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1982 Supreme(Bom) 249
IN THE HIGH COURT OF BOMBAY
Rege D.M. J.
Jogindersingh Ravail Singh .... Petitioner.
Versus
Sitavanti Avtarsingh Bhasin ... Respondent.
Writ Petition No. 566 of 1982 decided on 17–09-1982.
Advocate Appeared:
For petitioner-Divyakant C. Mehta.
For respondent-B. .D. Mirchandani.
The court must follow the procedure prescribed in the Code of Civil Procedure, 1908, for dealing with obstructionist notices, including issuing notice to the obstructionist and determining all questions, including those of title, at the hearing of the application.
Headnote:
EXECUTION OF DECREE - OBSTRUCTIONIST NOTICE - ORDER 21, RULES 97, 101 AND 105 OF THE CODE OF CIVIL PROCEDURE, 1908 - PROCEDURE FOR DEALING WITH OBSTRUCTIONIST NOTICES - COURT'S JURISDICTION TO DETERMINE QUESTIONS RELATING TO RIGHT, TITLE AND INTEREST IN THE PROPERTY - MANDATORY PROVISIONS - IGNORING OR BYPASSING THE PROVISIONS - INVALIDITY OF ORDERS PASSED WITHOUT NOTICE TO THE OBSTRUCTIONIST.
Fact of the Case:
Petitioner challenged the order of the Appellate Bench of the Court of Small Causes, Bombay, dismissing his appeal against the order of the single Judge of the Court of Small Causes, Bombay, ordering the execution of the decree for eviction to proceed on the respondent's application.
Finding of the Court:
The court found that the lower courts had completely overlooked the mandatory provisions of the Civil Procedure Code, which required the court to issue notice to the obstructionist and determine all questions, including those of title, at the hearing of the obstructionist application.
Issues: 1. Whether the lower courts erred in passing the orders without issuing notice to the petitioner, the obstructionist? 2. Whether the Appellate Bench erred in holding that the petitioner had no title without even hearing him?
Ratio Decidendi: The court held that the provisions of Order 21, Rules 97, 101, and 105 of the Code of Civil Procedure, 1908, were mandatory and that the lower courts had erred in ignoring and bypassing them. The court further held that the Appellate Bench had erred in holding that the petitioner had no title without even hearing him.
Final Decision: The court made the rule absolute in terms of prayer (b) of the petition and directed the respondent to pay the petitioner's costs of the petition.
2. It is the contention of the learned counsel for the petitioner that the Court had passed the said order without giving him any notice of the same and without complying with the procedure laid down in the Code of Civil Procedure for execution of the decree.
3. Respondent and his Advocate have remained absent. However, this order is being passed after hearing the learned counsel for the petitioner on merit and after considering the material on record.
4. For appreciating the said contention of the learned counsel for the petitioner, certain undisputed facts may be stated at the outset. The litigation relates to a room No. 1 in building No. 736 T. P. S. Plot No.111, Bandra, Bombay. Some time in 1967 respondent who is the owner of the said premises filed a suit in the Court of Small Causes at Bombay, being suit No. 3114 of 1967 for eviction and possession of the said premises from the tenant one Prithipal singh (hereinafter called the defendant) amongst others on the grounds (1) that the structure was required for demolition and for reconstruction of a building thereon under section 13(1)(h)(h) of the Rent Act and (2) that the defendant had acquired suitable accommodation. On 24th February 1976, the Court passed a decree for eviction and possession in favour of the respondent-plaintiff. Defendant's appeal being Appeal No. 301 of 1978 to the Appellate Bench of that Court against the said judgment and order was summarily rejected on 11–1-1977. Against the said order of the Appellate Bench defendant filed Writ Petition being Writ Petition No. 486 of 1977 which came to be dismissed for default. An application to restore the same was also rejected.
5. The plaintiff thereafter made to the trial Court an application for execution of the decree against the defendant. At the time of the execution of the decree, the defendant was not found in possession but the son of the petitioner one Dr. Balbirsingh Suri obstructed stating that his father who had gone out and was not in the premises at that time was a licensee in the premises since 1956. Obstruction was noted and thereupon the respondent took out obstructionist notice being No. 2 of 1981 in the said Suit R. A. E. No. 3114 of 1967 against the petitioner's said son. At the hearing of the obstructionist notice petitioner's son Dr. Balbirsingh stated that he did not claim any independent right to the premises and had obstructed on behalf of his father. The Court therefore by its order dated 22–6-1981 made the said notice absolute.
6. In the meantime the petitioner filed a substantive suit on title being R. A. E. Suit No. 1221 of 1981 on 11–3-1981 and in that suit he made an application for interim injunction restraining the respondent from executing the decree. On 11–3-1981, itself, the Court granted an ad-interim injunction and on 10–8-1981 made the said injunction notice absolute. Against that order respondent appealed to the Appellate Bench of the Small Causes Court. Before the Appeal was admitted he also filed in this Court a Writ Petition being Writ Petition No. 3286 of 1981 without disclosing the fact of having already filed an appeal against the said order in the Court of Small Causes. On 12–10–1981 the respondent obtained in the said petition an order of ad-interim stay of the order of interim injunction granted by the lower Court. Against the said order of ad-interim stay, the petitioner preferred a Letters Patent Appeal being L. P. A. No. 164 of 1981 which was admitted on 16–10–1981. However, on the application for interim stay of the order of ad-interim stay granted by this Court in Writ Petition no order came to be made. T
