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Allahbad High Court
M.P.SAXENA
Jairaji - Appellant
Versus
Firm Jagarnath Prasad - Respondent
Decided On : 08/22/1975
ORDER XXI, RULE 95 - DELIVERY OF POSSESSION - RESISTANCE BY THIRD PARTY - SECOND WARRANT OF POSSESSION - CONDITIONS - SATISFACTION OF COURT - APPLICABILITY OF ORDER XXI, RULE 97 - SUIT FOR POSSESSION - LIMITATION.
Fact of the Case:
The decree-holder auction-purchaser applied for possession of the property purchased in execution of a decree. The Amin went to deliver possession but was resisted by a third party, Smt. Jairaji, who claimed to be in possession of the house in her own right. The decree-holder then filed a second application for possession with police aid, which was allowed. Smt. Jairaji filed an application under Section 151, Civil Procedure Code, claiming that she was not liable to be dispossessed as the house was not the same as the one mentioned in the sale certificate and that she had constructed it with the sanction of the Municipal Board. The court held that her application was not maintainable under Order XXI, Rule 95 or 99, Civil Procedure Code or Section 151, Civil Procedure Code and dismissed it.
Finding of the Court:
The court held that even under Order XXI, Rule 95, Civil Procedure Code a second writ of possession can be issued after resistance or obstruction provided the court is prima facie satisfied that resistance or obstruction has been offered by the person on a ground which is patently without substance or whose claim is on the face of it unacceptable and cannot be said to be in good faith.
Issues: 1. Whether a second warrant of possession can be issued after resistance or obstruction by a third party? 2. Whether the court is required to be satisfied that the claim of the person offering resistance or obstruction is prima facie not acceptable or not bona fide before issuing a second warrant of possession? 3. Whether an application under Section 151, Civil Procedure Code is maintainable by a stranger to a decree for possession of immovable property to record his resistance or obstruction to delivery of possession?
Ratio Decidendi: 1. Yes, a second warrant of possession can be issued after resistance or obstruction provided the court is prima facie satisfied that resistance or obstruction has been offered by the person on a ground which is patently without substance or whose claim is on the face of it unacceptable and cannot be said to be in good faith. 2. Yes, the court is required to be satisfied that the claim of the person offering resistance or obstruction is prima facie not acceptable or not bona fide before issuing a second warrant of possession. 3. No, an application under Section 151, Civil Procedure Code is not maintainable by a stranger to a decree for possession of immovable property to record his resistance or obstruction to delivery of possession.
Final Decision: The revision application was dismissed, but the parties were directed to bear their own costs.
2. Briefly stated the facts giving rise to this application are that firm Jagarnath Prasad Thekedar, opposite party had filed a suit (No. 18 of 1961) for the recovery of money. In that suit attachment before judgment of certain property including a house with Ahata and Parti land bounded as below and situate in Qasba Bhadoi, District Varanasi, was made:
North:- House and Ahata of Sukhnandanlal
South:- House of Pyagram Gupta.
East: Pucca Road which goes from Bhadoi to Gyanpur.
West: Ahata of Sukhnandan Lal in possession of Elaka Prasad Baijnath Prasad.
In execution of the decree the said house was put to auction on 15-1-1969 and was purchased by the decree-holder. The sale was confirmed on 17-8-1972 and the sale certificate was issued on 7-9-1972. On the same day the decree-holders auction purchasers moved an application under Order XXI, Rule 95, Civil Procedure Code for possession over the said house after removal of locks etc., if any. On 18-9-1972 they gave another application (7-D) praying that police aid may also be provided be cause the judgment-debtors were likely to resist delivery of possession. It may be stated here that Hansraj, Judgment-debtor, had died and the application was moved against his widow Smt. Jaswant Devi, son Prem Kumar, daughters Smt. Krishna Devi, Smt. Sarla Devi, and Smt. Sudarshan Devi. On 28-9-1972 the court passed the following order:
"Issue warrant of possession returnable by 28-10-1972."
3. On 11-10-1972 the application 7-D was allowed and a letter was directed to be issued to the Circle Officer Bhadoi for giving necessary police aid on payment of requisite charges by the decree-holder. On 25-10-1972 the court Amin went to deliver possession of the house. The pairokar of the decree-holder took him to Mauza Bagh Talab Sardar Khan and pointed out a house of which possession was to be delivered. The Amin was accompanied by a police constable also. The Amin compared the boundaries of this house with those given in the sale certificate and found that they tallied with each other. The only difference was that the sale certificate the house was shown to be situate in Qasba Bhadoi but, in fact, it lay in village Bagh Talab Sardar Khan. Plot No. or house No. was not given in the sale certificate. The Amin found that the house consisted of several rooms and manufacture of carpets was going on in the rooms and the Verandah and about 20 persons were working there. When some of these persons and one woman Smt. Jairaji (the revisionist) came near him he apprised them with the purpose of his visit. Smt. Jairaji gives out to him that the house belongs to her and she had got it constructed with the sanction of the Municipal Board. She showed the plan and sanction for construction. She also gave out that she was carrying on carpet manufacturing business in that house and the judgment-debtor or his heirs had no concern with it nor it was ever attached or sold in execution of any decree. She also represented that the house shown in the sale certificate lies in Qasba Bhadoi while this house is situate in Bagh Talab Sardar Khan and there is sufficient distance between the two places. She, therefore, refused to deliver possession of the house and also gave a written application (11-C) to that effect to the Amin. As the Amin apprehended reasonable apprehension of breach of the peace, he came back without executing the Parwana and submitted his report (10-C 2) to the court on 28-10-1972 narrating all the facts.
4. On 4-11-1972 the defendant auction-purchaser gave another application (12-C) under Order XXI, Rule 95, Civil Procedure Code for issuing the parwana for delivery of possession again. This time it was prayed that a Vakil Commissioner be appointed to execute the Parwana and aid of one Sub-Inspector and four police constables be provided. On th
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