Appeal No.247 of 1996,Chamber Summons No.1060 of 1994,Suit No.2434 of 1994

7th October, 2005

Petitioner Counsel: Mr. S. H. DOCTOR,Mr. D. R. MEHTA,/s. Dhruva Liladhar & Company
Respondent Counsel: Mr. VIJAY MEHTA

Cases Cited:
Mukund Bapu Jadhav Vs. Tanu Sakhu Pawar, A.I.R. 1933 Bombay 457 (FB) [Para 31]
Subhan B. Shaikh Noor Vs. Abdul Samad Haji Abdul Raheman, 1978 Mh.L.J. 519 [Para 31,63]
Babulal Vs. Hazarilal Kishori Lal, (1982)3 S.C.R. 94 [Para 31,41]
Silverline Forum Pvt. Ltd. Vs. Rajiv Trust, (1998)3 S.C.C. 723 [Para 32]
Bhanwar Lal Vs. Satyanarain, A.I.R. 1995 S.C. 358 : 1995(1) S.C.C. 6 [Para 35,55]
Krishna Tukaram Vs. Mahadeo Krishnaji, A.I.R. 1953 Bombay 227 [Para 35]
Krishna Kumar Khemka Vs. Grindlays Bank, A.I.R. 1991 S.C. 899 [Para 43]
Keshrimal Jivji Shah Vs. Bank of Maharashtra, 2004(3) ALL MR 214=2004(3) Mh.L.J. 893 [Para 44]
Satya Brata Biswal Vs. Kalyan Kumar Kisku, A.I.R. 1994 S.C. 1837 [Para 44]
Brahmadev Choudhary Vs. Rishikesh Prasad, A.I.R. 1997 S.C. 856 [Para 52,55]
A.I.R. 2004 S.C. 511 [Para 59]
(1998)3 S.C.C. 23 : A.I.R. 1998 S.C. 1827 [Para 60]
A.I.R. 2002 S.C. 3083 [Para 61]
(2004)1 S.C.C. 453 [Para 62]

JUDGMENT

S. C. DHARMADHIKARI, J.:- This appeal under Clause 15 of the Letters Patent read with Order XXI Rule 103 of the Code of Civil Procedure, 1908 is directed against the judgment and order of a learned Single Judge delivered on 18th January, 1996 by which the chamber summons taken out by first respondent-original plaintiff/ decree holder has been made absolute. This is one more instance proving that execution of a decree for possession is an uphill task. Even after Seventeen (17) years, the decree holder is unsuccessful in getting the fruits of the same.

2. When this appeal reached hearing on 13th September, 2005, at the request of the Advocate appearing for first respondent, we passed an order discharging M/s. Thakore Jariwala and Associates as Advocates for respondent No.1. The order was passed because the learned Advocate informed us that the first respondent who was present along with his son, desires that his son in whose favour power of attorney was duly executed by him should argue the matter. The son of first respondent Mr. Vijay Mehta handed over to us a copy of the power of attorney executed by the first respondent. We compared it with the original of the same.

3. On perusal of the said power of attorney, we were of the view that to avoid any complication, first respondent should file an affidavit not only recording the fact noted above but also his no objection to the matter being argued by his son. Accordingly, an affidavit has been filed by the first respondent in which he has stated that on account of his advanced age and problem of hearing, he desires that the matter be argued by his son Mr. Vijay Mehta and he would assist him. He has undertaken that he would stand by all submissions and arguments placed by his son and he confirms the same.

4. We called upon Mr. Doctor, learned Senior Counsel appearing for appellant as to whether considering these peculiar facts and circumstances, the power of attorney holder can make oral arguments or otherwise represent the first respondent before us. In all fairness, Mr.Doctor invited our attention to the relevant provisions in the Code of Civil Procedure, (C.P.C), Advocates Act, 1961 and Bombay High Court (O.S.) Rules and contended that in the absence of any prohibition therein and in the peculiar facts of this case, the Court should pass appropriate orders. In the light of above facts and considering the advanced age of first respondent, who is also a lawyer, we have permitted his son to make oral submissions. We clarify that this course of action shall not be construed as a precedent for future cases.

5. For appreciating rival contentions, brief reference to the facts is necessary. Chamber Summons No.1060 of 1994 was filed by respondent No.1 claiming principally the following relief :-

"(a) The Sheriff of Bombay and his office Bailiff deputed by him be ordered to execute the decree herein by removing the judgment debtor, the respondent or any other person or persons from the suit premises and property whatsoever and from the said Flat No.5, situate on the 1st floor of the building at Plot No.191, Road No.13, Jawahar Nagar Co-operative Society Limited, Goregaon (West), Bombay, even in the absence of the judgment debtors and the respondent and by taking forcible possession thereof from any person or persons found in the said property and suit premises and also by breaking open locks or locks found thereon in the presence of two panchas and with the help of police if necessary to handover the possession of the same to the plaintiff herein by executing the decree herein."

6. It is the case of first respondent that the above suit was instituted by him for specific performance of an agreement for sale dated 15th April 1985, which stood confirmed by a confirmation agreement dated 15th November, 1985. By this agreement the first respondent had agreed to purchase from respondent Nos.2 and 3 an immovable property i.e. land and Building situate at Plot Nos.191, Road No.13, Jawahar Nagar Co-operative Housing Society, Goregaon, Mumbai-400 062 (for short suit property). It is the case of plaintiff that he is Karta of a Hindu undivided family and original defendants were husband and wife. The agreement for sale recorded that the defendants are owners of the land and building constructed on the same and also flat Nos.1 and 3 on the ground floor admeasuring 500 sq. ft. each. First respondent agreed to purchase the entire property together with vacant possession of the above flats on the consideration mentioned in the agreement annexed as Exh.A to the plaint. (page 90 of Appeal Paper Book). It was agreed that consideration was payable to owners in part, firstly on execution of the agreement and further at the time of delivery of vacant possession of flat Nos.1 and 3. In other words, agreement records that land as well as building situate thereon constitutes suit property and the agreement was to sell the same at the consideration and on the terms and conditions mentioned therein. A reference is also made to the affidavit filed by the vendors incorporating appropriate declaration of ownership.

