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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Rohit Ranjan Agarwal, J.
Seth Daryablal Manik Lal Tadaiya and Another – Petitioners
Versus
Siddh Gopal Kudariya and Another – Respondents
Matters Under Article 227 No. - 837 of 2022
Decided On : 28-03-2022
Transfer of Property Act - Section 52 - Constitution of India - Article 227 – Civil Procedure Code, 1908 - Section 151 - Order 21 Rule 97-101 – Tenant - Arrears of Rent - Petition filed Suit against respondent no. 2 for arrears of rent and ejectment - Claiming himself to be landlord of first floor of House which was rented to respondent no. 2 at monthly rent - According to decree-holder/respondent no. 1, respondent no. 2 defaulted in payment of rent despite demand - A notice was issue which was served upon tenant-respondent no. 2 determining the tenancy and demanding arrears of rent – whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature - This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding - court cannot shirk its responsibility by skirting the relevant issues arising in the case ( Para 25,26).
Finding of the Court: It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by decree-holder - Rule 101 stipulates that all questions ‘arising between the parties to a proceeding on an application under Rule 97 or Rule 99’ shall be determined by the executing court, if such questions are ‘relevant to the adjudication of application - A third party to the decree who offers resistance would thus fall within ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to execution of the decree - No doubt if the resistance was made by a transferee pendente lite of judgment-debtor, scope of adjudication would be shrunk to limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of Transfer of Property Act - Thus, from the reading of provisions of Order 21, Rule 97-101 C.P.C. and decisions rendered by Apex Court, it is clear that executing court is not obliged to determine a question merely because the resistor or objector has raised it. The question which the executing court is obliged to determine under Rule 101 must possess two adjuncts. Firstly, such question should have legally arisen between the parties and secondly, it must be relevant for consideration and determination between the parties.
Result: Writ petition dismissed.
JUDGMENT :
1. Heard Ms. Shreya Gupta, learned counsel for the petitioners and Ms. Rama Goel Bansal, learned counsel for the respondent no. 1.
2. This is a petition filed under Article 227 of Constitution of India challenging the judgment and order dated 04.01.2022 passed by District Judge, Jhansi in S.C.C. Revision No. 39 of 2021 as well as judgment and order dated 30.10.2021 passed by Judge Small Causes, Jhansi in Misc. Case No. 28 of 2019 rejecting the application filed by objectors/petitioners under Order 21 Rule 97-101 C.P.C. and Section 151 C.P.C. and allowing the application 39-C filed by the decree-holder/respondent no. 1.
3. Facts in nutshell giving rise to the petition are that the decree-holder/respondent no. 1 filed a S.C.C. Suit No. 53/2013 against respondent no. 2 for arrears of rent and ejectment. The decree-holder, claiming himself to be the landlord of the first floor of House No. 196, Jawahar Chowk, City-Jhansi which was rented to respondent no. 2 at monthly rent of Rs.100/-since the year 1986. According to decree-holder/respondent no. 1, respondent no. 2 defaulted in payment of rent since 01.06.2005, despite demand. A notice was issued on 12.07.2013 which was served upon tenant-respondent no. 2 on 19.07.2013 determining the tenancy and demanding arrears of rent. When the rent was not tendered, a S.C.C. Suit No. 53 of 2013 was filed on 13.08.2013 which was decreed by the judgment and decree dated 28.03.2017 passed by Judge, Small Cause Court, Jhansi. Against the said order, S.C.C. Revision No. 24 of 2017 was filed which was dismissed by judgment dated 25.09.2019 passed by Additional District Judge/ Special Judge (S.C./S.T. Act), Jhansi.
4. The tenant-respondent no. 2 challenged both the orders before this Court through Writ Petition No. 8309 of 2019, under Article 227 of Constitution of India. This Court vide judgment dated 14.11.2019 dismissed the writ petition and found the tenant to be in arrears of rent and liable to be ejected. Immediately after two days on 16.11.2019, the present petitioners filed an application under Order 21 Rule 97-101 and Section 151 C.P.C. on the ground that the property in dispute was let out to the firm Seth Daryablal Manik Lal Tadaiya, whose proprietor was one Sunil Kumar Tadaiya who had died on 11.05.2015 and after his death, petitioner no. 2, Smt. Lata Tadaiya had become the proprietor of the firm. It was further contended that shop in question was let out to the firm in the year 1967 by one Shankar Lal Kudariya, father of decree-holder, respondent no. 1 and it was a partnership firm which continued to run till 1988, and after its dissolution the firm continued as a proprietorship. The firm had been paying rent to the father of decree-holder/ respondent no. 1. After death of Shankar Lal Kudariya, his son respondent no. 1 and his brother, Dr. Awadh Kishore took the rent. It was further stated in the application that firm had tendered rent from 01.10.2000 to 30.11.2004 amounting to Rs.10,000/- on 28.06.2008. According to the application, the decree-holder, respondent no. 1 in collusion with respondent no. 2 had got the decree for eviction without information to the petitioners. In Para 9 of the application, it has been stated that it was for the first time in month of October, 2019 that petitioners got information regarding the judgment in the matter by Judge Small Cause Court. The said application was contested by the decree-holder/respondent no. 1 and an objection was filed wherein the contents made in the application were vehemently denied. It was stated that the petitioner no. 2, Smt. Lata Tadaiya is the sister-in-law of respondent no. 2 and after the writ petition was dismissed on 14.11.2019, the application under Order 21 Rule 97 C.P.C. was filed at the behest of respondent no. 2 through the petitioners. The Judge, Small Cause Court on 30.10.2021 dismissed the application which was registered as Misc. Case No. 28 of 2019 on the ground that the application was filed to delay the
Rule 97 read with Rule 101 of Order 21 post amendment wherein the executing court has to determine under Rule 101 Order 21 of the Code that the question raised has legally arisen between the parties ....
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
A third party claiming under a judgment debtor cannot file an application under Order XXI Rule 97; they must file under Rule 99 instead.
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
A person claiming independent right, title or interest in the property can resist delivery of possession even by filing an objection under Order 21 Rule 97 CPC in the executing court itself and if th....
The main legal point established in the judgment is that a decree obtained by a tenant against a licensee can be executable against subsequent purchasers who are in possession without any lawful decr....
A person in possession of property has the right to object to the execution of a decree under Order 21 Rule 97 CPC, and the trial court must consider such objections before proceeding with execution.
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