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1995 Supreme(Guj) 272
Gujarat High Court
Judgename :Y.B.BHATT
KESARBEN DHULAJI PRAJAPATI - Appellant
Versus
AMARSINGH BALDEVSINGH chauhan - Respondent
Civil Revision 653 of 1991
Decided On : 06/30/1995
Headnote:(a) Civil Procedure Code, 1908 - Eviction decree - Execution of - Petitioner entered litigation by offering obstruction to execution of warrant of possession - She is obstructionist, stranger and intermeddler - No right title or interest in suit property - Malafides of behaviour adversely commented upon lower Courts - Held, inter-meddler cannot be permitted to raise question of executability of decree.The petitioner has entered the litigation forcibly by offering obstruction to the execution of the warrant for possession. She is, therefore, not merely an obstructionist and a stranger, but also an inter-meddler. In fact when both the courts have observed that she has absolutely no right, title or interest in the suit property, and when both the courts below have adversely commented upon the malafides of her behaviour, conduct and contentions raised, they have in fact branded the petitioner as an intermeddler. Such a person cannot be permitted, in law or in fact, to raise the question of executability of the decree. [Para 18](b) Civil Procedure Code, 1908 - Eviction decree - Execution of - No locus standi of petitioner to question possession warrant - Held, she can not even indirectly question executability of decree.Obviously, the impugned order have been passed since the petitioner has been found to have no status in law to resist the possession warrant. Under the circumstances, the petitioner is found not to have any locus to question the possession warrant. Whether such a petitioner can, even indirectly, question the executability of the decree is a question which must be answered in the negative.
[Para 19](c) Civil Procedure Code, 1908 - Order 21, Rule 97 - Execution of decree - Right of obstructionist - Held, obstructionist has right to prtect possession by showing legitimate, legal and better right to possession than decree holder.The extent of the right is commensurate with the status of the obstructionist viz. as an opponent in the application of the decree holder under Order 21 Rule 97. His only right is a right to protect his possession by showing a legitimate, legal and better right to possession than the decree holder. Secondly, the only objection such an opponent can raise or which would be permissible would be such as would enable him to protect his possession, and such objection must have a direct nexus with the possession sought to be protected. Such a right would not extend to challenging the decree under execution, on any ground whatsoever, at least in proceedings under Order 21, Rule 97.[Para 20]
( 1 ) THE present revision has been filed by the petitioner who is the original obstructionist in execution proceedings and the appellant in the lower appellate Court. The first respondent herein, viz. , Amarsingh Baldevsingh Chauhan, was a decree-holder who died during the pendency of the appeal before the lower court and came to be represented by Laxmansingh Baldevsingh Chauhan. Respondent nos. 2, 3 and 4 herein were parties to the original suit, but their status so far as the present revision is concerned, is not significant.
( 2 ) THE relevant and pertinent facts leading to the present revision are not only necessary to be examined, in order to focus the attention thereon in the correct perspective, but also present an outstanding case where lengthy, protracted and deliberately extended litigation tends to defeat justice, and results in frustration to those who are law-abiding citizens and seek to redress their grievances through due process of law instead of resorting to extra-judicial methods.
( 3 ) AMARSINGH Baldevsingh Chauhan-original plaintiff was a landlord of the leased premises in question, and he filed H. R. P. Suit No. 5202 of 1968 for eviction of his tenant and sub-tenants, and for possession of the leased premises under the relevant provisions of the Bombay Rent Act. It is significant and important to note that this was the commencement of the litigation, in the year 1968, viz. , almost 28 years ago. This suit was filed against Shivnarayan Dhulaji Prajapati, who was alleged to be the sole tenant of the plaintiff-landlord. It is also pertinent and significant to note that the present petitioner Kesarben Dhulaji is the mother of the aforesaid shivnarayan Dhulaji Prajapati, and to also note that the present respondent Nos. 2 to 4 are the sons of the present petitioner and also the sons of the tenant Shivnarayan dhulaji.
( 4 ) THE suit of eviction was filed on the grounds of arrears of rent, unlawful sub-letting and reasonable and bona fide requirement. The said suit was dismissed by the trial Court on all the grounds. The landlord then challenged the dismissal of the suit by filing Civil Appeal No. 269 of 1972 which also came to be dismissed by the Bench of the Small Causes Court, Ahmedabad. The landlord was then obliged to prefer Civil Revision Application No. 1138 of 1976 in this Court under Sec. 115 read with Sec. 29 (2) of the Bombay Rent Act. In the said revision this Court came to the conclusion that other grounds for eviction could not be made out and to that extent the judgment of the lower appellate Court was confirmed, except on the ground of reasonable and bona fide requirement of the landlord. On this last ground this Court allowed the revision of the landlord and passed a decree for eviction.
( 5 ) IT should be noted here that the original landlord had expired during the pendency of the appeal from which the aforesaid revision arose, and therefore he came to be represented by Laxmansingh Baldevsingh Chauhan, who stepped into the shoes of the original plaintiff. However, since Laxmansingh Baldevsingh Chauhan was on record as a legal representative of the original plaintiff, he became the decreeholder so far as the decree for eviction passed by the High Court is concerned. No doubt, when the High Court reversed the judgments of the lower appellate Court and of the trial Court, so far as the gorund of reasonable and bona fide requirements of the landlord is concerned, and passed a decree on that ground, the said decree would relate back to the filing of the suit, and thus it can also be said that the decree was for the benefit of the original landlord as also for the benefit of his heir and legal representative.
( 6 ) HOWEVER, the decree-holder then faced the next hurdle of executing the decree in order to obtain possession of the leased premises. He, therefore, filed execution proceedings, viz. , Darkhast No. 73 of 1979. This Darkhast proceeded at its own pace until, after many years, a
