nichani for the original plaintiff-Pratap.
13. Learned counsel for the appellants have invited attention to the plaint assertions by Pratap in S.C.Suit no.6954 of 2002 and also to relevant order sheets recorded in that suit in an attempt to show that suit was filed in collusion and with sole purpose of securing possession of suit premises through the Court Receiver. They have invited attention to partnership deed between Pratap and Ranjeet Singh to submit that after death of Ranjeet Singh in November 1995 there was no question of any firm as such doing any business. The impugned order is sought to be assailed by pointing out that the trial Court has failed to note that documents produced by plaintiff-Pratap did not relate to suit premises and did not establish that the firm M/s.NETCO was doing business therefrom. It is further submitted that, admittedly, appellant Vijay Singh is the landlord of three premises and he has admitted Malti and Hemant as tenants. Submission is that material on record, therefore, sufficiently established possession of the appellants and absence of possession of firm. In this situation, the plaintiff in S.C. Suit No.6954/2002 ought to have 10/22 270.05-ao--
filed suit against the landlord Vijay Singh and obtained declaration about his status as a tenant.
14. The Bailiff's report dated 6th January 2003 and facts noted therein are pressed into service to show that son of Ranjeet Singh had taken keys from the appellants on 3rd January 2003. The second report of the Bailiff dated 13th January 2003 or last report dated 17th January 2003 is also read out to show that those reports did not reveal possession of Pratap or firm NETO over the suit premises.
15. Similar effort is made by pointing out the documents produced by plaintiff- Pratap Singh before trial Court to show his possession. It is submitted that those documents also do not establish such possession. Various contentions have been raised in relation to those documents. However, I do not find it necessary to refer to those contentions at this stage.
16. Lastly, it was urged that trial Court did not record any evidence on conflicting documents and when there were two persons claiming against each other as tenants, the trial Court ought to have relegated them to the court of competent jurisdiction namely rent Court. Till such dispute is resolved satisfactorily, direction to the the Court Receiver to take possession needed to be set aside or recalled. It is further contended that the decree obtained on 22 nd August 2003 is collusive in nature and the fact that it has been so obtained by fraud is valid defence and the trial Court ought to have appreciated the same properly. It is 11/22 270.05-ao--
pointed out that these three premises are located in two buildings and hence claim made or documents produced needed individual or separate consideration.
17. Learned counsel for the plaintiff has submitted that provisions of order 40 Rule 2(2) of C.P.C. were relied upon before the trial Court to support the prayer made in the notices of motion. Said provisions had no relevance in the present facts. The suit was between the persons doing business as partners and that position was not in dispute before the trial Court till 22nd August 2003. The trial Court, therefore, correctly applied its mind and passed a preliminary decree and had appointed Court Receiver to take possession of partnership properties. It is submitted that objection on the ground of clauses in partnership deed between Pratap and his deceased brother is not relevant in this background. On the same lines, it is further contention of learned counsel that all the appellants lacked locus to interfere in the matter and notices of motion taken out by them were rightly dismissed. Attention is also invited to the fact that earlier these appellants had taken out chamber summonses seeking their impleadment as parties but then the said chamber summonses were allowed to be dismissed in default deliberately. The right of the landlord or his title is not relevant and it is the question of possession of the firm/Pratap which has been rightly gone into by the trial Court.
18. Bailiff's statement dated 13 th January 2003 is relied upon to show how the present appellants have attempted to justify their 12/22 270.05-ao--
occupation or possession of three suit premises. Learned counsel submits that all the three business premises were declared to be in use for managing the properties. The rent receipts issued by the landlord in favour of the plaintiff were sought to be explained away by urging it to be a mistake. The payment of electricity bills by firm M/s NETCO, Shop and Establishment Licence etc. are all pressed into service to urge that those documents have been rightly relied upon by the trial Court to reject the three notices of motions. It is submitted that income tax records produced were quite old and therefore contained the old address of the firm. Strong reliance is being placed on admission of the landlord/ appellant in the Cooperative Court to explain the possession of the firm M/s NETCO.
