1981 Supreme(MP) 327

H. G. Mishra, J.
Jainarayan v. Gyansingh.
C. Revn. No. 145 of 1981 (I) ; Decided on 2-5-1981.

Headnote:(1) Civil P. C. 1908-O. 21, Rr. 35, and 97 -decree holder submitting application tinder R. 97-cannot ignore it-fresh application for warrant of possession under R.35 not maintainable and no warrant to evict a particular person can be issued.

       (2) Precedent -essence in a decision is its ratio and not every observation.

       The decree-holder prayed for issuance of a warrant for deLi"Very of possession afresh. Accordingly, the Executing Court directed issuance of a warrant for the purpose and fixed 13-10-1972 as date for further proceedings in the case, on 28-9-1972. Jainarayan, the revision-applicant and pancham N. A. 5, resisted deLi"Very of possession. This led the decree-holder to submit an application under Order 21, R. 97, CPC on 4-10-1972 complaining that Jainarayan had unlawfully obtained possession of the suit premises by breaking open the lock of judgment-debtors and that after so obtaining possession he has let out the suit premises to pancham (N. A. 5). On these facts the decree-holder prayed issuance of a warrant for deLi"Very of possession against them; On notice, this application was opposed by Jainarayan by his reply dated 9-11-1972 on the grounds that he has ken in possession in his own right with effect from 6-2-1947 and as such, he is not a person bound by the decree. Accordingly, the decree holder has no right to take possession of the suit premises: Pancham by his reply dated 9-11-1972 also opposed the said application. On 9-11-1972 the Executing Court ordered inquiry on the said application submitted by the decree-holder and directed the parties to lead evidence. The parties led evidence and the case was fixed for arguments on the said application; before arguments could be heard and an ordered could be passed on his application the decree-holder submitted another application under Order 21 R. 35 CPC on 30-6-1980, in which it was stated that Jainarayan and pancham had obstructed deLi"Very of possession on 28-9-1972 on the ground that the former is owner of the suit premises and that in fact they have no right to be in possession of the suit premises and resist deLi"Ver) of possession. Moreover, there is apprehension of breach of peace, accordingly deLi"Very of possession be ordered to be effected with the aid of police. This application was opposed by Jainarayan on the ground that the application under Order 21, R; 35 CPC is not maintainable in view of the pendency of the aforesaid application submitted by the decree-holder under rule 97 of O.21 CPC, inquiry directed on the basis of which had already been concluded. By the impugned order the learned Judge of the Executing Court has allowed the application submitted by the decree-holder under Order 21, R. 35 on 30-6-1980 and has ordered issuance of a warrant for deLi"Very of possession with aid of police. A prayer made on behalf of the applicants to bring stay order has also been rejected holding that dispossession will not constitute any grave injury to the applicant. Hence this revision.

       Held: The learned Judge of the Execting Court appears to have been pursuaded to proceed on the assumption that the ratio of Usha Jains case (1980 JLJ 678) governs the situation and that it lays down the law entitling the decree-holder to submit an application afresh under Order 21, R.35 for issuance of a warrant for deLi"Very of possession again What has been laid down in Pt. Ramgulam Choubey v. Mahendrakumar (1972 JLJ 152), the principles whereof have approval of the full Bench, in Usha Jains case (supra), is as under:

       (A) "A person who has obtained a decree for possession and who has not been put into possession by the judgment debtor outside the Court in obedience to the decree has to decide what type of assistance he want from the Court consistent with the decree for obtaining possession. Under rules 35 and 36 the Courts assistance is available by issue of warrant for deLi"Very of actual possession, joint possession or by symbolical possession form of warrant for deLi"Very of possession finds place in form No. 11 of Appendix L. It is noteworthy that this warrant in general terms directs the bailiff to put the decree-holder in possession of the property and to remove any person bound by the decree· who may refuse to vacate the same. The language of the form which is in line with first clause of rule 35, indicates that the warrant issued under this provision is not issued to remove any particular individual from possession but is issued in general terms to remove any person bound by the decree. It follows that He words if necessary by removing any person bound by the decree who refuses to vacate the property" which find place in cause I of rule 35 do not contemplate any inquiry for finding out as to who is the particular person in possession or whether he is bound by the decree or refusing to vacate the property. The provision for issue of a warrant in general terms negative any occasion of any such inquiry.

       (B) "A third party Cannot intervence at that stage and force an inquiry into his title or possession on an unwilling decree-holder for the simple reason that his case does not fall under section 47 and no inquiry into his title or possession is contemplated under rules 35 and 36 at any rate at this instance."

