IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2027 of 2018
Decided On: 31.08.2018
Kailashchandra Kedarmalji Vs. Kochaveedu Varghese Joseph and Ors.
S.B. Shukre, J.
Citation: 2019(1) MHLJ 662
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. The petitioner is a decree holder who has obtained a decree of eviction against the original defendant/judgment debtor respondent No. 1. The petitioner had filed a Special Civil Suit No. 517/1995 under Section 6 of the Specific Relief Act claiming a decree of possession against the respondent No. 1 The suit was dismissed by the Civil Court, but it was decreed by the High Court exercising its revisional jurisdiction on the revision application being Revision No. 51/2007 on 7.12.2011. This decree passed by the High Court was challenged by the respondent No. 1/judgment debtor by filing a Special Leave Petition being Special Leave Petition (C) No. 7313/2012. The Hon’ble Apex Court dismissed the Special Leave Petition on 20.10.2013 thereby confirming the decree of possession passed in favour of the petitioner by the High Court.
5. As the proceedings were pending before the Civil Court and the High Court, the respondent No. 1 filed another civil suit being Special Civil Suit No. 621/2012 praying for a decree of specific performance of the contract against the petitioner. It was submitted that there was an agreement executed by the petitioner in favour of the respondent No. 1 to sell the suit property to him and although the respondent No. 1 was ready and willing to perform his part of the contract, the petitioner failed to do so. This civil suit was ultimately dismissed by the Civil Court as it was barred by limitation. It appears that dismissal of the suit has not been challenged by the respondent No. 1 and the decree of dismissal has attained finality.
6. After the rights and duties of the petitioner and the respondent No. 1 were settled finally in the aforestated proceeding, it was expected of the respondent No. 1 to abide by the decree. But, that was not to be. The petitioner was required to file execution proceeding against the respondent No. 1. During the pendency of the execution proceeding, respondent No. 2, who claims to be brother of the original judgment debtor i.e. respondent No. 1 suddenly appeared and filed an objection under Order 21 Rule 97 of the Civil Procedure Code seeking to obstruct the execution of the decree till determination of his right and interest in respect of the suit property. This objection application was marked as Exh.-45. In this application, respondent No. 2 claimed that he was in possession of the suit premises since about more than 20 years before filing of the application, the application was filed on 6.7.2017, and that he was running from there his business under the name and style as “Airtech Marketing” in order to earn his livelihood. He also submitted that a licence to that effect was issued by the competent authority under the Shops and Establishment Act. His further contention was that he was inducted into the suit property by the decree holder i.e. petitioner himself.
7. The objection application was vehemently opposed by the petitioner. However, it is seen from the paper book that no reply was filed by the respondent No. 1 to this application and it appears that he did not put up any resistance to this application.
8. Nothing transpired significantly before the executing Court after filing of Exh.-45 objection application. Respondent No. 2 then filed one more application, Exh.-65, praying for, inter alia, framing of appropriate issue so that proper adjudication could be made in terms of the provisions of Order 21 Rules 97 and 101 of the Code of Civil Procedure. This application was also resisted by the petitioner. However, the application was allowed by the executing Court by its order passed on 20th February, 2018. It is this order which is now under challenge in the present writ petition.
9. Shri S.C. Mehadia, learned counsel for the petitioner submits that only intention with which application vide Exh.-45 has been filed by the respondent No. 2 is to delay the execution of the decree and that the original judgment debtor i.e. respondent No. 1 is in collusion with respondent No. 2. He submits that the respondent No. 2 is the brother of respondent No. 1 and he also admits that he has been carrying on business under the name and style as ‘Airtech Marketing’ from the suit property with the consent of his brother, the judgment debtor and therefore, it does not appeal to reason that he would not know anything about the civil proceedings that were going on between the petitioner and the respondent No. 1 and the decree of eviction passed against the respondent No. 1 in which, it has been conclusively held that the respondent No. 1 was in illegal possession of the suit property and was therefore, liable to be evicted therefrom. This decree, which has been confirmed by the Hon’ble Supreme Court, nowhere mentions or makes any reference to the respondent No. 2 being in possession of the suit property or even carrying on any business from the suit property along with respondent No. 1, so submits learned counsel for the petitioner. He submits that there is really no dispute which could be determined by a Civil Court between the petitioner and the respondent No. 2 and that respondent no. 2 is a total stranger to the decree being executed now.
