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2015 Supreme(MP) 43
HIGH COURT OF MADHYA PRADESH
Rohit Arya, J.
Shobha Shinde v. Smt. Shushila Bai (dead) through LRs and others
Second Appeal No.247 of 2005 (Gwalior) : against the order dated 10.2.2005, passed in Miscellaneous Appeal No.49 of 2004;
Decided on 14.1.2015
K.B. Chaturvedi with G.P. Chaurasiya for appellant;
Sunil Jain for respondents.
Headnote:(1) Civil P.C., 1908 -- S.100, O.21 Rr.97, 102, 104 and 105 -- second appeal -- objections raised during execution proceedings by appellant/objector -- has rightly been rejected by Courts below -- filing of objections with claim of title of suit property -- based on sham transaction and apparent collusion between appellant, tenant and sub-tenant -- suit for eviction decreed -- still decree-holder/plaintiff has not been able to reap fruits of decree -- appeal dismissed.
Held : Filing of application under Order XXI rule 97 CPC with the claim of title of the suit property in fact and in effect is based on mere sham transaction and apparent collusion between the appellant, tenant and sub-tenant to obstruct or scuttle the execution proceedings.
In view of the aforesaid facts and circumstances, in the opinion of this Court, such an objection raised by the appellant-objector do not merit consideration and has rightly been rejected by the Courts below. 1998(2) JLJ 187 (SC) and AIR 1956 SC 593 followed. 1980 JLJ 678 (FB) overruled. (2011)15 SCC 377 discussed.
(2) Accommodation Control Act, 1961 (M.P.) -- Ss.12(1)(a), 12(1)(b) and 12(1)(c) -- suit for eviction under -- decreed by both Courts below -- objections rejected filed during executing proceedings by appellant/objector -- law cannot be pressed into service to rescue objectors -- who are in collusion and connivance with judgment debtors -- only to resist execution of decree for delivery of possession -- decree-holder is not able to reap fruits of decree.
Held : Suit for eviction was decreed under section 12(1)(a), (b) and (c) of the M.P. Accommodation Control Act. With the aforesaid conclusion, both the Courts below rejected the application under Order XXI rule 97 CPC.
The law so declared by the apex Court cannot be pressed into service to rescue such objectors who in collusion and connivance with judgment-debtors raise the objection resisting delivery of possession to in fact and in effect protect the judgment-debtors and act as a shield against execution of decree for delivery of possession to the decree-holder.
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1. This appeal by objector under section 100 CPC is preferred against the concurring order dated 10.2.2005 in Miscellaneous Appeal No.49/2004 confirming the order dated 25.10.2004 in Case No.2A/90X04. The appellant-objector’s objection under Order XXI rules 97 and 104 and 105 CPC has been rejected.
2. The relevant facts necessary for disposal of this appeal are to the effect that respondent No.1 Smt. Shushilabai had filed a suit for eviction of tenant/respondent No.2 Ghanshyam s/o Parsadi and respondent No.3/sub-tenant-Sampatrao as landlady/owner of the suit premises on 25.4.1989. Tenancy started from 1.5.1986 between Smt. Shushila and Ganshyam, who unauthorizedly had sublet the same to respondent No.3. On notice, both respondents-defendants appeared and resisted the suit for eviction. Parties led evidence. The trial Court on proper evaluation of the evidence on record, decreed the suit under section 12(1)(a), (b) and (c) of the M.P. Accommodation Control Act on 9.11.2000 holding inter alia that respondent No.2 was tenant and respondent No.3 was sub-tenant inducted by respondent No.2 unauthorizedly and consequently decreed the suit for eviction of respondents No.2 and 3. First appeal preferred by both the respondents was dismissed on 30.4.2004.
While the decree was put to execution, appellant Shobha Shinde wife of respondent No.3 Sampatrao; sub-tenant, filed an objection under Order XXI rule 97 CPC inter alia contending that the suit property was purchased by her from Parsadi father of respondent No.2 Ganshyam; tenant, on 24.4.1990. She being in possession of the suit property resisted the execution claiming that she is not bound by the decree for not being the party to the eviction suit. Trial Court rejected the objection as not maintainable in view of Order XXI rule 102 CPC as the alleged sale-deed dated 24.4.1990 in respect of the suit property was executed after institution of the suit of eviction in respect of the suit property on 25.4.1989. Being aggrieved thereby, the appellant filed miscellaneous appeal. The same was dismissed on 10.2.2005 against which the instant second appeal has arisen.
3. Few more facts relevant to be stated are to the effect that appellant-Shobha Shinde during pendency of aforesaid proceedings had also filed a Civil Suit No.4-A/2001 against respondent-Shushila; decree holder, for declaration of title based on the alleged sale deed dated 24.4.1990 on 19.3.2001. The civil suit was dismissed for want of prosecution on 30.1.2004. The application under Order IX rule 9 CPC filed by her was rejected on 24.8.2004.
With the aforesaid factual matrix on record the substantial question of law framed by this Court while admitting the appeal on 10.2.2009 is to the following effect :
“Whether impugned order passed by the Courts below are sustainable in law in absence of enquiry contemplated under Order 21 rule 97 of CPC?”
4. Before adverting to the contentions advanced by the parties, it is considered apposite to refer to the judgment of Hon’ble Supreme Court in the case of Shreenath and another v. Rajesh and others [(1998)4 SCC 543]. Factual matrix in the said case are that a suit for redemption of mortgage filed by A against B was decreed. Decree directed delivery of vacant possession of the mortgaged property to A. Objector C was not party to the suit, but was in possession of the suit shop as tenant from the year 1952, much before execution of the mortgage, which was in the year 1962. The objector C had resisted the execution of decree and for protection of his possession in the suit shop. He filed an application under Order XXI rule 97 CPC with the contention that the decree holder A cannot be delivered possession and only can be given symbolic possession. He further contended that he cannot be dispossessed in terms of the decree as neither was he party to the said suit nor did he derive any right and title through the judgment debtor. He claimed separate, independent legal right not affected either by