19. Order sheets are also pointed out with the contention that Advocate Paradkar who appeared for the appellants in Appeal from Order Nos.270 and 272 of 2005, in fact, had given a no objection to the Receiver to take possession on 10th January 2003. There was change of advocate on 16th January 2003 and thereafter the landlord Vijay Singh claimed to be in possession of Shop No.37. The order sheet permitting symbolic possession, in this situation, is also therefore read out. The facts according to the learned counsel show that there was no fraud at any point of time.
20. In so far as claim of the appellants is concerned, the appellants produced recent documents i.e of the year 2002-2003 in the said attempt. It is further contended that the three premises are all inter- connected and are situated in two adjacent buildings and godown and are 13/22 270.05-ao--
being used as only one structure. The fact that Dipak, son of Ranjeet produced the keys of said premises before the bailiff is therefore said to be decisive.
21. In this situation, the impugned order is read out to urge that the said order considers all documents and after referring to rival contentions a possible view has been reached. Therefore there is no jurisdictional error or perversity. The appointment of Court Receiver and direction to him to take possession therefore, is thus sought to be justified.
22. Learned counsel, however, has stated that the plaintiff who filed suit in 2002 is out of possession and the present appellants have attempted to mislead the Court Receiver in execution by pointing out a small wooden cabin in shop No.1 as Shop No.37. This was done by them in order to get over the statement made by Advocate Paradkar. Submission is that in equity jurisdiction, therefore, at their instance such a challenge should not be entertained.
23. In reply arguments, respective counsel for the appellants have invited attention to the order of trial Court passed on 11 th August 2004 in earlier round of litigation. The order of this Court dated 5 th November 2004 and then orders dated 22 nd February 2005 and 15th March 2005 passed in present appeals show that appointment of Receiver set aside or recalled by the trial Court on 11th August 2004 never revived thereafter. It is contended that all three premises are in possession of the appellants and cannot be restored to the possession of Receiver. It is further contended 14/22 270.05-ao--
that Advocate Paradkar was not authorized to appear for landlord Vijay Singh and had no authority to make statement as recorded in order sheet by the trial Court on 10 th January 2003. They contended that on all three occasions the Court Receiver found the appellants in possession. M/s.NETCO has produced only counter-foils of rent receipts and not the rent receipts. There is no document to show payment of bills through the accounts of M/s. NETCO.
24. Respective Counsel have during arguments also invited attention to the provisions of section 36 of C.P.C. read with Order XXI rule 97 of C.P.C. and rule 98 and rule 103.
25. The fact, that the Receiver has been appointed and he was authorized to take possession from whosoever is found in possession, is not in dispute. The attempt to take possession by Court Receiver along with bailiff on three different dates and its outcome is a matter of record. The said appointment is by order dated 13 th December 2002 and Receiver was appointed under order 40 rule 1 of C.P.C. with regard to business, stock in trade, furniture, fixture, assets and tenanted premises of the partnership firm viz. M/s.NETCO. These premises are stated to be shop Nos.1 and 37 and godown No.4. Preliminary decree in suit has been passed on 22nd August 2003. On the said date, the Receiver was asked to take possession of properties from whosoever is found in possession and to file his report within a period of twelve weeks. 15/22 270.05-ao--
26. The facts briefly noted above as also rival contentions show an effort being made by the plaintiffs in in S.C.Suit No.6954/2002 to execute the order of appointment of Court Receiver. Section 36 in Part- II of C.P.C. deals with execution and it states that provisions of C.P.C. relating to execution of decrees apply to the execution of orders. The relevant provisions contained in Order XXI show step by step procedure for stage wise execution of such orders/decrees. Under Order XXI rule 97, whenever holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, an application is to be made to the court complaining such resistance or obstruction. Upon receipt of such application, the Court has to proceed to adjudicate upon it in accordance with the provisions contained in the said order. Rule 98 contemplates orders which can be passed after adjudication. After adjudication the Court may allow the application made to it and direct that the applicant be put into the possession of the property or then dismiss his application. It can also pass such other order as it may deem fit. The provisions of rule 101 show the questions to be determined in such proceedings. All questions including questions relating to right, title or interest in the property arising between the parties to the proceeding of such application under rule 97 and relating to the adjudication of the application are to be decided by the court dealing with application. Those questions cannot be decided by a separate suit and last part of rule 101 specifically provides that for determination of such questions, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide all such questions. Rule 16/22 270.05-ao--
103 stipulates that such adjudication under rule 98 has the same force and is subject to same conditions as to an appeal or otherwise "as if it were a decree".
