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IN THE HIGH COURT OF ORISSA
D.P. Mohapatra, J.
BHANUMATI TOPPO - APPELLANT
Versus
SHANKAR PRASAD PANDEY AND ANOTHER - RESPONDENT
Civil Revision No. 45 of 1981
Decided On : 11-11-1984
ORDER 21 RULE 35 CPC - EXECUTION OF DECREE - IMMOVABLE PROPERTY - DELIVERY OF POSSESSION - PERSON BOUND BY DECREE - INTERPRETATION AND APPLICATION:
Fact of the Case:
Petitioner challenged the order of the Munsif rejecting her application for stay of further proceedings of the execution case till her right, title, and interest in the disputed property is determined. The property in question was the subject of an eviction proceeding under the Orissa House Rent Control Act, where the tenant was ordered to vacate the premises. The petitioner, who was not a party to the eviction proceeding, claimed to be in possession of the premises in her own right and not bound by the eviction order.
Finding of the Court:
The court held that the petitioner was a person bound by the decree for eviction passed against the tenant, as she had claimed joint interest with the tenant and failed to establish her independent interest in the premises.
Issues: Whether the petitioner, who was not a party to the eviction proceeding, could be considered a person bound by the decree for eviction.
Ratio Decidendi: The court interpreted Order 21 Rule 35 CPC, which provides for the delivery of possession of immovable property, and held that the petitioner, by claiming joint interest with the tenant and failing to prove her independent interest, was bound by the eviction order. The court distinguished the case from a Madhya Pradesh High Court decision, which held that a third person can resist or obstruct delivery of possession and the executing court must stay its hands until the decree-holder satisfies it that the person is bound by the decree.
Final Decision: The court dismissed the revision petition filed by the petitioner, upholding the order of the Munsif and allowing the decree-holder to evict the petitioner from the premises without taking recourse to provisions under Order 21, Rule 27, CPC.
JUDGMENT :
D.P. Mohapatra, J. - This petition u/s 115, CPC is filed by one Mst. Bhanumati Toppo challenging the order of the Munsif, Sambalpur in Execution Case No. 1 of 1975 rejecting her application for stay of further proceedings of the said case till her right, title and interest in the disputed property is determined. The property in question is the house bearing holding No. 774 in ward No. 8 in Jharsuguda town.
2. Sankar Prasad Pandey (opposite party No. 1) initiated a proceeding under the Orissa House Rent Control Act, (H. R. C. Case No. 46 of 1972) for eviction of the tenant, Miss. P. Tigge (Opposite Party No. 2) from the suit house. The application did not succeed before the House Rent Controller, but in appeal (H. R. C. Appeal No. 2/74) the petition was accepted on 10.10.1974 and the tenant was directed to vacate the disputed premises and hand over vacant possession of the same to the landlord by the end of November, 1974. The tenant (Opposite Party No. 2) tried to assail the said order in a writ petition before this Court (O. J. C. No. 1179/74) but did not succeed. However, this Court while dismissing the writ petition allowed the tenant to remain in the house till 31.3.1977. In accordance with this direction the tenant vacated the disputed house and filed a memorandum in the execution case which had been initiated by the decree-holder-landlord in 1975, during the pendency of the writ petition. Thereafter, the petitioner who was not a party to the proceeding under the House Rent Control Act has filed this application to stall any attempt by the decree-holder to evict her from the suit house by taking recourse to provisions of Order 21, Rule 35, C. P. C. She prayed for stay of further proceedings of the execution case till the decree-holder gets some order from the competent Court to evict her from the suit premises. In the application she alleged inter alia that she has been in possession of the suit premises in her own right for several years and she is not bound by the order for eviction passed in the proceeding under the Act against opposite party No. 2.
3. The executing Court on consideration of the application rejected the prayer of the petitioner holding that she is bound by the decree for eviction passed against opposite party No. 2.
4. Before considering the case on merits, it will be convenient to quote the provisions of Order 21, Rule 35, C. P. C., which has been referred to by the parties.
''35. Decree for immovable property :
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."
The core question that arises for consideration is whether the petitioner can be said to be a person bound by the decree. If the answer is in the affirmative, as held by the executing Court, the revision petition is bound to fail. On the other hand, if the answer is in the negative then the decree-holder is not entitled to evict her from the premises without taking recourse to provisions under Order 21, Rule 27, C. P. C.
At this stage it is perti
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