2001(1) ALL MR 608
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VIJAY DAGA, J.
Gaurihar Baburao Batane & Ors. Vs. Ashok Banudas Gajare & Anr.
Writ Petition No. 4951 of 1997,Civil Rev. Application No. 1168 of 1997
6th April, 2000
Petitioner Counsel: Shri S.G.DESHMUKH
Respondent Counsel: Shri B.P.APTE, Mrs.S.S.DESHPANDE, V.P. NAVARE
(A) Civil P.C. (1908), O.21, R.97 - Petition under - Locus to file - Complete stranger to decree holding decretal premises in his own right - Petition by such stranger - Maintainable.
1997 (3) SCC 694 - Rel.on. (Para 18)
(B) Civil P.C. (1908), O.21, Rr.101, 105 - Proceedings under - Nature of - Proceedings in nature of suit and must be tried as suit.
AIR 1984 BOM 357 - Rel. (Para 19)
(C) Civil P.C. (1908), O.21, R.101 - Execution proceedings - Jurisdiction - Valuation - Original jurisdiction of court shall continue to govern pecuniary jurisdiction of executing court - Such court has jurisdiction to decide all questions arising U/R. 101 irrespective of its jurisdiction.
Brahmdeo Choudhary vs. Rishikesh Prasad Jaiswal, 1997 (3) SCC 694 : 1997 (1) Mh. L.J. 817 [Para 18]
Nusserwanji E. Poonegar vs. Shirinbai F. Bhesania, AIR 1984 Bombay 357 : 1984 Mh.L.J. 356 [Para 19]
Kazi Syed Saifuddin vs. Kasturchand Abhayrajji Golchha, 1999(2) ALL MR 113=1999 (2) Mh.L.J. 675 [Para 20]
JUDGMENT :- The writ petition is filed at the instance of original plaintiff/decree holder and assignee of the plaintiff/decree holder and same is directed against the order dated 26th March 1997 passed below Exhibits 33 and 50 and order dated 29th August 1997 passed below Exhibit 73. Both the orders are passed in Regular Darkhast No.126 of 1996, by the Civil Judge, Junior Division, Karad upholding the contention of the objectionist respondent No.1 in writ petition.
2. The objections were filed by the objectionist respondent No.1, objector/third party to the execution of the decree. The said objections were treated as objections under order 21 rule 97 of the Code of Civil Procedure ("C.P.C." for short), marked Exh.33.
3. The application for amendment (Exh.50) was also moved by respondent No.1 to join him as party to the said execution proceedings, so as to amend the execution application marked as Exh.33, which was subsequently renumbered as Miscellaneous Civil Application No.10 of 1997.
4. The Civil Revision Application No.1168 was filed by the obstructionist to challenge the order dated 1st October 1997 whereunder the above executing Court rejected the application (Exh.80) filed by him pointing out to the Court that the subject matter was beyond the pecuniary jurisdiction of the executing Court and requested for transfer of the execution proceedings with his petition for objections (Exh.33) to the competent Court, namely, the Court of Civil Judge, Senior Division, Karad.
5. All the three orders referred to above arise out of the one and the same execution proceeding. The parties are same in both the proceedings. The issues are also more or less identical. As such, both the matters were ordered to be heard together vide order dated 28th November 1997. This single judgment will dispose of both the proceedings.
7. The petitioner No.1 by deed of mortgage, had mortgaged three properties in favour of one Shri Sakharam Tatya Todkar, father and predecessor-in-title of respondent No.2. The said Sakharam was then put in possession of the said properties as mortgagee. The petitioner No.1 since was in need of some money, sold two out of these three mortgaged properties to the said Sakharam Todkar sometime in the month of July 1958. The said mortgage in respect of third property viz. agricultural land bearing revised survey No.277/1B/1A (old survey No.585/1B/1) admeasuring about 27.5 gunthas, however, continued to remain with him. The said property has been referred to as the "suit property" in the present litigation.
8. The petitioner, on 5th May 1984, had filed a Regular Civil Suit No.186 of 1984 for redemption of the mortgage and for possession of the said property against respondent No.2 and the original mortgagee Sakharam Todkar. The suit was resisted by respondent No.2. However, the suit was decreed on 30th November 1989 and the trial Court directed redemption of the mortgage in favour of petitioner No.1 and further directed respondent No.2 to hand over possession of the suit property to petitioner No.1.
9. The petitioner No.1, on 29th September 1995, filed a Regular Darkhast No.126 of 1995 for execution of the decree. The executing Court on the same day, issued notices under order 21 rule 22 of C.P.C. to the judgment debtor - respondent No.2. The judgment debtor - respondent No.2, on 6th April 1996, filed his reply to the said notice. However, no objection to the execution of the decree was raised by him.
