Sasmita Pattanaik and Others vs Sunanda Pattanaik and Others

S. Panda, J.—This is an application under Article 227 of the Constitution of India challenging the order dated 22.12.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in CMA No. 514 of 2007 arising out of Execution Case No. 4 of 2007 rejecting the petitioners application on the ground that the petitioners had no locus stand to file petition u/s 151 of CPC as they were not parties to the execution proceeding nor was any decree going to be executed against them.

The brief facts of the case are as follows:

Opposite party No. 1-Sunanda Pattanaik along with one Sidhartha Pattanaik are the recorded landholders of Plot No.1202 measuring an area Ac.0.108 dec. under Khata No.1109 of Mouza Cuttack Town Unit No.22, P.S. Mangalabag. In the year 1994, Sidhartha Pattanaik tried to evict petitioner No.1 from the suit plot and failed. Thereafter, opposite party No.1 filed Civil Suit No.412 of 2003 against Sidhartha Pattanaik claiming that the entire suit land belonged to her. The said suit was a collusive one. In the suit, Sidhartha Pattanaik relinquished his entire share in favour of his sister-Sunanda Pattanaik (opposite party No.1). Opposite party No.1 filed Eviction Suit No.159 of 2003 against the present opposite party Nos.2 to 5 who are alleged to be residing in the suit premises. The said suit was decreed against opposite party Nos.2 to 5 who are the Judgment Debtors. Eviction warrant was issued against them to vacate the suit premises. At that time, the petitioners came to know about the execution proceeding and after due consultation, they filed an application under Order 1, Rule 10, CPC and another u/s 47 of CPC on an erroneous advise. Both the applications were rejected on 5.12.2007 on the ground that those were not maintainable. Thereafter a petition u/s 151 C.P.C. for recall of the order issued to give delivery of possession was filed by the petitioners stating therein that they were staying in the suit premises and if process server would evict them, they would suffer irreparable loss and injury. Said application was also rejected by the Executing Court on the ground as aforesaid.

It may be noted here that the petitioners are the wife and sons of Sidhartha Pattanaik, who filed Civil Proceeding No.178 of 1997 against the present petitioner No.1 before the Family Court, Cuttack to declare his marriage with petitioner No.1 void. The petitioners are residing in the said premises on their own right without any interference from any corner. Since they were in possession of the suit premises and were not made parties to the Eviction Suit, they filed the application before the executing Court for protection of their occupancy right.

Learned Counsel for the petitioners submitted that as per Order 21, Rule 97 CPC, their application was to be investigated and the executing Court had to decide their right over the disputed property.

Learned Counsel for the opposite parties submitted that since the husband of petitioner No.1 has already relinquished his share in the suit property, these petitioners have no right over the same. The judgment and decree passed in C.S. No.412 of 2003 is hit by the principle of res judicata and the executing Court rightly rejected the application of the petitioners. Hence, interference with the impugned order is not warranted. In support of his contention, he cited a decision of the apex Court reported in Amritsagar Gupta and Others Vs. Sudesh Beharilal and Others, .

From the aforesaid rival submissions of the parties, it appears that the petitioners claimed their right over the disputed property which is the subject matter of the execution proceeding as they alleged to be in possession of the same for more than statutory period. They also do not claim their right over the property through Sidhartha Pattanaik who has relinquished his share in the property. In Amrit Sagar Gupta and other''s case (supra), it has been held by the apex Court as follows:

It is not necessary, in order that a decree against the manager may operate as res judicata against copaceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family.

The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary, where the manager is the plaintiff, that the plaint should state in district terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is not named as such.

The aforesaid decision is not applicable to the present case as the petitioners claim their independent possessory rights. Admittedly, they were not parties to Eviction Suit No.159 of 2003 out of which the present execution proceeding has arisen.

To deal with the present case, it is necessary to go through the Order 21, Rule 97 of the CPC which reads as follows:

Resistance or obstruction to possession of immovable property - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

As provided under Sub-rule (2) which was substituted by the Amending Act, 1976, on an application under Order 21, Rule 97 being made, the Court shall proceed to adjudicate upon the application in accordance with the provisions which are contained in Order 21, Rule 97 or 99, CPC and the right, title and interest of the parties thereto shall be determined by the Court conclusively as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit.

Under Order 21, Rule 35, CPC the executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are "by removing any person bound by the decree". Therefore, Order 21, Rule 36, CPC conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, Rule 99, CPC conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. All the questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99, CPC shall be determined by the Court and not by a separate suit. By virtue of the Amendment Act, 1976, one has not to go for fresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the execution proceedings. The expression "any person" under sub-rule (1) is used deliberately for widening the scope of power so that the executing Court could adjudicate the claim made in any such application under Order 21, Rule 97, CPC. Therefore, by the use of the words ''any person'' it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger.

Under Order 21, Rule 101, CPC all disputes between the decree-holder and any such person are to be adjudicated by the executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get it adjudicated in the very execution proceedings. The provision has been made in the Civil Procedure Code.

The apex Court in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, has held as follows:

It cannot be said that the only remedy available to the stranger to the decree for possession who has resisted its execution, to have his claim adjudicated is the one under Rule 99 of Order 21 after he has lost possession to the decree-holder and that he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings.

xxx xxx xxx The view that claim of stranger obstructionist would only be considered after he has lost possession to decree-holder would result in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder.

Since the present petitioners are coming under the category of stranger, the aforesaid provisions and principles are applicable to them and even if they had filed an application u/s 47, CPC and another under Order 1, Rule 10, CPC to be impleaded as parties, the executing Court should have considered their application taking into consideration the other provisions of the CPC.

Law is well-settled that filing of a petition mistakenly under wrong provision of law or giving a wrong nomenclature would not oust the jurisdiction of the Court, if the relief sought in the petition can be granted otherwise under some other provision of law. If the Court is vested with the power to deal with the application and grant relief only because the application or petition has been filed under a misconception quoting a wrong provision of law, the application should not be rejected. Since the present petitioners'' right is going to be affected, the executing Court should have heard them and adjudicated their rights as per the prescribed provision of the Civil Procedure Code.

The power of superintendence of this Court under Article 227 of the Constitution of India is not confined to administrative superintendence only, but includes within its sweep the power of judicial review. The power and duty of this Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of the apex Court that the High Court can interfere under Article 227 of the Constitution of India in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction which amounts to error of law apparent on record, a patent error in procedure or resulting in manifest injustice. (See 1997 (XI) OLR 305 Achutananda Baidya v. Prafulla Kumar Gayen and Ors.). In the present case, since the executing Court has failed to exercise the jurisdiction vested with it, the impugned order needs to be set aside.

In view of the above, position of law, this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, sets aside the impugned order dated 22.12.2007 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in CMA No.514 of 2007 arising out of Execution Case No.4 of 2007 and directs the executing Court to consider the said application afresh.

According, the writ application is disposed of.