7. Respondent Nos.2 and 3 are hereinafter referred to as original defendants. The case of plaintiff is that by a letter dated 8th December, 1987, addressed to defendants, he expressed readiness and willingness to perform his part of the contract and called upon them to accept balance consideration under the said agreement. He further sought possession of the property on the terms set out in the agreement. It is his case that after receipt of this letter defendants sought time to complete their obligations in terms of the aforesaid agreement. Defendants stated in reply to this letter that they are searching for alternate premises and thereupon possession would be handed over as agreed and undertaken in the agreement.

8. Despite correspondence between parties, plaintiff's case is that defendants failed to comply with their obligations and that is how the aforesaid suit came to be instituted in this Court on 14th August, 1987 for specific performance.

9. It is not necessary to refer to the usual averments in the plaint and other reliefs save and except, prayer clause (a) which is at page 84 of paper book. The said prayer specifically seeks possession of the suit property as well as above mentioned flats.

10. In this suit, a decree on admission was passed in terms of prayer clause (a) of the plaint. In the minutes of the decree on admission, based upon which the decree came to be passed, Clauses III and IV are relevant. They read thus :-

"3. Defendants agree and undertake to the Court not to dispose of or create fresh tenancy rights and/or third party rights and/or any charge or encumbrance or obstruction whatsoever upon the said suit property more particularly described in the schedule Ex."A" to the plaint and more particularly on or in respect of Flat Nos.1 and 3 on the ground floor of the building on the said property at Plot No.191, Road No.13, at Jawahar Nagar Co-operative Housing Society Ltd., Goregaon, Bombay-400 062."

"4. Defendants agree and undertake to the Court to quit, vacate and hand over to the plaintiff the quiet, vacant and peaceful possession of the said flats Nos. 1 and 3 on or before 31st December, 1988."

11. In other words, a decree in the aforesaid terms came to be passed on 21st September, 1987.

12. The further case of plaintiff is that despite submitting to a decree in the aforesaid terms, the defendants violated the undertaking given to this Court. Defendants not only did not hand over vacant possession of flat Nos.1 and 3 as well as building but created fresh tenancies therein. The complaint of plaintiff was that despite decree being passed, original defendants did not take any steps to attorn tenancies in his favour. They did not inform the tenants to pay rent to the plaintiff in terms of the decree.

13. In the aforesaid circumstances, the plaintiff was left with no alternative but to initiate steps for execution and enforcement of decree passed by this Court. On 18th July, 1989 he requested Prothonotary and Senior Master to issue warrant of possession in respect of Flat Nos.1 and 3 and the building. On or about 15th December, 1989, original plaintiff got possession of flat No.1. Plaintiff intimated to tenants of the building on 7th May, 1991 about attornment of tenancies in his favour. On or about 24th February, 1992, plaintiff got possession of flat No.3. The plaintiff noticed that the appellant came to be inducted in Flat No.5 of the suit building by the original defendants and, therefore, took steps to amend the warrant of possession to include Flat No.5. In the mean while, the Appellant was informed about the decree in favour of the first respondent. This is some time in February, 1992. On 4th June, 1992, the warrant of possession was amended and other flats were added therein.

14. Original plaintiff also took out a contempt motion bearing No.438 of 1992 against original Defendants and the Appellant herein. On 7th August, 1992, another learned Single Judge of this Court (S. N. Variava, J., as His Lordship then was) passed an order on this motion and held that in terms of the decree and execution of the undertaking, the original defendants were duty bound to comply with the same and their conduct being contumacious, he convicted respondent No.2 herein for contempt. However, as far as the appellant before us is concerned, the learned Judge observed that in the limited jurisdiction that he is exercising, it is not possible to decide as to whether the appellant is innocent third party or having independent right, title and interest in his favour. In his view, this issue would have to be decided in appropriate proceedings, which would be instituted by first respondent.

15. It is in these circumstances that the first respondent applied for further amendment to the warrant of possession by obtaining a chamber order from Prothonotary and Senior Master of this Court.

16. The further case of plaintiff is that attempt to execute the warrant of possession insofar as Flat No.5 is concerned was resisted by the appellant before us. In other words, the appellant obstructed the plaintiff-decree holder from taking possession of flat No.5. The obstruction was on 15th September, 1992.

17. In the light of this obstruction, plaintiff - decree holder took out chamber summons No.839 of 1992. It is common ground that the said chamber summons contained similar prayers.

18. On 20th November, 1992, that chamber summons was adjourned for recording evidence. Thereafter, it was placed before this Court and the following order was passed :-

"... Accordingly, I allow the plaintiff to withdraw this chamber summons with a liberty to file a fresh chamber summons after first taking appropriate proceedings before a Court for amending the warrant of possession. The plaintiff must give previous notice of such application to any third party who is concerned or affected i.e. the respondent and/or the other tenants. There will be no order as to costs."

19. It is pertinent to note that this order was passed after recording the concession of plaintiff- decree holder's Advocate that it is doubtful as to whether the Prothonotary and Senior Master of this Court has power to amend the warrant of possession. Therefore, upon recording no objection of the appellant to the withdrawal, chamber summons No.839 of 1992 was disposed of as withdrawn with the aforesaid liberty. Later on, it was clarified that the word "Court" in the Order dated 20th November, 1992 would also include the Prothonotary and Senior Master, if the power is also conferred on him.

20. On 13th June, 1994, an attempt was made to once again get possession of the property by amending warrant of possession but a learned Single Judge of this Court declined to pass any order on the Judge's order taken out in that behalf.

21. In the aforesaid circumstances, a review petition was taken out in the earlier chamber summons which was placed before this Court (Variava, J., as His Lordship then was) and the learned Single Judge clarified that the words "before a Court" appearing in the last para of his order dated 25th April, 1994 would not preclude respondent No.1 - review petitioner from adopting appropriate proceedings before the Prothonotary if so advised. The learned Single Judge also clarified that the earlier order granted liberty to adopt appropriate proceedings and what proceedings are to be adopted and what application is to be made is for respondent No.1 - review petitioner to decide and the same undoubtedly would be decided on its own merits. Thus, the learned Single Judge clarified his earlier order. The order on the review petition is passed on 27th September, 1994.

