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Gujarat High Court
Judgename :J.R.Vora
BHAVNAGAR TRANSPORT COMPANY - Appellant
Versus
VALMIKBHAI HIMATLAL PATEL - Respondent
C.A. 75 of 1999
Decided On : 07/05/1999
It is clear that the words occurring in later part of the Sub-rule (1) he may make an application to the Court complaining of such resistance or obstruction invariably refers to the words appearing in first part i.e. where holder of decree . . . . . . immovable property in Sub-rule (1). Thus, construction of Rule 97(1) makes it very clear that right to make an application to remove the obstruction is given only to the holder of decree or any purchaser of the property in execution of the decree. None else, except the persons referred under Rule 97 can make any application for the removal of the obstruction. The view canvassed by Mr. Gandhi that merely on a declaration of the obstruction, the Executing Court is obliged to investigate into the title of the property and to remove the obstruction, could not find favour of this Court having regard to the simple construction of Rule 97 of Order 21. Some of the High Courts have taken this view and some decisions have also been referred by the Executing Court in its Order below Exhibit 6 in Execution Application No. 38 of 1998 vide Para 5. The Application of the present appellant has no locus standi at all to claim a right to move the Court for removing the obstruction having declared himself to be an obstructor. It is a privileged locus standi given to the decree holder only.
Examining this Scheme of the Code as observed above, any third party cannot claim any locus standi, who is not a decree holder or a purchaser from a decree holder to move the Court to remove the obstruction and to have an enquiry into the title and status of such third party, vis-a-vis, property to be recovered in execution proceedings. The construction of Rule 97 of Order 21 is clear to the extent that even an Executing Court cannot act suo motu. Sub-rule (2) Rule 97 Order 21 makes it further clear that the Court shall proceed to adjudicate upon the application when such application is filed under Rule 97(1) Order 21 and that application can be filed by decree holder only. Therefore, the procedure having regard to the scheme of the Code clearly appears to be permissible and not mandatory. It is a permission granted to the decree holder but it is not mandatory on the decree holder to file an application when an obstructor moves the Court nor it is obligatory upon the Court to investigate the title and to remove the obstruction on such declaration.
[Para 8]
Key Points: - The judgment holds that the right to make an application to remove obstruction is given only to the holder of the decree or a purchaser of the property in execution of the decree; third parties have no locus standi to file such an application. (!) - It states that the executing court is required to adjudicate the application when filed under Rule 97(1), but the process is permissive, not mandatory, and only the decree holder or permitted persons may initiate; the court cannot act suo motu or adjudicate obstructor claims absent a proper application by the permitted party. (!) (!) (!) - The/view from this decision confirms that when an obstructor declares himself, the remedy lies with the decree holder or purchaser to file Rule 97(1) and the court proceeds under Rule 97(2); third parties cannot compel the court to adjudicate on their rights under Rule 97(2) absent a decree holder’s application. (!) (!) - The appellate court held that the order rejecting the obstructor’s application under Rule 97 is not appealable, as the procedure under Rule 97 is permissive and the remedy lies with the decree holder; the second appeal was dismissed with no order as to costs. (!) (!)
( 1 ) IN peculiar circumstances of the matter controversy surfaces whether a third party Obstructor and in possession of immovable property of which recovery of possession is sought by warrant in the execution proceedings by decree holder can claim to have his right adjudicated upon by executing Court on preferring an Application alleged to have been filed under Order 21 Rule 97 of the Civil Procedure Code and all the more when decree holder chooses not to complain before executing Court about removing such obstruction and files no application to remove obstruction under Rule 97 of Order 21 of C. P. C.
( 2 ) THE suit being Regular Civil Suit No. 523 of 1972 was filed by one Patel valmikbhai Himatlal and others against the defendant Patel Mohanbhai Muljibhai and others for the recovery of the possession of rented premises. The suit was decreed and it appears that the matter was pursued by the defendants till Supreme court but they failed and thereafter original plaintiff Patel Valmikbhai and other filed an execution Application before the Civil Judge, J. D. , at Bhavnagar, being civil Regular Execution Application No. 38 of 1998 for recovering the possession of the suit premises.
( 3 ) IN the above mentioned execution proceedings, a third party, i. e. the present appellant, Bhavnagar Transport Company, a registered partnership firm, through its partner Shri Jayantibhai Mathurdas Patel, filed an application at Exh. 6, stating that they are in possession of the immovable property, which is the subject-matter of the execution Application, and they are the obstructor of obtaining the possession by the decree holder. It was also urged to remove the obstruction by the third party and to adjudicate upon the rights of the third party to retain the possession and till then the recovery warrant for possession be stayed.
( 4 ) THE Application was dismissed by the Executing Court vide order dated 12/02/1999. The present applicant filed a Civil Regular Appeal No. 34 of 1999 before the District Court, Bhavnagar, which also came to be summarily rejected vide order dated 21/04/1999 and hence the present appellant first filed Civil Revision Application, and thereafter, the same was converted into the second Appeal. The Executing Court rejected the above application Exh. 6 of the present appellant on the ground that the present appellant had no locus standi to file the application for the removal of the obstruction under Rule 97 Order 21 of c. P. C. , nor such applicant can demand before executing Court to adjudicate upon the rights of the parties under Rule 97 (2) Order 21 of C. P. C. While the first appellate Court rejected the Appeal of present appellant because first appellate court came to the conclusion that the order passed by the Executing Court was not appealable and the order was subject to Revision by the High Court because appellate Court came to believe that the application of obstructor-applicant was not falling squarely under Rule 97 of C. P. C. and hence the executing Court did not pass order under Rule 97 of Order 21 of C. P. C. and, therefore, the appeal filed by the present applicant was not considered competent.
( 5 ) LEARNED Advocate Mr. M. B. Gandhi on behalf of the appellant and learned advocate Mr. S. M. Shah on behalf of the respondent were heard at length.
( 6 ) IN the background of the above mentioned facts, two issues arise for the determination of this Appeal - (i) Whether appellant being an obstructor is entitled to declare before the Court that he is the obstructor and to move the Court to adjudicate upon his right to retain the possession and to remove the obstruction, if any ? Under Rule 97 and Rule 97 (2) of Order 21 of C. P. C. especially when decree holder anyhow considers this not to be an obstruction in recovery of possession of the property because decree holder did not prefer any application for removal of obstruction under Rule 97 Order 21 of C. P. C. (ii) Whether appeal lies against an orde
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