Elanthammal and another vs Alagar and another

The petitioners whose application under Order 21, Rule 97, CPC was rejected have filed the present civil revision petition.

According to the averments in the petition filed in the Court below, the shops subject matter of the civil revision petition at 28th Cross Street,

Indira Nagar, Adyar, Chennai-20, were allotted to the petitioner Nos.1 and 2 respectively. They had put up their own construction, obtained

electricity connection and had been carrying on the business. The allotment was made to the first petitioner to put up a mechanical shed and to the

second petitioner to put up a wet grinder. The first respondent filed W.P.No.10700 of 1989 where one Ganapathy Automobiles, one V.K.G.

Durai and one Meena Auto Works were made the sixth, seventh and eighth respondents and the prayer was for a mandamus to abate the nuisance

caused by them. The writ petition was ordered by this Court on 19.9.1998 directing the said respondents to apply for license fee from the

Corporation to carry on their workshop and other business and obtain orders from the Corporation. In the order passed in the writ petition it was

stated that the respondents had paid the license fee. Therefore, four weeks time was granted to pass orders thereon. The learned Judge left it open

to the first respondent therein namely the Commissioner, Corporation of Madras, to consider the question of nuisance. On 23.9.1994, the first

petitioner obtained a decree in O.S.No.2711 of 1993 for permanent injunction restraining the Chairman, Tamil Nadu Slum Clearance Board, who

is the second respondent herein from interfering with her possession. Subsequently, they came to know that the first respondent had obtained

decree on 28.2.1994 in O.S.No.7712 of 1990. They also learnt that this suit was filed by the first respondent against the second respondent for a

mandatory injunction to remove the automobile workshop tinkering, welding and painting in the suit properties. The petitioners were not parties to

the suit. The first respondent filed E.P.No.2043 of 1996 to execute the decree obtained by him on 28.2.1994 in O.S.No.7712 of 1990. After

getting details of the suit the petitioners filed O.S.No.1404 of 1998 for cancelling the decree and also for an application to stay the operation of the

decree. The petitioners also filed an application under Order 21, Rule 97, CPC in the Execution Petition filed by the first respondent to adjudicate

upon her right. This was rejected and hence the above civil revision petition was filed.

The Registry posted the civil revision petition for maintainability and at this stage itself notice was ordered and the respondents entered

appearance. The civil revision petition itself was argued by both the parties extensively.

Mr.C. Rajagopalan, learned counsel for the petitioner made the following submission. The properties had been allotted to the petitioners for the

purpose specified above as a rehabilitation measure and they have also been carrying on the business for the last 12 or 13 years and therefore,

their possession cannot be disturbed except in accordance with law. The decree which is sought to be executed for mandatory injunction will result

in their dispossession and therefore, though they are strangers to the suit their application under Order 21, Rule 97, CPC must be heard. Though in

the written statement filed by the second respondent in the suit O.S.No.1404 of 1998 referred to above it is stated that the allotment has been

cancelled, he is instructed by the parties to state that they have challenged the cancellation by way of appeal to the Government and no orders have

been passed thereupon. In any event the fact remains that they are in possession of the properties in question. He relied on the following decisions

to support his case that the petitioners are entitled to file an application under Order 21, Rule 97, CPC and to have their rights adjudicated upon.

(1) Bhanwar Lal Vs. Satyanarain and another, ; (2) Shreenath and Another Vs. Rajesh and Others, ; (3) Silverline Forum Pvt. Ltd. Vs. Rajiv Trust

and another, ; (4) Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, 1997 (2) LW 266

Mr. Sitharanjan Das, learned counsel for the first respondent on the other hand submitted that the petitioners now before this Court are not in

actual possession and that they have parted with their possession. A letter was produced by the learned counsel issued by the Assistant

Commissioner, Corporation of Madras stating that no license application had been received from Meena Auto Works. He also relied on the

counter filed by the second respondent herein in O.S.No.1404 of 1998, which has already been referred to above. He produced in his typed-set

of papers certain proceedings before the Metropolitan Magistrate''s Court in respect of the Ganapathy Auto Works, Meena Auto Works etc.,

which according to him would show that these petitioners are not actually in possession of the shop numbers earlier referred to. He also submitted

that in any event Order 21, Rule 97, CPC would not apply.

Order 21, Rule 97, CPC deals with resistance or obstruction to possession of immovable property. Actually, as per the rule the decree holder

when faced with resistance or obstruction may make an application complaining of such resistance and the Court shall adjudicate upon the

application. According to the learned counsel for the respondent Rule 97, deals with the light of the decree holder to file an application, in cases

where the decree is for possession of immovable properties. In this case, the petitioner is neither a decree holder is the decree one for recovery of

possession and therefore, the petition according to him should be rejected and was rightly rejected.

