Hazi Abdul Gafar vs Suraj Mal

A.K. Singh, J.—Heard the arguments and perused the relevant record.

This appeal is directed against the order dated 12th August, 93 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Misc. Case No. 34/93, whereby the appellant''s application under Order 39 Rule 1 & 2 read with Section 151 of the CPC was rejected.

The appellant''s case is that he was in possession of the property in dispute on 11.5.93, the date on which he was dispossessed in execution of a decree obtained by the respondent Suraj Mal against one Sewak Ram. Before his dispossession, when he came to know about the decree passed against Sewak Ram, he moved the Executing Court but his application was rejected. He filed a revision petition before this Court against the order of rejection of his application, but the revision petition was also rejected on the ground that he was a stranger to the decree passed in favour of Suraj Mal (respondent). It is further submitted by the learned Counsel for the appellant that the appellant filed a suit in the lower court with a view to obtain a permanent injunction against the execution of the decree passed in favour of Suraj Mal, and simultaneously filed an application under Order 39 Rule 1 & 2 read with Section 151 C.P.C. praying for interim stay of the execution proceedings, but the application for injunction was dismissed. An appeal preferred against the order of dismissal was also rejected and consequently, the suit was not pressed. Thereafter, the appellant filed the civil original suit No. 23/93 in the court of the District Judge, Jodhpur u/s 6 of the Specific Relief Act for recovery of possession on the ground that he was illegally dispossessed in execution of the decree. That suit was transferred to the Additional District Judge No. 2, Jodhpur and it is pending in that court. It is also submitted by the learned Counsel for the appellant that an application under Order 39 Rule 1 & 2 read with Section 151 C.P.C. was filed by the appellant in the Court of Additional District Judge No. 2, Jodhpur praying that the defendant Suraj Mal be restrained from bringing about any changes in the property in suit and to maintain the status quo, but that application has been rejected by the learned Additional District Judge No. 2, Jodhpur by order dated 12.8.93 and against that order this appeal has been filed.

The learned Counsel for the appellant has further submitted that the impugned order passed by the learned Additional District Judge No. 2, Jodhpur is wrong in as much as the appellant, who was illegally dispossessed of the property in suit, was entitled to obtain an injunction against the defendant directing the defendant to maintain the status quo and restraining him from making any alteration in the suit premises.

In order to support his submission that the appellant was in possession of the property in dispute on 11.5.93, the date on which he was dispossessed in execution of the decree, the learned Counsel for the appellant has placed reliance on the report of the Commissioner and the report given by the Officer of the Court, who executed the warrant issued by the Executing Court. The report of the Commissioner shows that the Commissioner inspected the disputed site on 16.12.84 at 11 a.m. in presence of both the parties, namely Shri Abdul Gaffar and Suraj Mal. The report of the Commissioner shows that at the time of inspection of the premises, five machines were found in the "Varandah" and they had already been fastened to the earth. Four machines were lying in the open Chowk and old tyres and some other goods were lying there. Tyres were also lying in the Chowk on the northern side near the wall. The learned Counsel for the appellant has submitted that the appellant carried on the work of repairing tyres in the suit premises and the report of the Commissioner prima facie shows that he was in possession of the premises on 16.12.1984 when the Commissioner inspected the same. The report of the Officer, who executed the warrant for delivery of possession, shows that before dispossessing the applicant, police help had been sought. Small wall made of stone was found at the site and the same was removed. Old tyres of several sizes scrap of tyres and tubes was also found at the site. The learned Counsel for the appellant has submitted that since tyres and tubes were lying at the site when the delivery of possession was given to the defendant Suraj Ma in execution of the decree, it is prima facie proved that the appellant was in possession of the property in suit on 11.5.1993.

