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IN THE HIGH COURT OF ALLAHABAD
K. B. Asthana, J.
HIRA LAL - Appellant
Versus
HARI NARAIN - Respondents
Civil Revn. 941 Of 1962
Decided On : 04/15/1963
ORDER XXI RULE 97 - DELIVERY OF POSSESSION - OBSTRUCTION - BONA FIDE CLAIM - JURISDICTION - MATERIAL IRREGULARITY - REVISION - AUCTION PURCHASER - JUDGMENT DEBTOR - CO-SHARER - SYMBOLICAL POSSESSION - ACTUAL PHYSICAL POSSESSION - ORDER XXI RULE 36 - APPLICABILITY - INTERPRETATION OF STATUTES - SECTION 115 CIVIL PROCEDURE CODE - SCOPE AND EXTENT - JURISDICTIONAL ERROR - MATERIAL IRREGULARITY - DISTINCTION - RELEVANT FACT - FACT IN ISSUE - EVIDENCE ACT - SECTION 13 - SECTION 40, 41, 42, 43 - ADMISSIBILITY OF JUDGMENT AS EVIDENCE - BENAMI TRANSACTION - BURDEN OF PROOF - ONUS OF PROOF - DISCRETIONARY POWERS OF HIGH COURT - ALTERNATIVE REMEDY - SUIT UNDER RULE 103 ORDER XXI - JURISDICTION OF COURT - SCOPE AND EXTENT - PROCEDURE - JUDICIAL CONSIDERATION OF EVIDENCE - DUTY OF COURT - CO-SHARER IN POSSESSION - RIGHT TO RESIST DELIVERY OF POSSESSION - SYMBOLICAL POSSESSION - ACTUAL PHYSICAL POSSESSION - DISTINCTION - ORDER XXI RULE 36 - APPLICABILITY - ANALOGY - DISTINCTION - REVISION - SUCCESS - ORDER SET ASIDE - ACTUAL DELIVERY OF POSSESSION - REMAND - COSTS - ENTITLEMENT.
Fact of the Case:
The Punjab and Sindh Bank obtained a decree for money against Smt. Narani Devi and one of her sons Shri Narain. In execution of this decree the decree-holder got a big house No. 24/88-A, birhans Road, Kanpur, belonging to Smt. Naraini Devi, one of the judgment debtors, attached. The house attached was put to auction on 4-9-1961 and was purchased by the applicants for a sum of Rs. 1,11,000/-. The sale was confirmed on 14-1-1962. Smt. Naraini Devi, it appears, filed a revision in the High Court against the confirmation of the sale but failed. Her revision was dismissed by the High Court on 27-3-1962. The house in question was partly tenanted of which possession had already been delivered to auction purchasers and partly occupied by the judgment-debtors Smt. Naraini Devi and her son Shri Narain, On 4-4-1962 on the application of the auction purchasers the court directed the judgment-debtors to deliver possession. Hari narain, another son of Smt. Naraini Devi who was not a judgment-debtor resisted delivery of possession. It appears that when Hari Narain came to know that the auction purchasers had sought police help to get the delivery of possession, he approached the court and filed an application on 11-4-1962 for setting aside the order of the court dated 4-4-1962 directing delivery of possession. This was registered as Misc. Case No. 22 of 1962.
Finding of the Court:
The court below has neither made a proper approach to the case, nor has it given any mature consideration to the evidence and the manner in which the result has been arrived at is not in accordance with law, the case does call for interference.
Issues: 1. Whether the court below committed an error which amounts to any material illegality or irregularity in the exercise of its jurisdiction? 2. Whether the auction purchasers are entitled to get actual delivery of possession of those portions of the disputed house which are in occupation of the judgment-debtors Smt. Narayani Devi and Sri Narain? 3. Whether the auction purchasers are entitled to get actual delivery of possession of the portion of the house in dispute occupied by Hari Narain, objector?
Ratio Decidendi: 1. The court below has acted with material irregularity and illegality in the exercise of its jurisdiction inasmuch as the manner in which it arrived at the result, suffers from manifest illegality and procedural irregularity. 2. Yes, the auction purchasers are entitled to get actual delivery of possession of those portions of the disputed house which are in occupation of the judgment-debtors Smt. Narayani Devi and Sri Narain. 3. No, the auction purchasers are not entitled to get actual delivery of possession of the portion of the house in dispute occupied by Hari Narain, objector.