22. After review petition was disposed of, present chamber summons was taken out on 26th October, 1994, with the relief and prayer reproduced hereinabove. After the pleadings were complete, this chamber summons was placed before a learned Single Judge (A. P. Shah, J.) and by the impugned order it has been made absolute. The order making chamber summons absolute and directing bailiff to execute the decree by removing the judgment debtors, the appellant who is respondent to the chamber summons or any other person from Flat No.5 by even breaking open the locks is impugned in the present appeal.

23. Mr. Doctor, learned Senior Counsel appearing for the appellant firstly contended that the chamber summons was hopelessly barred by limitation. His second submission is that the decree for specific performance passed by this Court in terms of prayers in the plaint does not in any way direct that first respondent should be placed in possession of Flat No.5. The factual position is that the building was not vacant but occupied by tenants. If vacant possession of the building is not to be handed over and the relief is only insofar as vacant possession of flat Nos.1 and 3, then, the executing Court could not have passed the impugned order and direction. In other words, according to Mr. Doctor, the decree as it stands has to be executed and nothing more can be added or granted by the executing Court. The agreement itself, proceeds on the basis that the property would be sold on "as is where is basis". He submits that Flat No.5 was never vacant. It was not vacant on the date of agreement, date of the suit and date of the decree. It was occupied prior to the appellant by one Mr. Ramaswamy.

24. Mr. Doctor invites our attention to the affidavit which is annexed as Exh.B to the agreement. He has taken us through the agreement as well as the averments and prayer clauses of the plaint. He submits that flat No.5 has not been mentioned in any of these documents. He submits that his contentions are supported even by the minutes of decree on admission.

25. Mr. Doctor submits that the agreement under which the appellant was inducted in Flat No.5 was entered into some time in November, 1989. Letter of attornment is of 7th May, 1991. The decree is much prior in point of time i.e. 1987. This being the position, according to Mr. Doctor, the impugned order travels beyond the decree passed by this Court and, therefore, deserves to be set aside.

26. Mr. Doctor then submitted that the learned Judge was in error in going into the issue of tenancy of the appellant in respect of the said flat. He submits that the executing Court has no power to decide the issue of tenancy of the subject flat. He submits that the agreement and decree are totally silent on the question of possession of Flat No.5. He submits that the learned Judge has proceeded on an erroneous basis that the decree for specific performance is in respect of the entire building and not restricted to a particular tenament. Once this basis is completely erroneous, then all further findings recorded in para 11 of the impugned order about the powers of court executing a decree for specific performance are also vitiated. He submits that the reliance placed by learned Judge on Section 55(1)(f) of Transfer of Property Act, 1882 is also misplaced. Mr. Doctor submits that the learned Judge could not have proceeded on the basis that the executing court can grant the prayer in the chamber summons by taking all such steps as are necessary in the facts and circumstances of the present case.

27. He submits that in this case there was no conveyance in favour of first respondent on the date when the tenancy was created in favour of the appellant. It is immaterial whether such tenancy is created in the face of the decree on admission. He submits that consequences of violation of the undertaking given by the original defendant - judgment debtor is an action in contempt which has already been initiated and concluded. In other words, violation of the undertaking given by original defendants - judgment debtors to this Court cannot be of any assistance to the original plaintiff - decree holder. He submits that this aspect is clear from a perusal of the order of this Court on the contempt notice of motion. In these circumstances, the violation of the undertaking by the original defendants would not authorise execution or enforcement of the decree in respect of flat No.5.

28. Mr. Doctor invites our attention to paras 13 and 14 of the impugned order and states that the finding of the learned Judge to the effect that filing of a suit for specific performance acts as lis pendens, is contrary to law. He invites our attention to section 52 of the Transfer of Property Act as amended and applicable to Mumbai. Further, he invites our attention to deletion of Order XXI, Rule 102 of the C.P.C. by a Bombay amendment. In the submission of Mr. Doctor even if the legal proposition set out in the aforesaid paragraphs is correct, the same is inapplicable to the case in hand because admittedly there is no lis pendens notice registered by the parties.

29. Since Mr. Doctor has laid great emphasis on the plea of limitation, it is necessary to note his submissions on this aspect in detail. Mr. Doctor submits that undisputed facts are that earlier chamber summons No.839 of 92 was taken out on 17th September, 1992 with identical prayers on account of obstruction and resistence to the execution of the decree by the appellant on 15th September, 1992. That chamber summons has admittedly been withdrawn on 24th/25th April, 1994. He submits that certified copy of the order passed on that chamber summons was applied for by the decree holder but that does not save time. Inviting our attention to sections 12 and 14 and Article 129 of the Limitation Act read with Order XXI, Rule 97 of the C.P.C., Mr. Doctor submits that the present chamber summons is traceable to Order XXI, Rule 97 alone. Once such an application is made, then, the period of limitation prescribed in that behalf has to be applied to it. In the instant case the obstruction by the appellant is on 15th September, 1992. The present chamber summons is taken out after disposal of the earlier chamber summons and much after the period of limitation prescribed i.e. 30 days, from the date of obstruction or resistence. The aforesaid provision is attracted and therefore, the chamber summons was ex-facie time barred. Neither filing of the review petition nor liberty granted to take out fresh chamber summons on withdrawal of the earlier chamber summons would be of any assistance. The period of limitation prescribed read with substantive provisions of Limitation Act being mandatory, the chamber summons ought to have been dismissed by the learned Single Judge on this ground alone.