Regarding his contention that the appellant was unlawfully dispossessed, the learned Counsel for the appellant has submitted that the appellant was not impleaded in the suit instituted by Suraj Mal against Sewak Ram and even in the execution proceedings when the appellant wanted to raise his objection, his application was rejected and the revision was also rejected by this Court on the ground that being a stranger, he had no locus standi to oppose the execution proceedings. It is also submitted by the learned Counsel for the appellant that the view taken by this Court that in execution proceedings, that a stranger has no locus standi is no longer good law, because it is held by the Hon''ble Apex Court in Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, that Order XII Rule 97 of CPC are comprehensive enough to include, apart from judgment-debtor or anyone claiming through him, even persons claiming independently and who would, therefore, be total strangers to the decree.

I have considered the submissions made by the learned Counsel for the appellant. In Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (supra), their Lordship considered the provisions of Order XII Rules 35, 97, 98, 99, 101 and 103. The question which was considered by the Hon''ble Apex Court was formulated in the following words -

Whether the appellant who claims to be a stranger, occupying decretal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree- holder against the judgment-debtor qua such property can request the Executing Court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI, Rule 99 Code of Civil Procedure?

In that case, the High Court agreeing with the Executing Court had negatived the aforesaid request of the appellant by holding such stranger to the decree who has put forward his obstruction in the execution proceedings has the only remedy under Order XXI Rule 99 CPC after his obstruction is first removed and he is dispossessed of the premises.

After considering the provisions of Order XXI Rule 35 CPC, their Lordships of the Hon''ble Supreme Court observed-

A mere look at the aforesaid provision shows that warrant for possession can be straightway sought against persons occupying immovable property which his subject-matter of decree by the decree-holder provided such persons who are occupying the suit property are judgment-debtors or persons claiming through the former. We are concerned with the situation in which the appellant resisted the execution proceedings on the ground that he was a stranger to the decree and claimed an independent interest in the suit immovable property possession of which was decreed in favour of respondent No. 1 decree-holder. The Nazir in his report dated 28th April, 1991 has executed on spot on account of the resistance and obstruction offered by the appellant, amongst others. Once that report was received by the Executing Court respondent No. 1 decree-holder naturally became alive to the fact of such resistance on spot by the appellant, amongst others. Thereafter when he moved the application on 6th May, 1991 for issuance of fresh warrant for possession with the help of police force though the application purported to be under Order XII, Rule 35 it would strictly not fall within that provision as the decree-holder wanted to bypass the obstruction and resistance offered by a stranger to the decree, namely, the appellant who was not claiming any right, title or interest through the judgment-debtor. Whether his claim was right or wrong on merits is a different matter. But once such resistance was offered by him proper procedure which was required to be followed by respondent No. 1 decree-holder was the once contemplated by Order XXI, Rule 97, CPC.

After considering the provisions of Order XXI, Rule XII CPC their Lordships observed -

It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order XXI, Rule 97 CPC could have been offered by any person. The words ''any person'' as contemplated by Order XXI, Rule 97 Sub-rule (1) are comprehensive enough to include apart from judgment- debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree.

In view of the law laid down by the Hon''ble Apex Court, it must be said that the decree holder Surqj Mal was legally bound to submit an application under Order XII Rule 97 CPC after he was informed that the appellant Hazi Abdul Gaffar was resisting the execution of the decree and claiming an independent title to the suit premises. It does not appear that the defendant moved any application under Order XII Rule 97 C.P.C. and the application moved by the appellant was rejected on the ground that a stranger to the decree could not be heard in execution of the decree.

Keeping in view the law down by the Hon''ble Supreme Court in Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (supra), it must be said that if the decree holder comes to know that a person claiming an independent right or title to the property is resisting or obstructing the execution of the decree, he should move an application under Order XII Rule 97 C.P.C. in place of avoiding that provision by any means and if such an application is not moved by the decree-holder and the person, who is in possession of the property is also not permitted to raise his objections against the execution of the decree relating to immovable property in his possession, prima facie it will have to be said that the dispossession was contrary to the scheme envisaged by Order XII Rule 97 of the Civil Procedure Code.

For the reasons mentioned above, I am of the opinion that this appeal deserves to be allowed and it is in the interest of justice that the respondent-defendant be directed to maintain the status quo and be restrained from making any alteration in suit property till the disposal of the suit filed by the appellant. The appeal is disposed of accordingly.