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1998 (2) JLJ 187
(SUPREME COURT)
K. Venkataswami and A.P. Misra, JJ.
Shreenath and another v. Rajesh and others
Civil Appeal No. 2929 of 1985; against the order of the M.P. High Court
passed in Civil Revision No. 406 of 1983; Decided on 13.4.1998.
(2) Civil P.C., 1908 -- O. 21 R. 35 (1) -- executing Court delivers actual physical possession of the disputed property to the decree holder – if necessary, person bound by the decree is removed – words ‘‘by removing any person bound by the decree" are significant. [Para 1 0
(3) Civil P.C., 1908 -- O. 21 R. 36 -- relates to execution of decree in respect of immovable property in possession of tenant or other person not bound by the decree -- decree holder in such case get symbolic possession. [Para 10
(4) Civil P.C., 1908 -- O. 21 R. 97 - conceives of resistance or obstruction to the possession of immovable property -- made in execution of a decree by "any person" [Para 10
(5) Civil P.C., 1908 -- O. 21 Rr. 97 (2), 97 (1), 99 and 101 (amended) -decree holder may complain such resistance -- on such complaint the executing Court shall adjudicate right, title or interest in the property -- "any person" used under R. 97 (1) is deliberate for widening scope of powers.
The expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger.
So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the executing Court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and the other persons claiming title on their own right‘ to get it adjudicated in the very execution proceedings. [Paras 10 & 11
(6) Civil P.C., 1908 -- O. 21 Rr. 101, 97 and 99 (amended) -- all disputes relating to property made under Rr. 97 and 99 -- are to be adjudicated under R. 101 by the executing Court itself finally. [Para 13
(7) Civil P.C., 1908 -- O. 21 R. 97 -- person resisting execution as a tenant or as a claimant of on his own right -- executing Court alone has to adjudicate such claim -- there is no difference in old or new provisions after 1976 amendment. [Para 14
(8) Civil P.C., 1908 -- O. 21 Rr. 97, 99 and 100 -- person in possession of disputed property -- could resist execution -- his claim ought to have been decided before he is dispossessed even under the old provisions. 1980 JLJ 678 (FB) overruled (1995)1 SCC 242 and (1997) 3 SCC 694 relied on. [Paras 15 to 17
¼1½ fof/k dk fuoZpu && izfØ;kRed fof/k && ,d ls vf/kd fuoZpu laHko && og viuk;k tkuk pkfg, ftlls U;k; ls Nykok gq, fcuk izfØ;k NksVh gks tk,A ¿ iSjk 3À ¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 35¼1½ && fu"iknu U;k;ky; }kjk fMØhnkj dks fooknxzLr laifÙk dk HkkSfrd dCtk fn;k tkrk gS && ;fn vko‘;d gks] fMØh ls vkc) O;fDr dks gVk;k tkrk gS && in **fMØh }kjk vkc) fdlh ,sls O;fDr dks ----- gVk dj ds** egRoiw.kZ gSA ¿ iSjk 10À ¼3½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 36 && vfHk/kkjh vFkok vU; O;fDr ds tks fMØh ls vkc) ugha gS] dCts dh LFkkoj laifÙk ds ckjs esa fMØh d fu"iknu esa dh xbZ gksA ¿ iSjk 10À ¼4½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 97 && ladYiuk LFkkoj laifÙk ds dCts ds izfrjks/k vFkok ck/kk dh gS && tks **fdlh O;fDr** }kjk fdlh fMØh dss fu"iknu esa dh xbZ gksA ¿ iSjk 10À ¼5½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 97 ¼2½] 97 ¼1½] 99 rFkk 101 && ¼la‘kksf/kr½ fMØhnkj ,sls izfrjks/k dk ifjokn dj ldrk gS && ,sls ifjokn ij fu"iknu U;k;ky; laifÙk esa vf/kdkj] gd vFkok fgr dk U;k;fu.kZ;u djsxk && fu- 97¼1½ esa ‘‘kCn **fdlh ,sls O;fDr** dk iz;ksx ‘kfDr;ksa dh O;kfIr dks foLr`r djus ds fy, tkucw> dj fd;k x;k gSA mi[kaM ¼1½ esa **fdlh O;fDr** in ‘kfDr dh O;kfIr dks foLr`r djus ds fy, tkucw> dj fd;k x;k gS ftlls fd vk- 21 fu- 97 ds v/khu fd, x, ,sls fdlh vkosnu esa fd, x, nkos dk fu"iknu U;k;ky; }kjk U;k;fu.kZ;u fd;k tk ldsA bl izdkj] **fdlh ,sls O;fDr** ds iz;ksx ls blesa dCts ds ifjnku dk izfrjks/k djus okys] laifÙk esa vf/kdkj dk nkok djus okys] ijO;fDr ds lkFk&lkFk vfHk/kkjh rFkk Lora= :i ls vf/kdkj dk nkok djus okys vU; O;fDr Hkh tks fMØh ls vkc) ugha gS] lekfo"V gks tkrs