30. He submits that assuming some period can be excluded while computing the period of limitation prescribed by law, neither is such exclusion of period pleaded nor necessary material in that behalf is placed before the learned single Judge. Assuming section 12 of Limitation Act applies, even then, the chamber summons was time barred being filed 33 days from the disposal of the earlier chamber summons. According to Mr. Doctor, the only course permissible in law is to make fresh attempt to execute or enforce the decree and if any obstruction or resistence is offered in the fresh attempt, then, it was open to the decree holder to approach this Court by invoking its jurisdiction under Order XXI, Rule 97, after the second attempt. However, admittedly, no amendment was made to the execution application, no fresh warrant of possession was obtained and no attempt was made after 15th September, 1992 to execute the decree. In these circumstances, the chamber summons was time barred. This point was squarely raised before the learned Single Judge and he has not recorded any finding in this behalf.

31. In support of his submissions, Mr. Doctor places reliance on the decision of this Court in the case of Mukund Bapu Jadhav Vs. Tanu Sakhu Pawar, reported in A.I.R. 1933 Bombay 457 (FB) and a subsequent decision in the case of Subhan B. Shaikh Noor Vs. Abdul Samad Haji Abdul Raheman reported in 1978 Mh.L.J. 519. Mr. Doctor also relies upon a decision of Supreme Court in the case of Babulal Vs. Hazarilal Kishori Lal & Ors., reported in (1982)3 S.C.R. 94 to buttress his submissions on enforceability of the decree for specific performance.

32. Mr. Doctor, in all fairness, has invited our attention to a later Supreme Court decision in the case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Anr., reported in (1998)3 S.C.C. 723. It is on interpretation of Order XXI, Rule 97 of C.P.C.

33. For the above reasons, according to Mr. Doctor, impugned order deserves to be quashed and set aside. In other words, he submits that the appeal be allowed.

34. On the other hand, respondent No.1 appearing through his power of attorney holder submits that the submissions insofar as chamber summons being time barred are wholly misconceived and untenable in law. Mr. Mehta, power of attorney holder contended that the chamber summons is invoking powers of the executing court under section 47 read with Order XXXII, Rule 35 of the C.P.C. and is thus not traceable to Order XXI, Rule 97 thereof. Once this aspect is properly appreciated, then, period of limitation prescribed for invoking the power under Order XXI, Rule 97 cannot apply. He submits that the admitted facts demonstrate that the appellant is representative of judgment debtor. Hence, section 47 would apply squarely. It is permissible for the decree holder to proceed to execute the decree for possession after warrant in that behalf is issued.

35. Alternatively, he submits that assuming that chamber summons is under Order XXI, Rule 97 of C.P.C. even then, it is clear that there is no question of it being time barred. Admittedly, the earlier chamber summons was not disposed of on merits. It was withdrawn under misconception of law. The present chamber summons is maintainable inasmuch as the obstruction caused earlier by the appellant had not been adjudicated on merits. Once, earlier chamber summons stood withdrawn without adjudication, with liberty granted to take out a fresh chamber summons, then validity of the obstruction caused in September, 1992 to the execution of the decree in question has to be gone into and a decision rendered one way or the other. Precisely, that is done in the present chamber summons, which is otherwise maintainable. Hence, it cannot be said to be barred by limitation or suffering from delay and laches. In fact, according to him, there is no question of a fresh chamber summons inasmuch as both chamber summons complain about same obstruction and withdrawal of the earlier chamber summons is thus of no consequence. In this behalf, he relies upon a decision in the case of Bhanwar Lal Vs. Satyanarain and Anr., reported in A.I.R. 1995 S.C. 358 and a decision of this Court (Krishna Tukaram Vs. Mahadeo Krishnaji) reported in A.I.R. 1953 Bombay 227.

36. It is contended further that in the present case, the conduct of the appellant is such that he has been raising obstacles and hurdles in execution of the decree passed way back in 1987. It is clear from the records that the decree grants specific performance of the agreement which is in relation to an immovable properly viz., the entire building and vacant possession of flat Nos.1 and 3. The building has to be handed over with the flats in question. That apart, the building was to be handed over, as clearly understood, with the existing tenants. In other words, with those occupants who were in possession as on the date of the agreement and in any event, the date of the suit. All further tenancies are, therefore, not at all binding upon the decree holder. In any event, once the decree records an undertaking regarding non-creation of fresh tenancies, then, induction of the appellant thereafter, being contrary to this undertaking is wholly illegal and void. No rights are created in favour of the appellant. His occupation is not at all lawful. The decree holder is not obliged to accept him. Hence, the warrant of possession was amended to incorporate vacant possession of flat No.5 which has been allowed and now the appellant must be thrown out of the premises. He submits that if such course is not adopted, then, the decree holder can never enjoy fruits of the decree. On the other hand by dilatory tactics and technical objections, the decree would be frustrated and defeated.

37. For all these reasons, he submits that the appeal be dismissed and the impugned order be upheld.

38. With the assistance of Mr. Doctor, and the power of attorney holder of respondent No.1, we have perused the plaint and the annexures thereto as well as the chamber summons and affidavits placed on record. We have also perused with their assistance the orders noted above. In the light of the rival contentions, the only question that arises for our consideration is whether the obstruction or resistence raised to the execution and enforcement of the decree passed by this Court deserves to be upheld or all pleas in that behalf, rejected, as has been done by the learned Single Judge.

39. For recording our findings and conclusions on the above question, firstly, it is necessary to note undisputed facts. They are these. The suit is claiming decree of specific performance of an agreement to sell immovable property. A decree is passed directing specific performance of the said agreement together with handing over possession of the suit property. It is worthwhile noting that the agreement provides for purchase of building together with land beneath the same and vacant possession of flat Nos.1 and 3. Thus, building consisting of flats together with land beneath has to be handed over and that is the mandate of the order and decree passed by this Court. That warrant of possession was issued on 18th April, 1989 to execute the decree passed on 21st September, 1987 is also not in dispute. It is further not in dispute that the appellant was inducted in the said flat after the earlier tenant Mr. Ramaswamy vacated the same. Thus, not only was the appellant inducted after the agreement and filing of the suit but admittedly, after decree passed by this Court. That decree records an undertaking of defendants/judgment debtors in the aforesaid terms is also undisputed. The undertaking is with some purpose and object inasmuch as when the building was to be handed over with the land beneath, the position emerging was that flat Nos.1 and 3 were vacant and other flats had existing tenants.