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       (C) After a warrant for deLi"Very of possession is issued in favour of a decree-ho1der or an auction purchaser, he may be set with resistance or obstruction in obtaining possession and the warrant may be returned unexecuted. He will then have three courses open to him. He may accept that the person resisting or obstruting execution is a third party in possession who is not bound by the decree in which case he will have to institute a separate suit for possession within ordinary period of limitation for obtaining possession. He may proceed on the assumption that the resistance or obstruction is by the judgment debtor or a person bound by the decree in which case he has to apply under rule 97 for getting the title and nature of possession of the person obstructing or resisting investigated In execution proceeding. But he is not bound to apply under rule 97 and may ignore the obstructing or resistance and apply again for warrant of deLi"Very (.1f possession, See Nathu Harishankar v. S Fatuss (AIR 1933 NAG 369) Kantisingh v. Ramgopal (AIR 1941 NAG 322) and Official Trauaton v. Monmthonath (AIR 1953 Cal. 490). It is also clear that if the decree-holder or the auction purchaser docs not chose to apply under rule 97 neither the person obstructing or resisting execution nor a person who may in future obstruct of resist execution can apply under that rule to have his title and possession investigated, See Jagannath v, Khaja Faiauddin (AIR 1935 Nag. 212 and Nanakchand v. Chaturbbuj 1964 JLJ SN 15)."

       (D) An inquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and applies under rule 100 complaining of such dispossession.

       (Numbering into A. B. C. D. is mine) Emphasis supplied).

       From the principle (A) above, it is clear that Order 21, 3S does not contemplate an inquiry for finding out as to who is particular person in possession or whether he is bound by the decree or refusing to vacate the the property. The provision being for issuance of warrant in general terms negatives any occasion for such inquiry. Accordingly, as II logical corollary of this position of law, it has to be regarded that under rule 35 of O. 21 warrant is not issued and cannot be issued to remove any particular individual from possession. In the instant case decree-holder already moved an application under rule 97 of Order 21, the decree-holder submitted an application under rule 35 of Order 21. This appears to have been done with the obvious intention of avoiding the decision which be had invited the Executing Court to give on his application under rule 97 of O. 21 CPC as stated above. It appears that the last course out of the three courses said to be open to a decree-holder, who is met with resistance or obstruction in obtaining possession in principle No. (c) above has been permitted to be adopted by the trial Court. The last of the, three courses said to be permissible does not appear to authorise a decree-holder to ignore his application under Order 21, R. 97 CPC. The third course, which the decree-holder may adopt is that he is not bound either under R. 97 and may ignore obstruction or resistance and apply again for warrant of deLi"Very of possession." The Executing Court appears to have acted on the assumption that the decree-holder having submitted an application under rule 97, can ignore it and apply afresh for issuance of a warrant . for a deLi"Very of possession. This is not what has been regarded permissible by this Court. This three courses appear to be optional and the decree-holder is free to adopt anyone of the courses. But the question is whether after having adopted one of the courses, in the instant case the second course, namely, that of submitting an application under rule 3S of O. 21 CPC is open? Obviously the answer will be in the negative. More so because the application under rule 35 of Order 21 dated 30-6-1980 is grounded on resistance. and or obstruction offered by the applicant and non-applicant No.5 Pancham on 28-9-1972, which was subject matter of inquiry on an application of the decree-holder under rule 97, as stated above. In this situation, this application ought to have been considered as a second application under rule 97, though order is to disguise its true character it was labelled by the decree-holder as that under Order 21 rule 35. It appears that the learned Judge of the Executing Court did not take into consideration this aspect of the matter and appears to have acted on the assumption that the last course out of the three courses indicated in principle (c) above, can be adopted by the decree-holder, at his option. This could not be legally permitted. Even assuming that the decree-holder could submit an application under rule 35; at the best a warrant for deLi"Very of possession in general terms could be ordered to be issued. No warrant could be issued to remove any particular individual from possession as per principle (A) above. Since the decree-holder has prayed for issuance of a warrant against the applicant and non-applicant No. 5 Pancham, particular persons, the ratio of Pt. Ramgulams case (supra) had for the same reason that of Usha Jains case (supra) does not authorise issuance of any order of dispossession against them, that too with the aid of police.

       Relying on paras 9 and 19 of the case of Usha Jain ,-supra) a vigorous attempt was made by Shri Joshi to construct an agreement in support of the impugned order. However, nothing held therein supports the contention. A decision is only an authority for what it actually decrees. What is of the essence in a decision is it; ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it, as held in State of Orissa v. Sudhansu Shekhar Misra (AIR 1968 SC 647). Further more, in subd`rule (I) of rule 35 of O.21 the expression "if necessary by removing any person bound by the decree who refuses to vacate the property is significant. The decree-holder may submit an application under rule 35 on the assumption that the person refusing to vacate the property is not bound by the decree. But the whole question is how the Executing Court can without holding an inquiry into the question as to whether the person refusing to vacate the property is bound by the decree or not can ordered to be dispossession? If in a case on the facts admitted by such a person, in can be concluded that he is bound by the decree, he may be ordered to be dispossessed. But, if he has disputed the facts stated by the decree-holder holding of an inquiry is· necessary. 1912 JLJ 152 explained; 1980 JLJ 678 (FB) distinguished, AIR 1968 SC 647 followed. Revision allowed.