No doubt, the decree in O.S.No.7712 of 1990 is for a mandatory injunction to remove the welding and the tinkering materials from the

properties. But, when the case of the petitioners is that their possession in the disputed property is itself only for carrying on the tinkering, welding

and other mechanical work, compliance with the decree for mandatory injunction to remove all the materials would in effect erase their possession.

Once everything is erased to the ground or thrown out, it amounts to removing their possession or presence from the disputed property. As

regards the point raised by the learned counsel for the respondent that actually it is not the petitioners who are in the suit property but they had

sublet it to third persons. This is strongly denied. According to the learned counsel for the petitioner, it is the 1st petitioner''s son Kuppusamy who

is carrying on the mechanical shop in the place allotted to her and that it is not correct to state that it has been sublet to anybody.

As regards the objection raised by the learned counsel for the respondent as to whether the petitioner not being a decree holder is entitled to file

an application under Order 21, Rule 97, Civil Procedure Code, the decision reported in Shreenath and Another Vs. Rajesh and Others, , provides

the answer. In that case the respondent before the Supreme Court filed a suit for redemption against the second respondent and it was decreed.

The decree directed the delivery of the vacant possession of the mortgaged property. When the decree holder moved an application for delivery of

vacant possession the appellants before the Supreme Court filed an application under Order 21, Rule 97, CPC resisting that they cannot be

dispossessed in terms of the decree as they were not parties to the said suit nor did they derive any right and title through the judgment-debtor.

Their application was dismissed. The High Court held that the Executing Court has no jurisdiction to start an enquiry suo moto or at the instance of

a third party other than the decree-holder/auction purchaser under Order 21, Rule 97, Civil Procedure Code. Against this, the third parties to the

suit who filed an application under Order 21, Rule 97 approached the Supreme Court. The Supreme Court, dealt in detain with the various

provisions of Order 21 and came to the conclusion that both under the old law and the present law the tenant or any person claiming a right on his

own of the property in respect of which he resists dispossession has the right to have his objection under Order 21, Rule 97, CPC decided by the

Executing Court itself.

Para 15 of the said decision is extracted hereunder:

Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is

covered by Rule 97. Under Rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is

dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the Executing Court. But this

will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is

in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be

under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object

in the execution proceeding under Order 21, Rule 97. One has not to wait for his dispossession to enable him to participate in the execution

proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree- holder. For all the

aforesaid reasons, we do not find the Full Bench in Smt.Usha Jain (supra) correctly decided the law.

Since various decisions of the Supreme Court on a consideration of the entire scheme of the Code have held that what is sought to be achieved

is an end to the protraction of the execution and shortening of litigation, the Supreme Court set aside the rejection of the application of the third

party under Order 21, Rule 97, CPC and directed the Executing Court to consider and dispose of the application of the third party under Order

21, Rule 97, CPC after giving opportunity to the parties in accordance with law.

In this case, it is not in dispute that the petitioners are strangers to the decree. And though the decree for is one mandatory injunction, the

outcome of the execution of decree would result in dispossession. There is also the decree in O.S.No.2711 of 1993 in favour of the first petitioner.

The Court below has rejected the application on the ground that no documents were filed along with the petition and that the petitioner had

wrongly included the Chairman of the Tamil Nadu Slum Clearance Board as a respondent. On these two grounds alone the application appears to

have been rejected. The Chairman, Tamil Nadu Slum Clearance Board is the defendant in O.S.No.7712 of 1990. It is the execution of the decree

in that suit that is resisted by the petitioners. It passes comprehension as to how an application can be made in the execution petition without

impleading him. The other reason for rejecting the application is that no documents were filed to support the case of the petitioners. The application

itself is not numbered. It was rejected. Therefore, there was no opportunity for the petitioner to produce the documents, if any, to support their

case.

Several documents and proceedings were referred to by both the counsel who filed the same in their typed-set of papers. Therefore, it is clear

that this is a matter which requires investigation and has to be adjudicated upon and definitely does not deserve to be dismissed at the threshold as

has been done.

The reasons given by the Court below are not sustainable. Following the judgment of the Supreme Court, quoted above, I have to hold that

the petitioners herein are entitled to move an application under Order 21, Rule 97, CPC and seek adjudication. The civil revision petition is

therefore allowed. The Court below is directed to take the Execution Application on file and dispose of the same after giving due opportunity to all

the parties. No costs.