Digambar Rao and Another vs Dhondu

Jaganmohan Reddy, J.—This is a revision petition against an order of the Munsif of Nan-ded, rejecting the objection of the Petitioner-decree-holder on the ground that the claim petition of, the Respondent is maintainable u/s 372 of the Hyderabad Code of Civil Procedure, corresponding to Order XXI, Rule 97 of the Indian Code of Civil Procedure. The facts for the purposes of this revision petition are that the Petitioner had obtained with respect to the suit property a declaration of his right and a permanent injunction against one Raju Bai, the judgment-debtor. The claim Petitioner''s adoptive father, it is alleged, also had obtained a decree on 29th Amardad, 1348 Fasli against the judgment-debtor and has been in possession of the suit land since last 10 years. The claim Petitioner who alleges that he is in possession of the said land after the death of the adoptive father, fearing that the revision Petitioner might execute his decree and get him dispossessed, has put in a claim petition which is the subject of this revision application.

The short point to be considered is whether he has any such right to put in a claim petition in the execution of a decree for permanent injunction against the judgment-debtor which proceeds on the assumption that he or she is in possession of the suit land.

The contention of the learned Advocate for the Petitioner is that if he is not in possession of the suit property as alleged, but the Respondent is in fact in possession of it, then the execution of his decree would be infructuous inasmuch as the execution of a decree for permanent injunction can only be against the person of the judgment-debtor directing him not to interfere with the possession and enjoyment of the land alleged to be in possession of the decree-holder. The Respondent on the other hand submits that since he is affected by the decree he has a right to put in a claim petition u/s 372 read with Section 644 of the Hyderabad Code of Civil Procedure, even though be may not be a party to the suit in which the decree is being executed.

Where a decree in a suit for permanent injunction has been obtained, the mode of execution has been laid down in Section 289 of the Hyderabad CPC corresponding generally to Order XXI, Rule 32. Sub-section (1) of the said Section 289 is as follows:

Where the party against whom a decree for specific performance or for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by his detention in the civil prison or by attachment of his property or by both.

It will be seen that under the above section the revision Petitioner can only execute his decree, if the judgment-debtor is disobeying it deliberately by either having her detained or by attaching her property. In neither of these cases can the Respondent-claim-Petitioner be adversely affected by the execution of the decree, if, in fact, he is in possession of the suit property. At the time of the execution, if his possession is going to be affected by an attachment of his property purporting to be the property of the judgment-debtor he can always obstruct and resist and the decree-holder will be entitled "to apply u/s 372 of the Hyderabad Code corresponding to Order XXI, Rule 97.

The party resisting can then satisfy the court that he is, in good faith, in possession of the property on his own account, whereupon the court is bound to make an order dismissing the execution petition u/s 374 of the Hyderabad CPC Order XXI, Rule 99. It may be observed that the said provisions come into operation in the case of execution of decrees which are for possession or which are in effect deemed to be for possession as in the case of decrees for partition.

In the case of Sakeena Begum v. Salah 39 Deccan LR 302, Ganganath C.J. and Mohammad Ahmed Ansari J. held that a third person cannot have the fact of his possession investigated in execution proceedings unless and until he is dispossessed. Once he is dispossessed he can put in a claim petition u/s 375 of the Hyderabad CPC corresponding to Order XXI, Rule 100. A decree-holder or auction-purchaser can always apply for having an obstruction or resistance to the decree set aside, and the Court can then investigate the fact of possession of the third party. But this does not mean that a third party can, before he is dispossessed, compel the decree-holder or auction-purchaser to have the fact of his possession investigated. Their Lordships have, in the above case, considered in extenso the various conflicting rulings and have dealt with the matter in great detail.

In Narain v. Bagayya 40 Deccan LR 275, Khaliluzzaman and Mir Siadat Ali JJ. have no doubt thought that they were bound by the Full Bench judgment of live judges in --'' 12 Deccan LR 251, and held that where there appears to be a dispute as to possession between the decree-holder and a person not a party to the decree, the Court is bound to investigate a claim petition, which is itself in the nature of an obstruction or resistance even where the decree-holder has not yet presented an execution petition. It may be noted that Their Lordships have rightly pointed out at page 278, 40 Deccan LR 275, that the two Full Bench judgments which they were discussing, i.e., '' 12 Deccan LR 251 '' and '' 29 Deccan LR 275 '' were cases in which the execution proceedings in a decree for possession were commenced by the decree-holder and it was in those circumstances that the claim-Petitioner put in his petition.

It is therefore evident that, when some of the Judges of the Full Bench went further and stated that even where a decree is not being executed, a third party is entitled to have his right to possession investigated even though he is not a party to the decree, that statement would appear to be ''obiter''. Apart from that a perusal of - '' 12 Deccan LR 251 '' would, as pointed out in Sakeena Begum v. Salah 39 Deccan LR 302, shows that the majority opinion of Nawabs Mirza Yar Jung, Siraj Yar Jung and Zia Yar Jung at page 258 was that a third party u/s 375 of the Hyderabad CPC would only have a right to present a claim petition if he is dispossessed from the land and that was the answer of the Full Bench of the five Judges in the above referred case. With great respect this aspect of the Full Bench judgment appears to have been overlooked in '' 40 Deccan LR 275 ''.

8.The consensus and the weight of authority in Hyderabad and in India appear to be in favour of the above proposition which is also borne out by the plain language of the provisions referred to above. Jagannath Brijraj v. Khaja Faizuddin AIR 1935 Nag 212; Milkhi Ram v. Basant Singh AIR 1931 Lah 686; Kiranshashi Dassee v. Official Assignee, Calcutta AIR 1933 Cal 246; Sobha Ram Vs. Tursi Ram and Others, , are all cases which support the above proposition. At any rate the ''aforesaid cases do not affect this particular case because, as already observed, there can be no question of any, third person being dispossessed, in that the decree, where execution is anticipated, is itself not one for possession but for a declaration of right and permanent injunction. If the claim Petitioner is affected by the decree to which he is not a party, he can always file a suit to have the decree under execution set aside.

There is no force in the contention of the Respondent''s counsel that the inherent powers u/s (644 of the Hyderabad CPC (Section 151 of the Indian Code of Civil Procedure) should be utilised in his favour. This has been held to be so in the case of Suresh Chandra Sen Vs. Jogesh Chandra Sen and Another, and Narendra Krishna v. Great Eastern Hotel Ltd. 86 Cal LJ 72. I am also of the view that where the Code of CPC has provided for a complete procedure under Order XXI, relating to the execution of decrees and orders, there is no justification for the application of the residuary Section 644 of the Hyderabad CPC (Section 151 of the Indian Code of Civil Procedure) in favour of a person not a party to the decree for restraining execution of such a decree.

In the result, the revision petition is allowed with costs and the order of the lower Court is set aside.

Naik, C.J.

I agree.