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High Court Of Calcutta
Khwaja Mohammad Yusuf
DILIP NAG - Appellant
Versus
LILABATI GARAI - Respondent
C. O. 1958 Of 1989
Decided On : 12/03/1991
CIVIL PROCEDURE CODE - ORDER 21, RULE 97 - APPLICATION - ENQUIRY - SUMMARY - SCOPE - LIMITED - TITLE - QUESTION OF - CAN BE GONE INTO - DISCOVERY AND INSPECTION OF DOCUMENTS - HARDLY ANY SCOPE - ORDER REJECTING APPLICATION - JUSTIFIED.
Fact of the Case:
The petitioner, claiming to be in possession of the premises since 1947, challenged the execution of a decree for eviction obtained by the decree holder against a fictitious person, Kishore Das. The petitioner filed an application under Order 21 Rule 97 of the Code of Civil Procedure, contending that the court was obligated to determine the right, title, and interest of the resistor (petitioner) and that the enquiry under this rule would be treated as a trial in a suit. The petitioner sought discovery of documents and framing of issues prior to taking evidence for final disposal of the Misc. Case. The trial court dismissed the petitioner's application, holding that there was hardly any scope for discovery and inspection of documents in a proceeding under Order 21 Rule 97 read with Order 21 Rule 101 of C. P. C.
Finding of the Court:
The court held that the enquiry under Order 21 Rule 97 of the Code of Civil Procedure must be summary and the proceeding must be disposed of expeditiously, bearing in mind its scope and the limited question to be decided. The court further held that the executing court has full jurisdiction to decide all questions of right, title, or interest in the property, but this does not mean that the entire procedure de novo of a suit shall have to be followed.
Issues: 1. Whether an enquiry under Order 21 Rule 97 of the Code of Civil Procedure must be summary and disposed of expeditiously? 2. Whether the executing court has full jurisdiction to decide all questions of right, title, or interest in the property under Order 21 Rule 97? 3. Whether the entire procedure de novo of a suit must be followed in an application under Order 21 Rule 97?
Ratio Decidendi: 1. The court relied on the provisions of Order 21 Rules 97 to 106 of the Code of Civil Procedure, which relate to resistance of delivery of possession to decree holder or purchaser and dispossession by decree holder or purchaser. The court also relied on the decision of the Bombay High Court in Ganesh Narayan Kulkarni v. Ganesh Ramchandra Joshi, which held that the court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not. 2. The court relied on the provisions of Order 21 Rule 101, which states that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit. 3. The court held that the amendments made to the Code of Civil Procedure in 1976 did not change the nature and character of adjudication of an application under Rule 97. The court further held that Rule 101 clearly indicates that the executing court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing court has the force and effect and is subject to the same condition as to appeal as if it was a decree and a suit maintainable to challenge the order.
Final Decision: The court dismissed the revisional application and confirmed the order of the trial court rejecting the petitioner's application under Order 21 Rule 97 of the Code of Civil Procedure. The court directed the trial court to dispose of the application expeditiously and within a specified time frame.
( 1 ) THIS is a revisional application under section, 115 of the Code of Civil Procedure against order dated 4th July, 1989 passed by the Second Bench, City Civil Court, Calcutta in Misc. Case No. 912 of 1988 arising out of Execution Case No. 24 of 1987 from Ejectment Suit No. 426 of 1980. The,petitioner's case is that the Opposite Party/decree Holder has obtained a decree for eviction against one Kishore Das, a fictitious person, in the said ejectment suit in respect of the first floor of premises No. 1, Pratap Chatterjee Lane, Calcutta. The petitioner with other members of the family is residing in the said premises since 1947 and when the process server came for the execution of the decree passed in the ejectment suit, the petitioner's father resisted the execution of the decree. The Decree Holder/opposite Party immediately filed an application under Order 21 Rule 97 of the Code of Civil Procedure, the petitioner duly appeared in the Misc. Case and filed objection to the Decree Holder's application. The petitioner filed an application under section 151 of C. P. C. contending that in view of the 1976 Amendment of the C. P. C. while hearing an application under Order 21 Rule 97 the Court is under an obligation to determine the right, title and interest of the resistor which in this case is the petitioner. It was further contended in the application that the order which would be passed in the disposal of that application would be a decree and appealable, and the enquiry under this Rule will be treated as it was a trial in the suit and the procedure for trial of suit under the C. P. C. would be the procedure. The petitioner prayed for fixing up a date of discovery of documents and framing of issues prior to taking evidence for final disposal of the Misc. Case. The learned, Judge dismissed the petitioner's application by order dated 4th July, 1989 holding that there is 'hardly any scope for discovery and inspection of documents in a proceeding under Order 21 Rule 97 read with Order 21 Rule 101 of C. P. C. Against the aforesaid order the petitioner has come to the High Court.
( 2 ) MR. Goswami, the learned Advocate appearing for the petitioner, submitted that under Order 21 Rule 97 a regular procedure of suit must be adopted and the matter cannot be decided by summary procedure. In this connection he referred to (1978)2 Andhra Pradesh Law Journal 294 (335) and AIR 1978 Mad. 270 (M/s. Southern Steelmade and Alloys Ltd. v. B. M Steel; Madras ). He could not produce the A. P. L. J. The learned Advocate also referred to the notes of Mulla's and Sarkars' Code of Civil Procedure and submitted that as a decree is not against the father of the petitioner but the Judgment Debtor's personality is in dispute as such regular procedure of suit is required to be followed. He submitted that the matter may be referred to the larger Bench for settling the point.
( 3 ) MR. Roy Chowdhury, the learned Advocate appearing for the Decree Holder, submitted that the only procedure which is to be followed is as in Order 21 Rule 58 of the Code of Civil Procedure. He emphatically submitted that the proceedings applicable in Order 21 Rule 97 is not a proceeding as applicable in a suit and it need not be taken recourse of. In his contention the C. P. C. nowhere says that a procedure of suit as laid down in section 26 of C. P. C. onwards is to be followed, and must not be followed. He emphasised that pre-decree position cannot be invoked in this application at all but, other opportunities can be given to the petitioner.
( 4 ) THE Rules 97 to 106 of Order 21 of C. P. C. relate to resistance of delivery of possession to decree holder or purchaser and dispossession by decree holder or purchaser. On an application made under Rule 97 the Court shall proceed to adjudicate in accordance with the provisions contained strictly within the Rules mentioned therein. All questions arising out between the parties to a proceeding on an application under Ru
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