40. Parties understood the transaction as purchase of building with the existing tenants and vacant flats. That the tenancies of existing tenants were to be attorned in favour of the decree holder is also not in dispute. The intent and purpose thus is not to foist fresh tenants and occupants on the decree holder but to confer on him the title in respect of the property completely. Decree envisages vacant possession of two flats. This is how the undertaking was understood by parties to the suit is also not in dispute. That apart, the obligations undertaken by original defendants to this Court have been thus understood is clear from the order passed on the contempt notice of motion. Hence, we are unable to accept the contentions of Mr. Doctor that the decree does not confer any right in respect of flat No.5. If the decree passed by this Court is perused in the light of plaint averments as well as recitals of the agreement, then, a conclusion is inevitable that the land and the building was to be handed over together with vacant possession of flat Nos.1 and 3. The building was to be handed over with existing tenants and no fresh tenancies, atleast, after the decree was passed by this Court, were permitted. It is nobodys case that flat No.5 is not part of this building.

41. Equally, untenable is the submission that no right accrues to the decree holder to seek possession of this flat. Reliance by Mr. Doctor on the decision reported in 1982(3) SCR 94 (supra) in this context is not appropriate. In this case, it is clear that a decree on admission for specific performance against judgment debtors/vendors has been passed. Once such a decree is passed, then, it is the duty and obligation of the Court to assist the decree holder in execution and enforcement of the same by taking recourse to all powers conferred by law. It is well settled that this Court retains full powers even after passing of such a decree with an intent of monitoring complete and full enforcement of the same. Once nature of decree is thus understood, then, even if there is no specific prayer in that behalf, the court can place successful party in possession of immovable property. However, that aspect need not be gone into in any further details.

42. From a perusal of the record, we are satisfied that the decree is of specific performance and possession of the suit property. Such being the case, the learned Judge was right in concluding that the decree is in respect of entire building and not restricted to a particular tenament. In the facts and circumstances of the present case, the issue about the decree being silent with regard to relief of delivery of possession also does not arise because the finding and conclusion of the learned Judge is in consonance with the terms of the agreement and the schedule which describes the suit property. It is also in tune with the prayer clause of the plaint and the terms of the decree on admission.

43. In our view, in this case, the issue as to whether filing of a suit for specific performance would operate as lis pendens or not also need not be gone into and considered. The order passed by the learned Judge is on the basis that decree incorporates an undertaking to this Court that no fresh tenancy would be created and that no third party would be inducted in the suit premises. Admittedly, the decree is passed on 21st September, 1987. At that time, one Mr. Ramaswamy was in possession of flat No.5 as a tenant. Mr. Ramaswamy vacated this flat and the appellant has been inducted therein subsequent to the decree and the undertaking incorporated therein. It is conceded before the learned Single Judge and also before us that recording of such an undertaking, in effect, operates as injunction against judgment debtors restraining them from creating third party rights or transferring suit property. If the appellant is inducted in breach and in violation of the undertaking given to this Court, then no right is created in his favour and the so called tenancy is not binding upon the decree holder. It is the judgment debtors who have created this purported tenancy. That, consequent upon decree and undertaking incorporated therein, entering into such transaction confers no right on the appellant/third party is by now well settled. The learned Judge has made a reference to a decision of the Supreme Court in the case of Krishna Kumar Khemka Vs. Grindlays Bank, reported in A.I.R. 1991 S.C. 899.

44. A division bench of this Court to which one of us (Dharmadhikari, J., was a party) had an occasion to consider somewhat identical situation. The decision of the Division Bench is reported in 2004(3) Mh.L.J. 893 : (2004(3) ALL MR 214). Considering the law laid down by the Supreme Court to which reference has been made in the aforesaid division bench decision the argument of Mr. Doctor about rights of the decree holder, in this case, has to be turned down. The Division Bench after recording somewhat identical submissions in paras 13 to 15 of this judgment, observed as under :-

"23. To enable us to answer question No.1, it is necessary to refer to the decision of the Supreme Court in the case of Sujit Singh and Ors. Vs. Harbans Singh and Ors., reported in 1995(6) SCC 50 to which our attention has been invited by Shri. Kulkarni, learned Counsel for respondent No.1. In this decision the Supreme Court has observed thus :-

"4. As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered. That has instantly been done. It is per se property, for it relates to the immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees-respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All that is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the Courts below was, in our view, out of their bounds. Unhesitatingly, we upset all the three orders of the Courts below and reject the application of the assignees for impleadment under Order 22, Rule 10, Civil Procedure Code"."

"24. We cannot be unmindful and ignorant of the importance of this aspect, which has been repeatedly emphasised by the Supreme Court. We would be failing in our duty if, we do not abide by the ratio laid down in the aforesaid decision. That apart, in the case of Ramchandra Ganpat Shinde Vs. State of Maharashtra and Ors., reported in A.I.R. 1994 S.C. 1673 the Supreme Court in paras 12 and 13 has observed as under :-

"12. Mr. Justice Arthus, J. Venderbnilt in his "The Change of Law Reforms 1955" at pages 4 and 5 stated that:-

"It is the Courts and not in the legislature that our citizens primarily feel the keen, the cutting edge of the law. If they have respect for the work of their Courts, their respect for law will survive the shortcomings of every other branch of the Government; but if they lost their respect for the work of the Courts, their respect for the law and order will vanish with it to the great detriment of society"."

"13. Respect for law is one of the cardinal principles for an effective operation of the constitution, law and the popular Government. The faith of the people is the source and succour to invigorate justice intertwined with the efficacy of law. The principle of justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ehos of adjudication - be it judicial, quasi-judicial or judicial process would be disillusioned, if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the Court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the Courts and take recourse to extra-constitutional remedies which is a death-knell to the rule of law."

