IMPORTANT POINT
Language of Rule 104 Order 21 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule 101or 103.

Headnote:Code of Civil Procedure, 1908 – Rule 104 of Order 21, Rule 101 – Appellant, original owner of suit property along with the building erected thereupon, allegedly took a loan of Rs.50,000/- from husband of respondent No.1 and under the guise of security for loan appellant was made to execute a conveyance in respect of the suit property in favour of the respondent No.1 – Appellants case that on the same day his wife was also made to sign on a blank paper, which was later on converted into a Rent Deed – Suit filed by respondent No.1, for recovery of suit property on strength of conveyance executed in her favour, was decreed – Appeal preferred thereagainst by appellant before High Court – During the pendency of appeal, respondent No.1 filed eviction petition against wife of appellant on ground of default in payment of rent for the suit building since August, 1989 – Said Rent Control Petition dismissed by Rent Control Court on the ground that title in relation to building was in dispute in OS No.239 of 1990 – Appeal, filed by respondent No.1 – Allowed by Appellate Authority ordering eviction- Revision petition there against by wife of appellant – Dismissed by High Court whereby the title of the appellant in respect of the suit property was upheld and the order passed in rent petition was affirmed – Since the arrears were not paid within the stipulated time, the respondent No.1 filed Execution Proceedings seeking the appellant’s eviction and delivery of possession of suit premises – Suit filed by appellant to for an injunction to prevent the eviction of the appellant in Execution Proceedings – Since prayer for injunction was allowed, respondent challenged same before High Court – High Court, held that injunction granted by Trial Court in favour of the appellant herein was highly irregular and deserved to be set aside – Appeal – Plea that since suit filed by appellant was pending on the date when the order under Rule 97 and Rule 98 was made and would, therefore, be subject to the provisions of Rule 104 and would have to await the outcome of the suit for specific performance filed by the appellant – Held suit filed by appellant for specific performance of contract was considerably later in point of time than the commencement of the execution proceedings and, in any event, the language of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of proceeding in which orders were made under Rule 101 or 103 – Since the appellant’s suit was filed long after the commencement of the execution proceedings, the provisions of Rule 104 of Order 21 of the Code held not applicable to instant case – Appeal dismissed. (Paras 14 to 17)
       Facts of the Case :
       Issue in consideration in present case was regarding interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to Rule 101.
       Findings of the Court :
       Held suit filed by appellant for specific performance of contract was considerably later in point of time than the commencement of the execution proceedings and, in any event, the language of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of proceeding in which orders were made under Rule 101 or 103. Since the appellant’s suit was filed long after the commencement of the execution proceedings, the provisions of Rule 104 of Order 21 of the Code was held not applicable to instant case.
       Result : Appeal dismissed.

Judgment

Altamas Kabir, J. —

1.Leave granted.

2.An interesting question regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to Rule 101 thereof has been raised by Mr. M.K.S. Menon, learned counsel for the appellant. In Order to appreciate his submissions, it is necessary to briefly set out the facts of the case giving rise to such question.

3.The appellant, who was the original owner of the suit property along with the building erected thereupon, allegedly took a loan of Rs.50,000/- from the husband of the respondent No.1 and under the guise of security for the loan the appellant was made to execute a conveyance in respect of the suit property measuring 88 cents in favour of the respondent No.1 on 1st October, 1986. According to the appellant, on the same day his wife was also made to sign on a blank paper, which was later on converted into a Rent Deed. It also appears that on account of another loan taken by the appellant from the Syndicate Bank, OS No.176 of 1982 was instituted by the Bank against the appellant for recovery of the amounts due, before the Subordinate Court, Thalasherry, in which the suit property was attached.

4.In 1990, OS 239 of 1990, filed by the respondent No.1 before the Subordinate Court, Thalasherry, for recovery of the suit property on the strength of the conveyance executed in her favour, was decreed. An appeal was preferred therefrom by the appellant before the High Court, being AS No.609 of 1992, and during the pendency of the appeal, the respondent No.1 filed RCP No. 292 of 1993 against the wife of the appellant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, on the ground of default in payment of rent for the suit building since August, 1989. An additional ground was also taken by the respondent No. 1 claiming that the building was also required by her for her own use and occupation.

5.The said Rent Control Petition was dismissed by the Rent Control Court on the ground that the title in relation to the building was in dispute in OS No.239 of 1990. An appeal, being RCA No. 197 of 1994, filed by the respondent No.1 before the Rent Control Appellate Authority from the Order of the Rent Control Court, was allowed and eviction was Ordered. The wife of the appellant thereupon filed a revision petition before the High Court, being CRP No.2532 of 1996, which was dismissed on 2nd April 2004, by a common Judgment delivered in AS No.609 of 1992 and CRP No. 2532 of 1996, whereby the title of the appellant in respect of the suit property was upheld and the Order passed in RCA No.197 of 1994 was confirmed. The appellant’s wife was given two months’ time to pay the arrears of rent, failing which the respondent was given leave to take steps for execution of the Order. Since the arrears were not paid within the stipulated time, the respondent No.1 filed Execution Proceedings No.407 of 2004 seeking the appellant’s eviction and delivery of possession of the suit premises. The appellant’s wife entered appearance before the Executing Court, which Ordered delivery of possession of the suit premises to the respondent on 2nd April, 2005. Since such delivery was resisted by the appellant, the Court Ordered delivery to be effected with Police help on 18th July, 2005. Thereafter, attempts were made to settle the matter and the respondent also agreed to withdraw the execution proceedings unconditionally. According to the appellant, although, the respondent had agreed to withdraw the execution proceedings, the same was never withdrawn, which compelled the appellant to file OS No. 181 of 2005 and also for an injunction to prevent the eviction of the appellant in Execution Proceedings No.497 of 2004 in RCP No.292 of 1993. Inasmuch as, such prayer for injunction was allowed by the learned Subordinate Judge, the respondent challenged the same before the High Court.

6.On behalf of the respondent herein, who was the appellant before the High Court,

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Judicial Analysis

SupremeToday

2008 Supreme(SC) 1498

2008(7) Supreme 161SUPREME COURT OF INDIAAltamas Kabir and Markandey Katju, JJ.Vaniyankandy Bhaskaran — AppellantversusMooliyil Padinhjarekandy Sheela — RespondentCivil Appeal No. 6103 of 2008@ S.L.P. (C) No. 1823 of 2007Decided on : 14-10-08

IMPORTANT POINTLanguage of Rule 104 Order 21 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule 101or 103.

Judicial Analysis

2008(7) Supreme 161
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
Vaniyankandy Bhaskaran — Appellant
versus
Mooliyil Padinhjarekandy Sheela — Respondent
Civil Appeal No. 6103 of 2008
@ S.L.P. (C) No. 1823 of 2007
Decided on : 14-10-08

IMPORTANT POINT
Language of Rule 104 Order 21 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule 101or 103.