10. Nobody appears for respondent No. 1 though duly served with the notice for final disposal.
11. Shri R.S. Renu, learned counsel appearing for the respondent No. 2 submits that it is well settled law that when a dispute is raised as contemplated under Order 21 Rule 97 CPC, it is required to be adjudicated upon in accordance with Order 21 Rules 97 and 101 CPC and that would necessarily mean that an issue in that regard is framed and parties are given an opportunity to lead evidence. In support of his submission, learned counsel has invited my attention to the provisions of Rules 97 and 101 of Order 21 CPC and paragraph 345 Chapter 21 of the Civil Manual.
12. Learned counsel for the respondent No. 2 further submits that respondent No. 2 has consistently taken a uniform stand right from the beginning and this stand would show that it were respondent No. 2 who was in possession of the suit property along with respondent No. 1 and was also paying regularly rent, as tenant, to the petitioner and, therefore, unless the right and interest of the respondent No. 2 in the suit property are determined in accordance with law, the decree is not liable to be executed.
13. Learned counsel for respondent No. 2 further submits that relations between the respondent No. 2 and his brother respondent No. 1 being not cordial, the respondent No. 1 never informed respondent No. 2 of the civil proceeding pending between the petitioner and the respondent No. 1 and, therefore, there is no question of any collusion between him and the respondent No. 1. He also submits that even otherwise, when the plea of fraud or collusion is taken, the plea is required to be adjudicated upon as a question of fact and this would not be possible unless appropriate issues are framed. He relies upon the view taken in this regard by the learned Single Judge of the Punjab and Haryana High Court in the case of Subhash Chander and another vs. Smt. Phoolwati and others, Judgment delivered in ESA No. 15/2009, decided on 30th April, 2009.
14. As regards the proposition that when a dispute referable to Rule 97 Order 21 CPC is raised, it must be adjudicated upon in accordance with the procedure prescribed under Rule 101 Order 21 read with paragraph 345 Chapter 21 of the Civil Manual, there is no dispute. It is also well settled law that for deciding such a dispute, it is not necessary that a separate civil suit should be filed, rather such a dispute, as prescribed by Rule 101, is required to be adjudicated upon in the pending execution proceedings themselves and not by a separate civil suit. But, the question is whether any dispute as contemplated under Rule 97 Order 21 has been raised by a party, in the present case such party is respondent No. 2, or not. This would have to be first decided by considering the pleas of the parties and the surrounding facts and circumstances of the case.
15. I have already discussed as to how the decree passed for eviction against the respondent No. 1 came to be confirmed by the Hon’ble Supreme Court. This decree was passed in Special Civil Suit No. 517/1995. In the written statement filed by the respondent No. 1 in this suit, the respondent No. 1 asserted that the possession of the suit property was handed over to him by the petitioner himself. He did not refer to his joint possession of the suit property along with his brother. The High Court found that the plea that the possession of the suit property was handed over by the petitioner to the respondent No. 1 as groundless and further found that the respondent No. 1 had obtained possession of the suit property forcibly and, therefore, allowing the revision application, decreed the suit that was filed under Section 6 of the Specific Relief Act. This decree as stated earlier, was confirmed by the Hon’ble Apex Court.
