Smt. Laxmipriya Bhuyan vs Narmadabala Parida and Others

G.B. Patnaik, J.—This appeal is directed against the judgment of the learned Subordinate Judge, Balasor, in Mise. Case No. 2 of 1974 on

an application being filed by the Appellant under Order 21, Rule 100. Code of Civil Procedure, before its amendment in 1976. The application

was filed on 2-1-1974. The relevant amendment to the Code of Civil Procedure, came into force with effect from 1-2-1977 while the said

application was pending and, therefore the amended provision would apply. It was pleaded in the application that the applicant had purchased the

suit land from opposite parties 2 and 3 by two registered sale deeds dated 2-3-1959 and thereafter continued to be in possession of the same. She

had constructed a kutcha house and had planted several cocoanut and mango trees and renovated a tank and had reared fish therein. On 26-11-

1973 the Civil Court Commissioner went to give delivery of possession to opposite party No. 1 but as she resisted possession could not be

delivered. Subsequently, the said opposite party No. 1 with the assistance of military police forcibly dispossessed her from the suit land. According

to the averments in the application, the applicant was not a party in the original suit alleged to have been filed by opposite party No. 1 against

opposite parties 2 and 3 and therefore, opposite party No. 1 had no right to dispossess the applicant. She thus prayed for restoration of her

possession in respect of Ac.o. 681/2 decimals of land mentioned in Schedule-Kha of the application.

Opposite party No. 1 who is Respondent No. 1 in this appeal, filed objection denying the allegations made. According to her case, she was

entitled to one-third interest over Schedule Kha and opposite parties 2 and 3 fraudulently took a sale deed from her in respect of her land for

which she filed O.S. No. 25 of 1963 against them as wen as against the husband and sons of the present applicant. That suit was decreed in her

favour. The husband of the applicant never indicated that the applicant was in possession of the land. According to her case, the applicant was

merely a benamdar and the suit having been decreed against her husband, she was bound by the decree and was not entitled to the relief sought for

in the application. It was also stated that in the final decree proceeding, the applicant never raised any objection. On these averments, she prayed

that the application be dismissed.

The learned Trial Judge on consideration of the materials before him came to the conclusion that the applicant was not the real owner of the suit

land and was a benamdar for her husband and she had failed to establish her possession over the land from which she had been dispossessed and

accordingly, the application was rejected.

Mr. Pal appearing for the Appellant contends that the learned Subordinate Judge failed to appreciate the evidence on record and his conclusion

that the Appellant was a benamdar for her husband is not borne out by any evidence on record. It is also argued that in the absence of definite

evidence to prove that the Appellant had any knowledge of the earlier suit, the learned Trial Judge committed an error in finding that the applicant

was bound by the decree against her husband. Mr. Pal also argues that the evidence of possession has been illegally rejected and on the materials

it must be held that the Appellant was in possession until she was dispossessed and therefore, invoking the provisions of the Code of Civil

Procedure, she would be entitled to get back possession.

During the pendency of the appeal, when notice was issued, it was made known that Respondent No. 3 had died while the matter was pending

in the Court below. Accordingly, an application for substitution on setting aside abatement and condoning the delay had been filed, but later on Mr.

Pal withdrew the said application and on 13-9-1978 a Bench of this Court had ordered that the question of abatement shall be taken into

consideration at the time of hearing. Mr. Pal, however, urges that no relief is being claimed against Respondent No. 3 and, therefore, the appeal

would not abate for non-substitution of Respondent No. 3.

It transpires from the records of the case that though the application was filed prior to the amendment of the CPC in 1976 but by the time it was

disposed of the amended provisions had come into force. The amendment made in 1976 has altered the scheme of Rules 97 to 103 of Order 21,

CPC and under the amended rules, the Court is required to hold a full-fledged enquiry, as would appear from the amended Rules 98, 100 and 101

of Order 21, CPC and the orders passed thereunder would be treated as a decree. In other words, whereas before 1976, the procedure was that

the matter would be disposed of in a summary manner, and the decree-holder was entitled either to take recourse to the summary remedy or to file

a regular suit and the right of suit was not being taken away even if the application under Order 21, Rule 97 had not been filed, but after the

amendment, since the application filed under Order 21 has to be disposed of as a regular suit, the aggrieved party cannot again file another suit.

The learned Trial Judge has failed to bear in mind the aforesaid legal position while disposing of the matter and it is conceded by the learned

Counsel appearing for the Respondent No. 1 that the matter has to be re-adjudicated bearing in mind the amended provision of the CPC and the

Trial Judge should dispose of the matter like trying a suit. Since that has been admittedly not done, as contended by Mr. Pal and as conceded by

the learned Counsel for Respondent No. 1, the impugned judgment cannot be sustained. In view of this position, it is not necessary for me to

consider the several questions on merits urged by Mr. Pal. Further, the question of abatement need not be decided in this Court since the

Respondent No. 3 died during the pendency of the application, itself in the Court below and, therefore, abatement, if any had occurred in that

Court and as the matter is being remanded to the learned Trial Judge for re-disposal, it would be meet and proper to direct the said trial Court to

consider the question; of abatement on account of non-substitution of Respondent No. 3 and to pass appropriate orders thereon.

In the premises, as aforesaid, the impugned judgment of the learned Subordinate Judge'' is set-aside and the matter is remitted back to the

Subordinate Judge, Balasore, to re-dispose of the matter bearing in mind amended provisions of the CPC and following the procedure as required

under the amended provision. This appeal is accordingly allowed. There will, however, be no order as to costs.

Appeal allowed.