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2004 Supreme(Kar) 549
Karnataka High Court
Judges : K.Sreedhar Rao
RANGASWAMY - Appellant
Versus
T.A.PRABHAKAR - Respondent
R. F. A. 815 Of 1999
Decided On : 09/17/2004
Advocates Appeared :
S.RAJU, S.V.SHASTRI
The provisions of Order 21 Rule 97 to 105 are exhaustive and cover disputes regarding title or independent individual interest. An order passed under Rule 98 or 100 is specifically declared as a decree with finality and provision for appeal.
Headnote:
Eviction - Non-residential premise - Order 21 Rule 97, Order 21 Rule 99, Order 23 Rule 1, Section 2(2) of CPC - The court discussed the applicability of Order 21 Rule 97 and Rule 99 of CPC, the option to file a separate suit, and the definition of a decree under Section 2(2) of CPC. The court emphasized that the provisions of Order 21 Rule 97 to 105 are exhaustive and cover disputes regarding title or independent individual interest, and that an order passed under Rule 98 or 100 is specifically declared as a decree with finality and provision for appeal. The court held that the appellant, having abandoned the proceedings under Order 21 Rule 97 of CPC, was not entitled to file a separate suit in view of the bar under Rule 101. The court also granted a decree in favor of the appellant for damages.
Fact of the Case:
The first respondent obtained a decree for eviction against the third respondent in respect of a non-residential premise. The appellant claimed to have sub-let the premises from the third respondent and filed an application for restoration of possession. The suit filed by the appellant was dismissed as not maintainable since he had invoked the remedy under Order 21 Rule 96 and 97 of CPC.
Finding of the Court:
The court found that the appellant, having abandoned the proceedings under Order 21 Rule 97 of CPC, was not entitled to file a separate suit in view of the bar under Rule 101. The court also granted a decree in favor of the appellant for damages.
Issues: The issues involved the applicability of Order 21 Rule 97 and Rule 99 of CPC, the option to file a separate suit, and the definition of a decree under Section 2(2) of CPC.
Ratio Decidendi: The provisions of Order 21 Rule 97 to 105 are exhaustive and cover disputes regarding title or independent individual interest. An order passed under Rule 98 or 100 is specifically declared as a decree with finality and provision for appeal. The appellant, having abandoned the proceedings under Order 21 Rule 97 of CPC, was not entitled to file a separate suit in view of the bar under Rule 101.
Final Decision: The court granted a decree in favor of the appellant for damages.
( 1 ) THE first respondent-owner obtained a decree for eviction against the third respondent in respect of a non-residential premise in HRC No. 1487/95. The eviction order in Ex. Case No. 1924/1996 is executed on 17. 7. 1996 and possession taken. The appellant contends that the third respondent has sub-let the premises to him and that he has been paying rents to the first Respondent. Thereby, the first Respondent has recognised the independent tenancy rights of the appellant. The appellant is not a party to the decree for eviction in HRC No. 1487/95, as such the eviction of appellant by the decree is bad in law. The appellant setting up the above plea filed an application under Order 21 rule 97 of CPC, for restoration of possession in EP No. 1924/96 filed by the first Respondent.
( 2 ) BEFORE the Execution Court in EP No. 1924/96, the appellant and the first respondent have let in oral evidence. It appears at the stage of arguments, the appellant filed an affidavit to withdraw the application on the ground that he has filed a comprehensive suit in O. S. No. 10054/1997 regarding the same subject matter for the similar relief. The executing Court dismissed the application filed under Order 21 rule 96 and 97 of CPC. , at the request of the appellant.
( 3 ) THE suit in O. S. No. 10054/1997 is dismissed on the ground as not maintainable since the appellant-plaintiff had invoked the remedy under order 21 Rule 96 and 97 of CPC. , and that a separate suit is not maintainable.
( 4 ) IT is pertinent to note that the application under Order 21 Rule 97 of cpc. , was filed on 17. 7. 1996. The suit OS No. 10054/ 1997 in question is filed on 16. 9. 1997 that is, subsequent to the application under Order 21 Rule 97 of CPC. The appellant had not made any requests for withdrawal of the application under Order 21 Rule 97 of cpc. , with a liberty to pursue the remedy by way of suit as envisaged under Order 23 Rule 1 of CPC. ,
( 5 ) THE decision of the Supreme Court reported in the case of N. S. S. Narayana Sarma And Ors. V. Goldstone Exports (P) Ltd. , And Ors. , it is held that the claim of the obstructor has to be adjudicated by the executing Court under Order 21 Rule 97 or Rule 99 of CPC. , and not by a separate suit.
( 6 ) THE full bench of this Court in the case of V. K. RAMA SETTY v. A. GOPINATH, has made the following observation in para 10 as follows:-"10. We are of the view that keeping in view the language employed in Order XXI, Rule 99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under Rule 99 the use of word "may" gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from preferring a suit for possession completely. It will be for him to choose either of the two forums. This explains the observation of the Division Bench. The Division Bench had not pronounced that even if an aggrieved person prefers an application under Rule 99, then still he will have a right to file a separate suit as well. We are clearly of the opinion that drawing of any such inference is a misreading of the judgment of the Division Bench since such an inference will be in the death of Rule 101 of Order 21, C. RC. and therefore the same cannot be held to be a good law, if at all it was intended to be so laid down. We do not find it necessary to record any detailed reasoning of our own on the said aspect since in our opinion, the issue is now finally concluded by the judgment of the Supreme Court in the case of NOORDUDDIN v. DR. K. L. ANAND,
( 7 ) THE Learned Counsel for the appellant Sri S. V. Shastri strenuously contended that the order of dismissal made by the executing Court is only a summary dismissal and not an adjudication of the case on merits to attract the embargo of denial of right of failing a separa
