1. Decree for possession — Execution proceedings — Obstruction by third party claiming independent tenancy under Order 21 Rule 97, Code of Civil Procedure. (Para 3 )
Back
Next 
1996 Supreme(SC) 804
1996(3) Supreme 739
SUPREME COURT OF INDIA
Kuldip Singh and Faizan Uddin, JJ.
Kazi Akeel Ahmed -Appellant
versus
Ibrahim & Anr. -Respondents
Civil Appeal No. 7151 of 1996
(Arising out of SLP (C) No. 4478 of 1993)
Decided on 17-4-1996
IMPORTANT POINT
Where a person s suit claiming tenancy right in suit shop was dismissed then his application resisting exemption under Order 21 Rule 97 CPC is without merits and no further enquiry or investigation into same claim is required.
Headnote:Civil Procedure Code, 1908-Order 21 Rule 97-Decree for possession of suit shop against predecessor-in-interest of respondent No. 1-Execution-Application resisting execution by respondent No. 2 claiming independent tenancy right in suit shop-Civil suit for declaration and injunction making same claim by respondent No. 2 was dismissed-Respondent No. 2 had failed to produce any evidence to prove that he was holding shop as a tenant-No further enquiry or investigation is required into his application resisting execution. (Para 8)
Legal Category Hierarchy
Table of Contents
2. Appellant contends the objector's claim of tenancy is fictitious, as evidenced by the dismissal of a separate suit for declaration of tenancy. (Para 7 )
3. An enquiry under Order 21 Rule 97 is unnecessary and futile if a separate civil suit based on the same claim has been dismissed. (Para 8 )
4. Where a third party's claim of independent right is dismissed in a competent civil suit, further enquiry under Order 21 Rule 97 CPC is redundant. (Para 8 )
5. Appeal allowed — Application under Order 21 Rule 97 rejected — Possession of property directed to be delivered to the decree-holder. (Para 9 )
6. Does every application under Order 21 Rule 97 CPC require a full investigation?
Generally, Order 21 Rule 97 contemplates an investigation into the claim in accordance with Rule 98 and subsequent rules. However, such an enquiry may be dispensed with if the claim is found to be futile based on other judicial findings. (Para 8 )
7. What is the effect of a dismissed civil suit for declaration of tenancy on execution proceedings under Order 21 Rule 97 CPC?
If a party resisting execution files a separate civil suit for declaration of the same right and that suit is dismissed for lack of evidence, the court may reject the obstruction application as the claim is deemed fictitious and without foundation. (Para 8 )
JUDGMENT
Faizan Uddin, J.-Leave granted.
2. This appeal under Article 136 of the Constitution of India has been directed against the order dated November 24, 1992 passed by the High Court of Rajasthan, Jaipur Bench, dismissing the appellant s Civil Revision Petition No. 720 of 1990, arising out of an order dated August 24, 1990 passed by the Executing Court (Additional Munsif and Judicial Magistrate No. 2), Jaipur City, Jaipur, in Execution Case No. 24 of 1981.
3. The shop in question belonging to the appellant was let out to one Hafiz Abdul Samad. The appellant obtained a decree for possession of the shop in question on July 12, 1971, against Hafiz Abdul Samad, the predecessor-in-interest of respondent No. 1 herein. The appellant filed Execution of the said decree for possession which was dismissed in default on August 4, 1978, Consequently, the appellant moved another application on May 6, 1981 for execution of the decree with an application for police aid. The Executing Court by its order dated November 15, 1981 issued warrant of eviction with police help. The respondent No. 2 Girraj resisted the execution of warrant for possession and made an application before the Executing Court under order 21 rule 97 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the "Code") claiming himself to be the tenant of the appellant. The Executing Court directed an enquiry into the said application of respondent No.2. The appellant approached the High Court in Revision challenging the said order of the Executing Court directing an enquiry into the application of objector/respondent No. 2. The High Court by its order dated February 26, 1985 disposed of the revision with the observation that if the person resisting the execution of decree had any right or interest independent of the judgment-debtor he will have a right to obstruct or resist the execution of decree in accordance with the provisions of order 21 rule 97 of the Code and in that event an enquiry would be made.
4. Thereafter the respondent No. 2 Girraj instituted a Civil Suit on August 16, 1985, being Civil Suit No. 539 of 1985, for injunction and declaration to the effect that he was occupying the shop in question as a tenant of the appellant and, therefore, he could not be dispossessed from the shop in question in execution of decree against the predecessor-in-interest of respondent No. 1. He also made an application for grant of temporary injunction. The Civil Court found no prima facie case in favour of respondent No. 2 and, therefore, rejected his application for temporary injunction. An appeal against the said order was dismissed by the Additional District Judge and the said order was maintained in Revision by the High Court.
5. Thereafter, the appellant filed a fresh application for issuance of warrant of possession with police help. The Executing Court rejected the said application on August 24, 1990. The appellant approached the High Court in revision which was also dismissed by the impugned order dated November 24, 1992, affirming the order of the Executing Court with regard to the determination of right of the respondent No. 2 in the disputed shop against which this appeal has been preferred.
6. A notice was issued by this Court to the respondents. The respondent No. 1 did not appear though served with notice. The respondent No. 2 Girraj refused to accept, the notice and did not appear on the date of hearing of this appeal.
7. The learned counsel appearing for the appellant submitted that the decree for possession was passed in favour of the appellant as far back as July 12, 1991, but the same could not be executed even to this day due to the resistance and obstruction by the respondent No. 2, Girraj without any just or a reasonable cause. He submitted that there is absolutely no merit or any substance in the false and fictitious claim of respondent No. 2 Girraj that he is a tenant in the shop in his own right independently of respondent No.