Final Decision: The order of the court below is set aside. It is ordered that the auction-purchasers applicants shall get actual delivery of possession of those portions of the disputed house which are in occupation of the judgment-debtors Smt. Narayani Devi and Sri Narain. As far as the question of actual delivery of possession if the portion of the house in dispute occupied by Hari Narain, objector, is concerned it is ordered that the case is remanded to the Court below and the Miscellaneous case No. 25 of 1962 shall be restored to its original number and heard and decided in accordance with law in the light of the observations made in this judgment. The applicants shall be entitled to their costs of this revision.
( 1 ) BY this application an order passed by the learned First Additional Civil Judge of Kanpur dismissing the auction purchasers application under Order XXI, Rule 97 of C. P. Code for delivery of possession of the house purchased, has been brought up for revision. The facts which are necessary for the proper appreciation of the contentions raised by the learned counsel for the parties may be briefly stated.
( 2 ) THE Punjab and Sindh Bank obtained a decree for money against Smt. Narani Devi and one of her sons Shri Narain. In execution of this decree the decree-holder got a big house No. 24/88-A, birhans Road, Kanpur, belonging to Smt. Naraini Devi, one of the judgment debtors, attached. The house attached was put to auction on 4-9-1961 and was purchased by the applicants for a sum of Rs. 1,11,000/ -. The sale was confirmed on 14-1-1962. Smt. Naraini Devi, it appears, filed a revision in the High Court against the confirmation of the sale but failed. Her revision was dismissed by the High Court on 27-3-1962. The house in question was partly tenanted of which possession had already been delivered to auction purchasers and partly occupied by the judgment-debtors Smt. Naraini Devi and her son Shri Narain, On 4-4-1962 on the application of the auction purchasers the court directed the judgment-debtors to deliver possession. Hari narain, another son of Smt. Naraini Devi who was not a judgment-debtor resisted delivery of possession. It appears that when Hari Narain came to know that the auction purchasers had sought police help to get the delivery of possession, he approached the court and filed an application on 11-4-1962 for setting aside the order of the court dated 4-4-1962 directing delivery of possession. This was registered as Misc. Case No. 22 of 1962.
( 3 ) ON 7-5-1962 the auction purchaser applicants filed their application under Order XXI Rule 97, c. P. C. alleging that Hari Narain at the instigation of the judgment-debtors had obstructed the delivery of possession and prayed for necessary orders against him. This was registered as miscellaneous application No. 25 of 1962. The learned Civil Judge consolidated the above said-two applications for hearing.
( 4 ) HARI Narain in his reply to the application of the auction purchasers pleaded that the house in question was owned by the firm Hari Narain Shri Narain as the plots on which the house stood had been acquired from the funds of the said firm during the life time of has father Raja Ram who was a partner in equal share with him and Shri Narain. It was alleged that the funds for constructing the house in question were invested from the partnership assets and the name of smt. Naraini Devi in the sale deeds (lease deeds) in respect of the plots and on the house entered in public records were merely benami. It was further pleaded that the objector was residing in a separate portion of the house since the time it was built and each of the judgment debtors was also in possession of separate portions of the house as co-sharer proprietors. It was also alleged that the resistance and obstruction made by the objector was bona fide and on his own behalf and in any view the auction purchasers were entitled to be delivered possession only as co-sharers on the shares of the judgment-debtors that is merely a symbolical possession and prayed that they be prevented from physically dispossessing him. The learned Civil Judge by his order under revision accepted these pleas of Hari Narain and dismissed the application of the auction purchasers under Order XXI Rule 97, C. P. C.
( 5 ) SRI Brij Lal Gupta, the learned counsel for the applicants, submitted that the court below had acted with material irregularity and illegality in the exercise of its jurisdiction inasmuch as the manner in which it arrived at the result, suffers from manifest illegality and procedural irregularity. It was pointed out that in a proceeding of this nature the court below had no jurisdiction to deci
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