In the case of Satya Brata Biswal Vs. Kalyan Kumar Kisku and Ors., reported in A.I.R. 1994 S.C. 1837, while outlining the importance of rule of law, administration of justice and the role of Courts, the Supreme Court has observed:-

"29. Apart from the fact whether A. K. Ghosh had a legal authority to sub-lease or not it was not open to him to grant a sub-lease in violation of the order. It is no use contending as Mr. Chidambaram, learned Counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the Court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim: Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15-9-1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the Court to confer its blessings. It does not matter that to the contempt proceedings Simani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognised, how is status quo as of 15-9-1988 maintained? Hence, the grant of sub-lease contrary to the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal."

"25. In our view, therefore, if the facts in the present case are appreciated in the light of the decisions of the Supreme Court (Supra), it is clear that during the pendency of the order of injunction issued by this Court on 6th March, 1998, respondent No.2 has created sub-lease in favour of petitioners herein. It is of considerable significance that respondent No.2 to 4 did not appear either to oppose the O.A. or during the proceedings, initiated by petitioners herein. Their silence on the material aspect of violation of injunction order is eloquent enough. We cannot hold that conclusion of the Courts below to the effect that power to transfer the said property was subject to the injunction order issued by this Court is in any way vitiated by error of law or is in any way perverse. In the light of the decision of the Supreme Court, the transfer was clearly illegal if not void."

"26. We cannot accept Shri. Naphade's contention that observations of the Supreme Court in the case of Surjeet Singh should be read as restricted to proceedings under Order 22, Rule 10 of Civil Procedure Code and the same cannot be extended to defiance of injunction order issued under Order 39, Rule 1 of Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of law and administration of justice, then it is not possible to make the distinction or bifurcation suggested by Shri. Naphade. It would mean that consequences of nullifying such transaction not being provided by the Statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issued by a Court of law. It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout orders of Courts which is increasing day by day can never be curbed. The Court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would lose faith and respect completely if the Court does not curb and prevent this tendency. The note of caution of the Supreme court must be consistently at the back of everybodys mind. Therefore, Shri. Naphade is not right in the distinction which he is trying to make."

45. Therefore, it is not possible to accept the contention of Mr. Doctor that violation of undertaking to this Court makes no difference, as there is no conveyance in favour of the decree holder on the date of tenancy. In our view, it is of no consequence that conveyance came later on. Once the decree was passed and the appellant had been inducted subsequent to the same, then it is not open for the appellant to contend that no conveyance being executed, he cannot be removed from Flat No.5. For these very reasons, we are also unable to accept the plea that consequences of violation of the undertaking being action in contempt, the rights, if any, of the appellant remained intact, despite conviction of the judgment debtors in contempt proceedings. In our view, the consequences are that the transaction itself is wholly illegal. Hence, no right, title or interest is created in favour of the appellant in respect of flat No.5.

46. Lastly remains the issue of limitation. For considering the submissions on this aspect, a reference will have to be made to Article 129 of the Schedule to Limitation Act, 1963 which reads as under :-

Description of application	Period of limitation	Time from which period begins to run
For possession after removing resistance or obstruction to delivery of possession of immovable property decreed or sold in execution of a decree	Thirty days	The date of resistance or obstruction.

47. Section 3 of the Limitation Act in clearest terms states that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The provisions of section 5 which have been referred to in section 3(1) clearly state that extension of prescribed period can be only in cases other than applications under any of the provisions of Order XXI of the C.P.C. Our attention was also invited to sections 12 and 14 of the Limitation Act by Mr. Doctor. He contends that these provisions are not applicable in the facts and circumstances.

48. For proper consideration of the rival contentions of this issue, it is necessary to refer to certain provisions of the C.P.C., 1908. Order XXI, Rule 32 of the C.P.C. sets out the manner in which a decree for specific performance of a contract should be executed. Sub-Rule (5) of Order XXI, Rule 32 provides that where such a decree has not been obeyed, the Court may in lieu of or in addition to all or any of the process set out in Order XXI, Rule 32(1) to (4) direct that the act required to be done may be done sofar as directly by the decree holder or some other person appointed by the Court at the cost of the judgment debtor. Order XXI, Rule 35 sets out the manner of execution of decree for immovable property. Order XXI, Rule 35 reads as under :-

"O.XXI, R.35 :- Decree for immovable property :- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property;

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree;

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession."

A bare perusal of the said provision would indicate that wherever a decree is for delivery of any immovable property, possession of that property has to be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive the delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate the property. The other sub-rules of Order XXI, Rule 35 provide for the manner in which possession has to be taken and delivered. It also provides for a reasonable warning before breaking open any door or opening or removing any lock for putting the decree holder in possession.

49. Order 21, Rule 97 onwards contains provisions for dealing with resistance to delivery of possession to decree holder or purchaser. The said provisions provide for a contingency when the decree holder or purchaser dispossesses any person other than judgment debtor. In the present case, we are not concerned with this contingency. A bare perusal of Order XXI, Rule 97 would indicate that whenever holder of a decree for possession of immovable property or purchaser of any such property sold in execution of decree is resisted or obstructed by any person in obtaining possession of the property, he may make application to the court complaining of such resistence or obstruction. Thereupon, such application has to be adjudicated in accordance with the provisions following Order XXI, Rule 97. Order 21, Rule 98 together with Bombay Amendment provides for orders to be made on an application as above. The application either be allowed or dismissed or such other orders be passed which the circumstances necessitate and as the Court deems fit. The Court can, if it is satisfied that the resistence or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation on his behalf or by any transferee to whom the property has been transferred during the pendency of the suit or during execution proceedings, then the Court shall direct that applicant/decree holder be put in possession and if he is still resisted and obstructed in obtaining possession then, the Court has a discretion to order that judgment debtor or any other person acting at his instigation or on his behalf be detained in civil prison for 30 days.

50. Order XXI, Rule 101 provides for determination of question and it is couched in widest terms. It states that all questions including questions relating to right, title or interest in the property arising between parties to the proceedings 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. For this purpose, the Court is empowered notwithstanding anything contained to the contrary in any other law for the time being in force to decide the same.