10. The petitioner No.1 during the pendency of the execution proceedings, sold the suit property to petitioner Nos.2 and 3 for a valuable consideration and executed a registered sale deed in their favour. The petitioner No.1, under the terms of the deed of sale also assigned his rights under the decree in favour of petitioner Nos.2 and 3. In pursuance of the said sale deed, petitioner Nos.2 and 3, on 22nd March 1996, claiming right, title and interest in the suit property moved an application (Exh.18) under order 21 rule 16 of C.P.C. for getting themselves substituted in place of petitioner No.1. The executing Court by an order dated 30th March 1996 allowed the said application (Exh.18). The names of petitioner Nos.2 and 3 were, accordingly, brought on record in the execution proceedings substituting the name of petitioner No.1. Thus, petitioner Nos.2 and 3 stepped into the shoes of petitioner No.1.
11. In view of order dated 20th March 1996, passed by the executing Court below Exh.24, executed the deed of redemption of mortgage in favour of the petitioners and presented the same for registration on the same day before the concerned Registrar.
12. Before I proceed to deal with the rival contentions raised by respective parties in support of their case, it would be necessary to note few introductory facts giving rise to the Writ Petition No.4951 of 1997.
FACTS LEADING TO WRIT PETITION NO.4951/1997 WITH RIVAL CONTENTIONS:
13. The respondent No.1, on 3rd June 1996, had filed an application (Exh.33) purportedly under order 21 rule 97 of C.P.C. The respondent No.1 in the said application, inter alia, contended that he had purchased 24 gunthas of land out of the suit property from respondent No.2 - judgment debtor on 19th September 1998 for a valuable consideration of Rs.2,00,000/-. The respondent No.1 further contended that on the same day he was put in possession of the suit property by respondent No.2 and since then he is in possession of the suit property in his own rights. He also contended that a decree passed in Regular Civil Suit No.186 of 1984 is not binding on him being he was not party to the suit and that he had become full owner of the suit property much prior to the date of the decree. The respondent No.1 also prayed for dismissal of the execution proceedings and prayed for interim stay of execution during the pendency of the said application.
14. The respondent No.1, on 8th December 1996, moved another application for impleading himself as party/opponent in the pending execution proceedings. The said application was opposed to by the petitioners. However, by order dated 26th March 1997 (Exh.50), the executing Court allowed the said application holding that respondent No.1 being the obstructionist has substantive right to object to the execution of the said decree and that he has right to invoke the jurisdiction of the executing Court under order 21 rule 97 of C.P.C. The executing Court further allowed the application (Exh.73) for amendment moved under order 6 rule 17 of C.P.C. so as to get his petition under order 21 rule 97 of C.P.C. All these orders are the subject matter of challenge in the above writ petition.
FACTS LEADING TO CIVIL REVISION APPLICATION (C.R.A.) NO.1168 OF 1997 WITH RIVAL CONTENTIONS:
15. In the above C.R.A. the applicant obstructionist had moved an application (Exh.80) pointing out to the Court that after order dated 26th March 1997, he was allowed to bring certain additional material on record for adjudication of the rights of the applicant involved in the suit property valued at Rs.4,84,000/-. It was therefore contended that the Court of Civil Judge, Junior Division cannot be said to be the Court of competent jurisdiction and, thus, prayed for transfer of the execution proceedings to the Court of Civil Judge, Senior Division being a competent Court. This application led to a letter dated 2nd September 1997, wherein the Civil Judge, Junior Division, Karad, sought direction from the District Judge, Satara in this behalf. The District Judge, Satara vide his letter dated 9th September 1997 did not issue any directions but observed that the applicant herein be asked to file a separate suit.
16. The applicant, in the aforesaid backdrop, insisted for hearing of his application (Exh.80) and prayed for decision on merits. The Civil Judge, Junior Division after hearing the parties to the execution proceedings, by order dated 1st October 1997, rejected the said application holding that he has jurisdiction to entertain, try and decide the application under order 21 rule 97 of C.P.C. being the executing Court. Aggrieved by the said order, the applicant/objector has preferred this revision application invoking the revisional jurisdiction of this Court.
(1) Whether the petitioner who claimed to be a stranger occupying the decretal premises and who has offered resistance to the execution of the decree, can maintain petition under order 21 rule 97 of C.P.C.?
(2) Whether the order permitting amendment to the petition under order 21 rule 97 of C.P.C. was legal and valid?
(3) Is it necessary to have a valuation of the suit property, in respect of which, right, title and interest is claimed in the proceedings on an application under order 21 rule 97 of C.P.C. or 99 of C.P.C.?
(4) Whether in the facts and circumstances of the case, the Civil Judge, Junior Division has jurisdiction to entertain and try the objections in respect of the suit property, the valuation of which, according to the objector, exceeds the pecuniary jurisdiction of the executing Court?
