Shayam Piari Prashar vs Gurdwara Singh Sabha and Others

V.D. Misra, C.J.—Lal Dass obtained a decree for possession of a single storeyed house of Dyerton No. 2, situated in village Kanlog, Sub-Tehsil Simla, and for the recovery of Rs. 1,000/- as damages. This decree was passed against Gurdwara Singh Sabha, Cart Road, Simla. The decree was obtained on 24th July, 1967. It became final on 9th June, 1972, when the second appeal of the judgment debtor was dismissed by this Court. Thereafter the decree-holder applied for the execution of the decree. This decree could not be executed because of resistence and obstruction put up by Shri Kishan Singh and Shri Devi Singh, claiming themselves to be the President and Secretary respectively of Gurdwara Sabha Bir Khana, Simla. When the bailiff''s report was received by the executing Court, a notice was issued to these two persons calling upon them to show cause why action should not be taken against them. A reply to this notice was filed. It was, inter alia, stated that the property in question belonged to Gurdwara Kalgidhar Sabha and so the decree obtained against Gurdwara Singh Sahhai could, not be executed. The decree-holder, in his reply, controverted the allegations of the objectors. It was, inter alia, prayed by the decree-holder that the objections be dismissed because they were not only baseless, mala fide and an afterthought, but were the result of collusion. It was also prayed that "actions under Order 21, Rule 35 and Order 21, Rules 97 and 98/Section 151 Code of Civil Procedure, may kindly be taken to put the decree-holder in possession." Parties were allowed to lead evidence. The executing Court came to the conclusion that the decree could not be executed against the aforementioned two objectors. The decree-holder appealed. The appeal was heard by the Additional District Judge, Simla. A preliminary objection was raised to the maintainability of the appeal. This objection found favour and the learned Additional District Judge held that the appeal was not maintainable since the decision was not given under Order 21, Rule 97 of the Code of Civil Procedure. The decree-holder has now approached this Court in revision.

My attention has been drawn to the fact that though in the appeal to the District Judge, ground No. 9 did specifically say that there was no application under Order 21, Rule 97 of the Code of Civil Procedure, the fact remains that all the proceedings were held under that rule. It is, therefore, submitted that the learned Additional District Judge should not have examined the case superficially but should have looked into the substance of the whole proceedings.

As already pointed out, it was the decree-holder who specifically stated that proceedings under Order 21, Rule 97 should be taken. It is true that in the appeal the decree-holder took the stand that there was no application under the rule. But he could not blow hot and cold simply because the decision did not go in his favour, and say that no application under Order 21, Rule 97 was filed.

Now, whenever there is resistence or obstruction, proceedings under Rule 97 of Order 21 can be taken. These proceedings can be initiated on an application made to the Court by the decree-holder. This application may be oral. The notice given to the objectors by the Court was obviously because of Rule 97. In any event the decree-holder had specifically stated that proceedings under Order 21, Rule 97 be taken. Therefore, there is no doubt that the proceedings were held under this rule.

I find that the Lahore High Court in Gulab and Ors. v. Chhuttan and Anr. AIR 1931 Lah13, held that Order 21, Rule 97 does not require any application in writing and an oral application can be made by the decree-holder. It was further held that where both the parties take part in investigation held under Order 21, Rule 97, this would tantamount to an implied application by the decree-holder to hold the investigation. In the instant case, as already stated, there was an express prayer in writing by the decree-holder praying for such an investigation.

In Alam Sher v. Dasu Ram and Ors. AIR 1934 Lah 193, the decree-holder''s Counsel was present when the bailiff''s report complaining of the obstruction was placed before the Court. It was held that it was reasonable to hold that further proceedings were taken at the instance of the decree-holder.

In Motamarii Ramaiah and Others Vs. Malliah and Others, a learned single Judge of Andhra Pradesh High Court followed the aforementioned decisions of the High Court of Lahore. In that case an objector filed an application under Order 21, Rule 97 of the Code of Civil Procedure. The decree-holder, instead of raising an objection to the maintainability of the application, filed a counter and took part in the proceedings. It was ruled that the proceedings were held under Order 21, Rule 97 of the Code of Civil Procedure.

I find that the circumstances of this case clearly show that the proceedings before the executing Court were under Order 21, Rule 97 of the Code of Civil Procedure. It is true that the Counsel of the decree-holder raised an objection in appeal that these proceedings were not under Order 21, Rule 97. Even if this objection was raised, this plea had to be dismissed on the short ground that the decree-holder who joins a proceeding under Order 21, Rule 97 cannot turn round when the decision goes against him and contend that the proceedings were not under that particular rule.

The learned Counsel for the decree-holder has moved two applications, G.M.Ps. Nos. 1875 and 1876 of 1982. In one application he has prayed that the present revision may be treated as an appeal if it is found that the appeal before the Additional District Judge was maintainable. The necessary Court-fee has already been affixed. As I have come to the conclusion that the appeal lay before the Additional District Judge since the proceedings before the executing Court were under Order 21, Rule 97, I would allow the present revision to be treated as an appeal.

The appeal is, therefore, allowed and the impugned order is hereby set aside. The Additional District Judge is directed to hear the appeal filed by the decree-holder and decide it in accordance with law.

Devi Singh, Respondent No. 3, is present in person. The parties are directed to appear before the Additional District Judge, Simla, on 12th July, 1982. No order as to costs.