16. So, the rights and obligations of the parties in the present case have been crystallized by a decree which has attained its finality. The right to seek possession of the suit property from the respondent No. 1 has now stood vested in the petitioner, the decree holder and this right now cannot be scuttled or obstructed by anybody who is stranger to the decree. Of course, a limited right to protect possession of the suit property has also been given under Order 21 Rule 97 CPC to any person who claims to be in possession and till such right is decided, the protection is required to be extended to such an obstructer. But, in order to assert such a right, such other person, in the present case respondent No. 2, would be required to demonstrate his prima facie case in the matter. He is required to place before the executing Court some material on the basis of which, the executing Court could record its satisfaction that a dispute as contemplated under Order 21 Rule 97 CPC has been raised and such dispute would require an adjudication as mandated by Rule 101, Order 21 read with paragraph 345 Chapter 21 of the Civil Manual.
17. In the present case, although the respondent No. 2 submits that he was put into possession of the suit property by the petitioner himself and he also averred that he carried on his business under the name and style as ‘Airtech Marketing’ from the suit property with the consent of his brother i.e. respondent No. 1. But, the discussion made earlier would show that this was never the case of the respondent No. 1. His case was that he was put into possession of the suit property by the petitioner himself and that he does not refer to his brother also being in possession along with him of the suit property. It was, therefore, required of the respondent No. 2 to place on record some material from which it could be said that there is prima facie substance in the contention of the respondent No. 2 about his being placed into possession by the petitioner. No such material has been placed on record, however, by the respondent No. 2. In the absence of any such material, the contention that the respondent No. 2 is entitled to secure protection of his possession till his right to remain in the property is decided cannot be said to be giving rise to any dispute as contemplated under Order 21 Rule 97 CPC. It is also the submission of the respondent No. 2 that his relations with his brother were not cordial and, therefore, he was not informed by his brother about the ongoing civil proceeding between his brother and the petitioner. But, this submission of the respondent No. 2 goes against his own pleading which is to be effect that he carried on his business from the suit property with the consent of his brother. If the relations between two brothers were not cordial, such consent, as contended by the respondent No. 2, would never have been there.
18. Although it is submitted by the learned counsel for the petitioner that there is a collusion between the respondent No. 1 and 2 which is evident from the respondent No. 1 not filing his reply to the objection application, I beg to differ with him. Just because no reply has been filed by the respondent No. 1 to the said application, it could not be said that he is also acting hand in glove with respondent No. 2. There could be several reasons for not filing of the reply and collusion is just one of them. Unless and until the possibility of presence of other reasons is not ruled out, no conclusion even in a prima facie manner regarding collusion between the parties can be made. Therefore, at this juncture, I do not think that any assistance could be sought by the learned counsel for the respondent No. 2 from the judgment of the learned Single Judge of Punjab and Haryana High Court delivered in Subhash Chander (supra) case.
19. One thing which appears significant to my mind and which is required to be mentioned here is that the respondent No. 1 inspite of having suffered a decree of eviction from the suit property on the finding that he is in illegal possession of the suit property, has remained silent all through out in the matter and this silence can be interpreted to mean that the respondent No. 1 does not wish to put up any resistance to the execution of the decree itself. If he had nurtured any such wish, the respondent No. 1 would have come forward and said something after the objection application was filed by the respondent No. 2. But, he has not done so. So, the position obtaining now is that the respondent No. 1 does not actively resist execution proceeding and it is respondent No. 2 who is raising an objection to execution of decree on the ground that he is in possession. But, there is nothing on record even to hint at such a possibility. If this is so, respondent No. 2 becomes a stranger to the whole execution proceeding and would have no right to seek any adjudication in respect of the objection, a fanciful objection, raised by him. Such an objection has to be rejected as frivolous made with a view to prolong the execution of the decree. Ultimately, the law wishes that the decree holder is able to enjoy the fruits of the decree once the decree becomes final and as soon as possible. The law also requires the executing Court to adopt a careful approach so that the settled rights of the decree holder are protected and frivolous attempts made to endanger those rights are thrown out. This is a case, which would be governed by these principles of law. However, these principles of law, it appears, have not been considered for their application to the facts of the case and the result is that of patent illegality committed by the executing Court in passing the impugned order. Such an order cannot be sustained in the eye of law.
20. In the result, writ petition is allowed.
21. Impugned order is quashed and set aside.
22. Objection application vide Exh.-45 stands rejected. No costs.