51. It is not necessary to burden this judgment with reproduction of all the aforementioned rules and sub-rules including Bombay amendment because a cursory glance at them indicates that the provisions are made with the object of avoiding a prolonged litigation involving the decree holder or purchaser of an immovable property sold in execution of a decree. In other words, once a decree for possession of immovable property is passed, the enforcement and execution of such decree being duty of executing court, it must possess all ancillary and incidental powers including powers to decide and adjudicate upon questions relating to right, title and interest to the property, arising between parties to such applications. If wide powers had not been conferred upon the executing court, then, there was every likelihood of the decree for possession of immovable property being frustrated and defeated by endless and often unfruitful litigation. The decree holder would be entangled and engaged in prolonged litigation and face serious problems even after succeeding in getting the decree. The intent and purpose is to make comprehensive provisions so that nothing remains to be adjudicated and decided in relation to the decree any further. Prior to the amendment in 1976, the Legislature noted that the parties were required to file separate suits to deal with resistence and obstruction while executing the decree for possession of immovable property. Now, it is not necessary to file a separate suit and while taking cognisance of the execution application, the executing court would go into all such issues and record findings and conclusions either removing all obstacles and obstructions or upholding them. The provisions from Order XXI, Rule 97 to Rule 106 read together demonstrate that the orders post adjudication are treated as having the same force as decrees and are subject to appeals.

52. We have referred to the aforesaid provisions in details together with the object and purpose they sought to achieve only for appreciating the submissions of Mr. Doctor on the issue of limitation. In our view, the submissions overlook the very intent and purpose for which these provisions have been enacted. Mr. Doctor does not dispute that the appellant not being person bound by the decree but offering resistance and obstruction to the same, respondent No.1 had to resort to Order 21, Rule 97. In this case, admittedly, the chamber summons is invoking the power of this Court to remove the resistence/obstruction caused to the decree holder (respondent No.1). The word "any person" has been interpreted, after noticing the legislative intent by the Supreme Court in two decisions. First in point of time being Brahmadev Choudhary Vs. Rishikesh Prasad, reported in A.I.R. 1997 S.C. 856. That this word would include a stranger to the decree is what is observed in this decision. After setting out Order XXI, Rule 35, this is what the Supreme Court has observed :-

"A mere look at the aforesaid provision shows that warrant for possession can be straightway sought against persons occupying immovable property which is 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 noted that the warrant for possession could not be 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 XXI 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 such resistance was offered by him the proper procedure which was required to be followed by respondent No.1, decree holder was the one contemplated by Order XXI, Rule 97, CPC."

"On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28th April, 1991 the application moved by the respondent decree holder on 6th May, 1991 was necessarily to be one falling within the scope and ambit of Order XXI, Rule 97. 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. It is not in dispute between the parties that no decree for possession has been obtained by respondent No.1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words "any person" as found in Order XXI, Rule 97, Sub-rule (1). Consequently, it must be held that respondent No.1's application dated 6th May, 1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to by-pass the previous resistance and obstruction offered by the appellant on spot. Thus it was squarely covered by the sweep of Order XXI, Rule 97 sub-rule (1), CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order."

53. The Supreme Court after referring to the form appended to the CPC further observes :-

" ... It is, therefore, clear that in an application under Order XXI, Rule 97 moved by a decree holder who complains about the resistance or obstruction offered by any person to the decree holder in his attempt at obtaining possession of property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a lis arises between the decree-holder applicant under Order XXI, Rule 97 on the one hand and such obstructionist or resisting party on the other, to whom summons has been issued by the court as per form No.40. When such a lis arises, it has to be adjudicated upon as enjoined by Order XXI, Rule 97 sub-rule (2). The procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order XXI......"

" ... A conjoint reading of Order XXI, Rules 97, 98, 99 and 101 projects the following picture :-

"(1) If a decree holder, is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI, Rule 35, then, the decree holder has to move an application under Order XXI, Rule 97 for removal of such obstruction and after hearing the decree holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI, Rule 97 sub-rule (2) read with Order XXI, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI, Rule 98, sub-rule (2) and the decree holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree."

"(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI, Rule 98, sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order XXI, Rule 99 to be put in possession of the property or if his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI, Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order XXI, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI, Rule 101."

"5. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of 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 XXI, Rule 97 sub-rule(1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree."

".... Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree holder."

" ... Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI , Rule 99 and 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."

" ... On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree holder as well as to the obstructionist to have their respective say in the matter to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rule 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."

54. This decision is a complete answer to the submissions of Mr. Doctor inasmuch as it lays down a salutary principle which goes to the root of the matter. The Supreme Court observes that if resistence is offered and once the same is noted by executing court as well as by decree holder, then, it is not open for the court as well as the decree holder to by-pass Order XXI, Rule 97 and resort to eviction of the person/stranger with the help of police force by necessitating re-issuance of warrant of possession under Order XXI, Rule 35. We have reproduced the observations of the Supreme Court to re-emphasise the legal position and reiterated from time to time.

55. The facts in Brahmadev's case (supra) as well as an earlier decision referred to therein (1995(1) S.C.C. 6 = A.I.R. 1995 S.C. 358) are similar to the case at hand. (See paras 3, 4 and 5 of the same) In the case at hand the earlier chamber summons taken out immediately after the obstruction/resistence was admittedly within limitation. Admittedly, despite noticing the resistence and obstruction to the decree offered by the appellant herein, there has been no adjudication or enquiry into the same in the light of the several provisions referred to above. That chamber summons was taken up for consideration after two years but the Counsel, then appearing for decree holder, noticing some defect, withdrew the same with liberty to take out fresh chamber summons. Fresh chamber summons was taken out after withdrawal of the earlier one and that does not suffer by any inordinate delay and laches. Merely because earlier chamber summons was withdrawn and fresh summons was taken out by the decree holder, does not mean that the same was not maintainable without the decree holder again making an attempt to execute the decree. It is pertinent to note that the obstruction being noted by the Court, the grievances of the decree holder swaived for consideration. No investigation was made about the same. The fresh chamber summons was merely to correct a technical lacuna. The same grievance, however, continues and had to be investigated by the Court. This aspect becomes clear upon perusal of the orders passed by this Court. This Court was aware of its obligation to decide the matter on merits.

