The provisions of Order 21, Rule 101 of the CPC do not bar a suit for a declaration of tenancy if the decree holder has not made an application under Order 21, Rule 97 of the CPC complaining of resistance or obstruction by the tenant.

JUDGMENT - R.A. JAHAGIRDAR, J.:---One Gajanan Gadekar was the original owner of a property bearing No. 1030 and situated at Old Modikhana, Pune No. 1. One Antoni Nicolas was the tenant in the suit property. Suit No. 2004 of 1970 was filed by the said Gadekar against the tenant for possession of the premises tenanted by the latter on several grounds. That suit was dismissed on 15th December, 1971 in so far as it related to possession. Thereafter the said Gadekar preferred an appeal, being Civil Appeal No. 206 of 1972, which was allowed by the Appeal Court of Pune by its judgment and order dated 7th October, 1972. Against the decision of the Appeal Court, the tenant preferred a petition, being Special Civil Application No. 290 of 1973, to this Court. During the pendency of this petition in this Court both Gadekar and Antoni expired and their legal representatives were brought on record. Ultimately the writ petition was dismissed by this Court on 12th February, 1979.

2. In the meantime, a darkhast application, being Regular Darkhast No. 185 of 1973, was made for the execution of the decree which had been passed by the Appeal Court in Civil Appeal No. 206 of 1972. However, the execution was stayed pending the disposal of the writ petition by this Court. Thereafter the decree was sought to be executed and it has been mentioned that on 21st July, 1979 the bailiff has reported that there was obstruction by the women folk and, therefore, he required the assistance of a lady police constable. It has also been mentioned that the 6th respondent in this petition has filed an application at Exh. 17 in the darkhast proceedings contending that execution proceedings cannot be taken against him because he was in possession of the premises. It is admitted before me and it has not been shown to the courts below to be otherwise that after this application at Exh. 17 was filed by the 6th respondent in this petition another application under Order 21, Rule 97 was filed by the petitioner who are the legal representatives of Gadekar and, therefore, the present decree-holders.

3. Respondent No. 6 himself filed a suit, being Suit No. 1703 of 1979, in the Court of Small Causes at Pune, for a declaration that he is the tenant of the premises, being one of the legal representatives of the deceased Antoni, and having not been impleaded in the earlier proceedings after the death of Antoni. In that suit he had filed an application for ad interim injunction which was granted by the trial Court but after hearing the parties that ad interim injunction was vacated by its judgment and order dated 8th October, 1979. In the appeal preferred by the 6th respondent, being Misc. Appeal No. 317 of 1979, the Appeal Court reversed this order of the trial Court and directed issue of interim injunction till the disposal of the suit by its judgment and order dated 9th February, 1981. It has not been shown that this order was subsequently challenged in this Court. That is, however, not material for the disposal of the question of law and jurisdiction which .has

been neatly raised before me by Mr. Wagh, the learned Advocate appearing for the petitioners, in the circumstances to be mentioned hereinafter.

4. In the suit which has thus been filed by the 6th respondent the petitioners, who are decree-holders, filed an application at Exh. 41 contending that the suit is not maintainable on account of the provisions contained in Order 21, Rule 101 of the Code of Civil Procedure. According to the petitioners, all questions arising between the parties in an application under Rule 97 or Rule 99 of the Code must be decided under Rule 101 of Order 21 and cannot be agitated by a separate suit. The learned trial Judge has given several reasons for rejecting this application at Exh. 41. He was

somewhat impressed by the fact that the learned Joint Judge while deciding Civil Appeal No. 317 of 1973 could have as well decided this questi

Click Here to Read the rest of this document