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GAUHATI HIGH COURT
R.K.Manisana Singh, J.
Mustt.Rizia Begum -Appellant
Versus
MD.Abul Naser -Respondent
Civil Revision No. 425 of 1989
Decided On : 02-01-1990
RESTITUTION OF PROPERTY - ORDER 21, RULES 97 AND 99, CPC - SECTION 151, CPC - APPLICABILITY - INHERENT POWER OF THE COURT - SCOPE - CONSTRUCTION OF BUILDING BY THIRD PARTY DURING PENDENCY OF SUIT - EFFECT.
Fact of the Case:
The petitioner, Rezia Khatoon, filed an application under Order 21, Rules 97 and 99 read with section 151, CPC, for staying the execution of the decree in Title Execution Case No. 5 of 1987. The Sadar Munsiff rejected the petition holding that the application could not be entertained as Rezia was a stranger to the proceedings and the application was premature.
Finding of the Court:
The court held that the application under Order 21, Rules 97 and 99, CPC, was not maintainable as the petitioner was a third party and that the application was premature. However, the court held that an application under section 151, CPC, was maintainable, if the equity intervenes in a case where a third party has been in possession of the decretal land or a part of it.
Issues: 1. Whether an application under Order 21, Rules 97 and 99, CPC, is maintainable by a third party? 2. Whether an application under section 151, CPC, is maintainable in a case where a third party has been in possession of the decretal land or a part of it?
Ratio Decidendi: 1. Order 21, Rules 97 and 99, CPC, are available only to decree holders or auction purchasers who are resisted or obstructed in obtaining possession. A third party cannot file an application under Order 21, Rules 97 and 99, CPC. 2. An application under section 151, CPC, is maintainable, if the equity intervenes in a case where a third party has been in possession of the decretal land or a part of it. In such a case, the court is to make an enquiry into the question as to whether the rule of equity is attracted.
Final Decision: The petition was dismissed.
2. The facts of the case of the petitioner Mustt. Rezia Khatoon in brief, are thus. Her brother Md. Ahiya instituted Title Suit No. 192 of 1986 against one Md. Abul in the Court of Munsiff Gauhati claiming, inter alia, eviction of Abul, Md. Ahiya obtained a decree ex parte against Abul. The decree was executed on 19.2.87 and Abul Naser was evicted from holding Nos. l!3and 115. Thereafter, construction on holding Nos. 113 and 115 was demolished, and the petitioner and her brother Ahija mutually and in collaboration with each other constructed one RCC building thereon by investing substantial amount of money.
The ex parte decree was set aside under O 9, R I, CPC. After setting aside the decree, exparte, on 9.4.87, on the application for restitution filed by Abul Naser under section 144, CPC, the learned Munsiff, in Misc (J) Case No. 17 of 1987, passed an order of restitution in respect of 15 lessas of land under Dag No. 2057 of K P Patta No. 149 of Sahar Gauhati Mouza with an Assam type house consisting of three rooms under holding No. 66/115 of ward No. 20 of Gauhati Municipal Corporation. Thereafter, Abul filed Title Execution Case No. 5 of 1987 for the execution of the order of restitution.
Rezia, the petitioner, herein, has instituted Title Suit No. 61 of 1989 against Abul and her brother Ahiya claiming declaration of her title or share to the land measuring 2 K. 2 L of Dag No. 2057 of KP Paita No. 149 of Sihar Gauhdti Mauza under holding Nos. 113/ 114/115 of Ward No. 20 (New) situated at Hem Barua Road, Fancy Bazar and the house standing thereon, on the footing that she and her brother jointly inherited the land and house from their mother, her share being 2/3rd and that Abul has not acquired any right or title to the suit premises. In the written statement filed by Abul in Title Suit No. 101 of 1971 pending in the Court of the Assistant District Judge, Gauhati Abul has admitted her/share in the land. In the suit, the petitioner Rezia filed an application under O 21, Rs 97 and 99 read with section 151, C.P.C. for staying the execution of the decree in Title Execution Case No. 5 of 1987. The Sadar Munsiff by an order dated II.12.89 rejected the petition holding that application could not be entertained as Rezia was a stranger to the proceedings and the application as premature.
3. Mr. B. K. Das, the learned counsel for the petitioner, has submitted that the petition could not be rejected on the ground that it as pre-mature and the petitioner was a stranger. To support his contention Mr. Das has referred me to the decisions in Gopi Lal vs. Jamuna Prasad, AIR 1954 Patna 36 (DB) ; Anusuya Bai vs. B. N. Ramaiah, AIR 1961 Mysore 238 ; Ram Chandra Verma vs. Manmal Singhi, AIR 1983 Sikkim 1, and Tahera Sayeed vs. N. Shanmugan, AIR 1987 AP 206.
4. Before dealing with the decisions in the cases cited above, it may be noted that it has been held by the Supreme Court that an application for restitution under section 144, CPC is an application for execution of a decree (See Mahijibhai vs. Manibhai, AIR 1965 SC 1477; and Magbool vs Md. Khodaija, AIR 1966 SC 1194),
5. In Gopi Lal (AIR 1954 Patna 36), a Division Bench of the Patna High Court has held that-
"The doctrine of restitution is based on the equitable principle that, on the reversal or modification of the previous order, the party affected should, as far as possible be placed in the same position which he would have occupied but for a decree, because it is the duty of the Court to act rightly and fairly according to circumstances towards all the parties involved. But this principle cannot be applied in a case where it conflicts with another rule of equity, namely, that a 'bona fide* purchaser for value should not be allowed to suf
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