27. These provisions are considered by the Hon'ble Apex Court by time and again. In Prasantha Banerji v . Pushpa Ashoke Chandani and Ors., 2002 (9) SCC 554, the Hon'ble Apex Court has held that a person not party to a decree cannot file separate suit to avoid its execution. He has to raise objection in the execution. In Noorduddin v. Dr.K.L.Anand, 1995 (1) SCC 242, particularly, in paragraph-9, the Hon'ble Apex Court has held that procedure under order 20 rules 98, 100 and 101 is sine qua non for finality of the execution. The judgment reported in Anwarbi v. Pramod D.A.Joshi, 2000 (10) SCC 405 shows that a person in possession should not be dispossessed till his objection is decided. 2004 (11) SCC 511- P Janardhan Rao vs. Kannan & Others, following .
Noorduddin v. Dr.K.L.Anand,supra, the Hon'ble Apex Court has found the provisions of Order XXI rule 97 rightly applied upon an application by a decree holder to remove obstruction to facilitate further execution. There proceedings have been decided after recording of evidence. The judgment reported in Bhanwar Lal v. Satyanarain & Anr, 1995 (1) SCC 6 also shows same law. The attention of the Trial Court does not appear to be invited to this law or procedure & hence, I have made very brief reference to these precedents.
28. In present facts in the order dated 7th February 2005, in paragraph-33, the trial Court has recorded a following finding: 17/22 270.05-ao--
"At this preliminary stage without any evidence it may rather (be) difficult to give any finding as to whether the firm was a tenant or not but prima facie aforesaid documents show that the firm was having interest in the disputed premises"
It has framed, in paragraph-19, the points for its determination and those points also show that it has looked into entire controversy prima facie. Even in paragraph- 33, little later it has again recorded a finding prima facie. Its only a finding on possession is contained in paragraph-34 where it has noted that order dated 30 th December 2002 appointing Receiver was confirmed on 22nd August 2003 by directing him to take possession from parties whosoever found in possession. It found that the preliminary decree in terms of prayer clauses (a) to (c) of the suit came to be passed. It further observed that it would be decided during trial whether the disputed premises constituted property of the firm or not as contemplated under section 14 of the Partnership Act. The said Court has then observed:
"The applicants could not prove that they are in exclusive possession of the suit premises and parties to the suit by collusion obtained order of Court Receiver to oust them."
It is, in this background, that it has dismissed all three notices of motion taken out by applicants before it. Those applicants are appellants before this Court. The contention of learned counsel for respondents herein that appellants did not ask for any opportunity to lead evidence to substantiate 18/22 270.05-ao--
their objection or contention, therefore, cannot be accepted. The trial Court itself has found that the issue needed to be considered only prima facie.
29. The entire order nowhere conclusively records a finding that firm is in possession of any of the premises, namely, shop No.1, shop No.37 or godown No.4. Finding at the most is of firm possessing an interest in those premises. The perusal of earlier order passed by its predecessor on 11th August 2004 shows that in paragraph-4 , the said Court observed that the observations or directions of the court to the Court Receiver to take possession of properties mentioned in suit from whomsoever found in possession should not stand for a minute. That Court then further recorded that suit was not for possession of property or for title and then noted provisions of section 47 of C.P.C. It, therefore, had made all the motions absolute and discharged Receiver. The plaintiffs challenged this order in appeal from order before this court. This Court on 5th November 2004 found that, prima facie, considering the material on record the findings arrived at by the trial Court did not appear to be contrary to that material. This court then observed that looking to the nature of the applications i.e. motions which were disposed of by order dated 11th August 2004 the trial Court ought to have dealt with the material on record in detail and ought to have recorded appropriate findings. This Court, therefore, with consent of parties, set aside the order dated 11th August 2004 only in part. It, however, made it clear that till fresh disposal of notices of motion, the effect of impugned order would not be wiped out and it would be continued in force. As such order 19/22 270.05-ao--
discharging Receiver continued in force. In the light of these observations and directions of this court in the order dated 5 th November 2004, it was not open to the trial court to take other view again prima facie on the basis of very same material. Matter was placed before it for dealing with rival contentions and material in detail. This examination ought to have been in the light of provisions of Order XXI rules 97 and
98.
