1998 Supreme(SC) 419

1998(3) Supreme 555
Supreme Court of India
(From Calcutta High Court)
M.M. Punchhi, CJI, K.T. Thomas and S. Rajendra Babu, JJ.
Silverline Forum Pvt. Ltd. -Appellant
versus
Rajiv Trust & Anr. -Respondents
Civil Appeal No. 1835 of 1998
(Arising out of SLP (C) No. 9930 of 1997)
Decided on 31-3-1998
Counsel for the Parties :
For the Appellant : Kapil Sibal, and Arun Jaitley, Sr. Advocates, Utpal Majmudar, Ms. Sarla Chandra, Advocates.
For the Respondents : S.S. Ray, Sr. Advocate, Rana Mukherjee, Ms. Sumita Mukherjee, Goodwill Indeevar, Ranjan Mukherjee, Advocates.

Important Points
1. Resistance or obstructions made by a third party to the decree of execution can be gone into under Order 21, Rule 97 of CPC.
2. The words “all questions arising between the parties to a proceed­ing on an application under Rule 97” appearing in Rule 101 of Order 21, CPC, envelops only such questions as would legally arise for determination between these parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties and the second is, such questions must be relevant’ for consideration and determination between the parties.
3. A reading of sub-section (1) of Section 16 of W.B. Premises Tenancy Act, 1956 reveals that three additional requisites are necessary for a sub-tenant to get wiggled into the contours of the sub-section. They are (1) the sub-tenancy should have been created after the commence­ment of the Act; (2) the landlord of the premises should have given written permission to the tenant to create such sub-tenancy; and (3) the tenant and the sub-tenant should have notified the landlord of the creation of the sub-tenancy within one month of such creation. On compliance with the provisions of Section 16(1) of the Act, the sub-tenants are affor­ded two advantages incorporated in Section 13(2) of the Act, namely, 1st that such sub-tenant is entitled to be made a party to the suit for recovery of the premises by the landlord and 2nd that no decree or order for ejectment shall be passed against such sub-tenant except under certain specified conditions. Section 13(2) and Section 16(1) of the Act are inextricably intertwined with each other.

Headnote:(i) Civil Procedure Code, 1908 -Order 21, Rules 97 and 101-Decree for possession of immovable property-Resistance by third party-Can be gone into under Order 21, Rule 97, ef=act:10444>CPC.

       Held : it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rule 97 specifi­cally provides that when the holder of a decree for possession of immovable property is resisted or obstructed by “any person” in ob­taining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. (Para 9)

       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 the application”. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or ob­struction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such 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 the Transfer of Property Act. (Para 10)

       When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudi­cation of the complaint. The words “all questions arising between the parties to a proceed­ing on an application under Rule 97” would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the ques­tions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envis­aged in Order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. (Paras 11 & 12)

       It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicato­ry process contemplated in Order 21 Rule 97(2) of the Code. The adju­dication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. (Para 13)

       Consequently held : We, therefore, agree with the contention of Shri Siddhartha Shan­kar Ray, learned senior counsel for the second respondent that the High Court went wrong in holding that the contention of second re­spondent cannot be considered under Order 21 Rule 97 of the Code. But the aforesaid finding is not sufficient to dispose of this appeal. (Para 16)

       (ii) W.B. Premises Tenancy Act, 1956-Sections 13 and 16(1)- Suit for ejectment-Eviction decree -Execution proceedings-Resisted by second sub-tenant on ground that decree for eviction was passed without making him a party-Provisions of Section 16(1) of the Act-Not-com­plied with by second sub-tenant-Second sub-tenant also not covered by Section 13(2) or 13(4) of the Act-Non impleadment of second sub-tenant-Does not invalidate eviction proceedings-Pre­vious consent of landlord to his tenant for creation of sub-tenancy-Is valid only between the landlord and his tenant-It is not valid between sub-tenant and his tenant so as to bind landlord-Landlord entitled to delivery of possession by removing resistance made by second sub-­tenant. (Paras 22, 24, 27 & 28)