18. The question sought to be raised is no longer open for debate. The Apex Court in the case of Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal 1997 (3) SCC 694 = 1997 (1) Mh.L.J. 817, while considering a question as to 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 request the executing Court to adjudicate upon his resistance and obstruction without being instance for prior delivery of possession before moving an application under order 21 rule 97 of C.P.C. It is held in paragraph-9:
"9. In short the aforesaid statutory provisions of order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing Court as well as by the decree holder the remedy available to the decree holder against such an obstructionist is only under order 21 rule 97 of sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under order 21 rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under order 21 rule 97. ..."
In view of the aforesaid findings and the law being well settled, the application or the objections Exh.33 preferred by the petitioner in the writ petition was well within the four corners of the said provision. The executing Court rightly entertained the petition under order 21 rule 97 of C.P.C. and no fault can be found with the impugned order.
19. Once it is held that the application under order 21 rule 97 was maintainable, then the said proceedings under rule 101 and rule 105 of order 21 of C.P.C. are in the nature of suit and it would be necessary for the executing Court to try the same as a suit. The provisions with which we are concerned have been order 21 rules 99 to 105 of C.P.C. It is not necessary to deal with the same in details, but suffice it to make a reference to it, which is material for the purpose. Rule 101 of order 21 of C.P.C. reads:
"101. Question to be determined - All questions. - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
Considering the scope of this rule, Jahagirdar, J. observed in Nusserwanji E. Poonegar and others v. Shirinbai F. Bhesania and others AIR 1984 Bombay 357 = 1984 Mh.L.J. 356 as under :
" ... There is substance in the contention of Mr. Rane that the proceedings under Rule 101 of Order XXI of the Civil Procedure Code are in the nature of a suit. Issues must be framed, the attention of the parties must be focussed upon the points which are to be decided, evidence must be allowed to be led and documents should be allowed to be produced and relied upon. The adjudication under Rule 101 cannot be made on the basis of affidavits alone unless the parties themselves so desire. Substantial questions including the questions of title to immovable property of high value are very often involved even in execution proceedings of the type with which we are concerned. Rule 103 of Order XXI of the Civil Procedure Code specifically mentions that the order passed in the said adjudication proceedings shall have the same force and be subject to the same conditions as to the appeal or otherwise as if it were a decree is appealable. An order passed after such adjudication will also act as res judicata. Considering all these aspects one must agree that the proceedings are in the nature of a suit and should be conducted in an appropriate manner. Rule 105 of Order XXI only broadly prescribes the outline of the procedure which the Court has to follow."
20. The question sought to be raised is also no longer open for legal debate in view of the settled position of law that once the suit is valued and the jurisdiction of the Court though determined at the stage when the suit is instituted, shall be the valuation for the subsequent proceedings in the suit also. Obviously, the execution being subsequent proceedings, the original valuation of the suit shall only govern the jurisdiction of the executing Court.
At this juncture, it will be useful to refer to the decision of Full Bench of this Court in Kazi Syed Saifuddin v. Kasturchand Abhayrajji Golchha 1999 (2) Mh.L.J. 675 : (1999(2) ALL MR 113) wherein the Full Bench ruled that valuation of appeal will be governed by the valuation put for the relevant relief at the time when the suit was filed. The quantum of mesne profits as decreed will not determine the forum. Thus, in my view, the original valuation of the suit will govern the jurisdiction of the execution Court and it is not at all necessary to put fresh valuation.
21. Apart from the above, the powers given to the executing Court under rule 101 are not qualified or hedged by any restrictions. On the other hand, it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule. Considering the scope of the jurisdiction of the executing Court to try all questions under the aforesaid rule, Jahagirdar, J. observed in Nusserwanji E. Poonegar and others v. Shirinbai F. Bhesania and others (supra) as under :
" A careful reading of the aforesaid Rule also shows that the Legislature was fully aware of the existence of the special Courts. That is why it mentions "for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." If the legislature by amending Rules 99 to 105 did not intend to give the plenary powers to the executing Courts then the aforesaid clause could not have been inserted. The language of Rule 101 must lead to the inevitable conclusion that the legislature being fully aware of the existence of the special Courts decided to carve out some area out of the exclusive jurisdiction of he special Courts and give it to the executing Courts."
22. Having recorded the aforesaid findings on issue No.3, in that event it is clear that no valuation of the property, which is a subject matter of the objection under order 21 rule 97, is required to be done. Consequently, it was not necessary for the executing Court to send the execution case to any other Court and the executing Court was entitled to proceed with the execution. Therefore, the order passed by the trial Court cannot be faulted.
The executing Court is directed to hear and decide the objections as expeditiously as possible, preferably, within six months from the date of receipt of writ from this Court.
It is further directed that the interim order passed by this Court in the above writ petition dated 9th February 1999 will continue to operate during the pendency of the investigation of objections by the executing Court and 15 days after the decision thereof. The interim order passed in civil revision application stands vacated.
In the facts and circumstances, there shall be no order as to costs.