gSA mlh izdkj] fMØhnkj rFkk ,sls fdlh O;fDr ds chp fookn fu"iknu }kjk vk- 21 fu- 101 ds v/khu U;k;fu.khZr fd, tkuk gksrs gSA fdlh i{kdkj dks Lo;a dks u, okn dh yach f[kapus okyh J;lk/; izfØ;k esa <dsys tkus ds fy, Qasdk ugha vkrkA fu"iknu dk;Zokgh es gh mls U;k;fu.khZr djok;k tk dj ;g fMØhnkj rFkk Lora= :i ls vius gd dk nkok djus okys vU; O;fDr;ksa] nksuksa dk laHkkfor dfBukbZ ls m)kj ds fy, gSA ¿ iSjk 10 rFkk 11À ¼6½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 101] 97 rFkk 99 ¼la‘kksf/kr½ && laifÙk ls lacaf/kr fu- 97 rFkk 99 ds v/khu izLrqr leLr fookn && fu"iknu U;k;ky; }kjk Lo;a gh fu- 101 ds v/khu vafre :i ls U;k;fu.khZr fd, tkuk pkfg,A ¿ iSjk 13À ¼7½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 97 && vfHk/kkjh vFkok Loar= :i ls vius vf/kdkj dk nkok djus okys O;fDr }kjk fu"iknu dk izfrjks/k && fu"iknu }kjk gh ,sls nkos dk U;k;fu.kZ;u fd;k tkuk gskxk && 1976 ds la‘kks/ku ds i‘pkr~ iqjkus vFkok u, mica/kksa esa dksbZ varj ugha gSA ¿ iSjk 14À ¼8½ flfoy izfØ;k lafgrk] 1908 && vk- 21 fu- 97] 99 rFkk 100 && fooknxzLr laifÙk ij dCtk j[kus okyk O;fDr && fu"iknu dk izfrjks/k dj ldrk gS && mls csdCtk djus ds iwoZ iqjkus mica/kksa ds v/khu Hkh mldk nkok fofuf‘pr fd;k tkuk pkfg,A 1980 ts ,y ts 678 ¼iw.kZ U;k;ihB½ myVk x;kA ¼1995½1 ,l lh lh 242 rFkk ¼1997½3 ,l lh lh 694 voyafcrA ¿ iSjk 15 ls 17À
Misra J. -- 1. The seeker of justice many a time has to take long circuitous routes, both on account of hierarchy of Courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breathes fear of receiving the fruits of that justice for which he has been aspiring to receive. The reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of the hierarchy of Courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the lower Courts under the scrutiny of a higher Court be rectified 'and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seeker in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches the litigation as much as possible. Thus this has been the cause of anxiety and concern of various authorities, legislators and Courts. How to eliminate such a long consuming justice? We must confess that we have still to go a long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice.
2. The Courts within their limitation have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decretal property which is within its fold in an execution proceeding, i.e. including what may be raised later by way of another bout of litigations through a fresh suit. Similarly legislatures equally are also endeavouring by amendments to achieve the same objective. The present case is one in this regard. Keeping this in view, we now proceed to examine the present case.
3. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
4. This appeal arises out of the judgment and order of the High Court of Madhya Pradesh, Bench at Indore, in Civil Revision No. 406 of 1983.
5. The question raised is, whether the third party in possession of a property claiming independent right as a tenant not party to a decree under execution could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 of the Civil Procedure Code?
6. Respondent 1, Rajesh, filed a suit for the redemption of his mortgage against Respondent 2, Prem Shanker, which was decreed. The decree directed the delivery of vacant possession of the mortgaged property to the applicant (Respondent 1). In the said suit, admittedly, the present appellants were not parties. The decree-holder put his decree in execution in which the present appellants obstructed on the ground that vacant possession cannot be delivered in execution because they were the tenants in the shop from the year 1952 much before the execution of the mortgage which was in the year 1962, hence, only symbolical possession can be given. There have been two rounds of proceedings in execution. Initially, the executing Court held that the decree-holder was not entitled to take actual possession in execution of the decree against
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