30. As already observed above, it is not necessary for this Court to record any finding on rival contentions about appreciation of various documents placed by them on record. Though record and proceeding has been called for, it is not necessary to consider those documents and record any opinion about it at this stage. The authenticity of documents & their nature are all disputed issues to be resolved after examination in chief & cross examination. The bailiff report first in point of time show that in an attempt by plaintiffs or parties to S.C.Suit No.6954/2004 to place Court Receiver in possession could not succeed. The bailiff reports reveal obstruction by present appellants. The appellants appeared before the trial Court and raised various contentions. In the light of law as appreciated above, dispute of such nature could not have been looked into by the trial Court as application under order 39 rules 1 and 2 of C.P.C. In fact, the application for removal of obstruction needed to be moved by the plaintiff. But then, in any case, the bailiff reports and Court Receiver report reveal that there was obstruction to delivery of possession and those obstructionists (present appellants) had taken out notice of motion before the said Court. The Court, therefore, 20/22 270.05-ao--
ought to have permitted or called upon the parties to lead evidence so that rival documents on which reliance was placed could be proved and trial Court then could have proceeded further to appreciate the controversy in the light of proved documents or admissible material on record. This appears to be the purpose for which matter was sent back by this Court on 5th November 2004.
31. The reliance upon provisions of order 40 rule (1) sub-rule (2) by the appellants is only to point out a rider on the power of the court to appoint Receiver and to direct their removal from possession of suit properties. The allegations of fraud or collusion between the parties to Suit No.6954/2002 made by them are not and were not very relevant at this stage when they raised obstruction. The only material aspect was that the Court Receiver was not in a position to enter the possession without further Court assistance as third party i.e. persons not parties to the suit were claiming to be in possession. This necessitated an enquiry under Order XXI rule 97 in mode and manner contemplated therein. The objection to locus of appellants is also misconceived. They claim to be in possession and they are not parties to the suit. Execution is obstructed by them. Order XXI rule 97 is, therefore, the only remedy for them.
32. The order appointing Court Receiver was discharged on 11 th August 2004. That discharge was maintained by this Court in its earlier order dated 5th November 2004. The trial Court thereafter by impugned order dated 7th February 2005 has dismissed the objection raised by the present appellant. That order has been again stayed by this Court, 21/22 270.05-ao--
initially, on 22nd February 2005 and thereafter on 15th march 2005. Thus, order discharging Court Receiver still holds the filed & thus, there is no direction to court receiver as of now. In any case, after impugned order dated 7th February 2005, the Court Receiver has not again proceeded to take possession and, therefore, the respondent- plaintiff or then Court Receiver are not in possession.
33. In this situation, the following order shall meet the ends of justice:
ORDER
The impugned order dated 7th February
2005 passed by City Civil Court, Greater Bombay on Notice of Motion Nos.3493/2003; 3494/2003; and 3495/2003 in S.C.Suit No.6954/2002 is set said. The said motions are restored back to the file of that Court for permitting the parties to lead evidence on their respective claims.
Looking to the fact that the suit in which
the said exercise is being directed has been filed in 2002 and preliminary decree has been passed in 2003, the trial Court is directed to expedite the said exercise and to complete it within a period of eight months from the date the parties appear before it.
The parties are directed to appear before
that Court on 20th November 2012 and to adhere to its 22/22 270.05-ao--
further directions in the matter. The parties shall assist the trial Court in expeditious disposal of the proceedings and non-availability of advocate shall not be a ground for any adjournment.
The appellants before this Court shall not
henceforth create any third party interest in the suit premises till the notices of motion are decided in accordance with law by the trial Court.
The appeals are, thus, partly allowed.
However, in the interest of justice, there shall be no order as to costs.
Record and proceedings be sent back
immediately so that parties can appear before the trial Court on scheduled date.
(B.P. DHARMADHIKARI, J.)
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