56. Mr. Doctor's submissions proceed on the footing that if the decree holder had been offered resistence again, then, it was open for him to take out fresh chamber summons. However, without any attempt being made of such nature, the fresh chamber summons was time barred and should have been dismissed on this ground alone.

57. We are unable to accept this submission. If the submissions of Mr. Doctor are to be accepted, then, the very purpose and object of inserting a complete code for resolving all disputes pertaining to execution of decree for possession would be defeated and set at naught. The very purpose of enacting such provisions is to protect the rule of law and reinforce faith of people at large and litigating public in particular in administration of justice. If a picture emerges that the court is not serious about removing obstructions and resistence to its orders and decrees, thereby driving litigants to resort to other means it would put an end to rule of law itself. Mr. Doctor's submissions apart from being hyper technical overlook this vital aspect. It is not as if the decree holder has been careless, negligent or has slept over the matter. The Court is not obliged to assist such litigants. Hence, in a given case, the Court may refuse to go into the legality and validity of an obstruction or resistance if the decree holder is guilty of the above.

58. The mandate of Order 21, Rules 97 to 105 being noted, it is clear that all procedural delays must be curtailed. Having noted the obstruction and resistence, the Court was duty bound to grant opportunity to both appellant and decree holder to make good their pleas on merits. It was obliged to record its satisfaction about the obstruction raised and resistence offered being either devoid of any merit or there is substance in the same. Precisely, this is done by the learned Single Judge in the instant case. Therefore, there is no substance in the contentions that fresh chamber summons should have been rejected as being time barred by limitation. The court has noted in this case the obstruction and the learned Judge has to consider all pleas raised in that behalf. There is no complaint that the learned Judge has denied opportunity to both sides to make good their respective cases. Having availed of the opportunity in law, the appellant cannot be heard to complain in the facts and circumstances of the present case that the chamber summons ought to have been dismissed on the ground of limitation.

59. The mandate of Order XXI, Rule 97 and the provisions following the same has been repeatedly noticed by the Supreme Court and the latest decision reported in that behalf is in A.I.R. 2004 S.C. 511.

60. In (1998)3 S.C.C. 23 = A.I.R. 1998 S.C. 1827 while reiterating the legislative mandate the Supreme Court has noted that persons armed with decrees for possession have been suffering endlessly because of procedural wrangles and obstruction. The Courts within their limitation have been interpreting procedural laws so as to conclude all possible disputes pertaining to decreetal property in execution proceedings. The amendments are aimed at including all such disputes under one set of procedural laws so that parties do not have to litigate by filing a fresh suit. After noticing this aspect, the Supreme Court observes thus :-

"3. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed."

61. The decision in Brahmadev's case has been noted and followed in A.I.R. 2002 S.C. 3083.

62. Submissions of Mr. Doctor miss another fundamental aspect of the matter, viz., that there is an inherent power in the Court which passes a decree to enforce and implement the same. In (2004)1 S.C.C. 453 the Supreme Court held thus :-

"Execution is the enforcement by the process of the Court of its orders and decrees. This is in furtherance of the inherent power of the Court to carry out its orders or decrees."

To say the least this power is coupled with duty. Otherwise it will result in negation of justice and Rule of law. Once the matter is placed on such pedestal, then it is not open for us to accept pleas of Mr. Doctor on the issue of limitation.

63. Thus, we have considered all the contentions raised and argued before us by parties. In the light of the conclusion reached by us, it is not necessary to make a detailed reference to the decision of Full Bench of this Court (supra) brought to our notice by Mr. Doctor. That decision being prior to the amendments to the C.P.C. as well as the law laid down interpreting the same, in our view, the same does not apply in the facts and circumstances of the present case. The decision of a Division Bench reported in 1978 Mh.L.J. 519 equally is of no assistance. Even otherwise, that decision was on the facts viz., second obstruction being noted, fresh application was necessitated. In the present case even after noticing the first obstruction, there was no adjudication as envisaged by the amended CPC. The law laid down therein, therefore, would have no application in the present facts and circumstances.

64. In the peculiar facts and circumstances of this case, we are of the opinion that order of the learned Judge does not suffer from any illegality or perversity and is, therefore, not required to be set aside by us in the Appellate Jurisdiction conferred by the Letters Patent and the Code of Civil Procedure, 1908.

65. For the reasons indicated above, we are of the view that the appellant was entitled to be evicted and the direction to so evict him issued by the learned Single Judge does not call for any interference. The appeal is therefore dismissed. However, in the circumstances, there shall be no order as to costs.

66. Coming to the cross objections, the only plea raised is that the learned Judge has not granted compensation at market rate for the wrongful possession and occupation by the appellant of the subject property. In our view, learned Judge was not exercising jurisdiction as contemplated by Order XX, Rule 12 of C.P.C., inasmuch as this is not an enquiry for determination of mesne profits. This is a case where the learned Judge was dealing with resistence or obstruction in executing decree for possession of immovable property and more particularly with an application under Order XXI, Rule 97 complaining about the same. His jurisdiction was circumscribed by this provision and the provisions following the same. While exercising such powers the learned Judge could have granted reasonable compensation and could not have commenced an enquiry at the instance of the decree holder into mesne profits, which is what the decree holder would want him to do. Even otherwise, there is no material placed before the learned Judge about prevailing market rate. Hence, the larger question whether reasonable compensation would mean prevailing market rate and not the rent payable per month need not be decided by us. The cross-objections also, therefore, fail. There shall be no orders as to costs in that behalf as well.

67. We, therefore, uphold the direction of the learned Judge insofar as payment of compensation by the appellant.

68. In the result, both appeal and cross-objections fail and stand dismissed. No costs.

69. After the judgment was pronounced, the learned Counsel for the appellant submits that the appellant should not be dis-possessed for a period of four weeks. Having regard to the facts and circumstances of the case, we direct that the appellant shall not be dispossessed for a period of four weeks from today. The Respondent, who is appearing in person, is not present.

Appeal dismissed.