ORDER
K.A. Swami, J.
1. In the light of the decisions of this Court and also of the other High Courts taking different views on the question involved in this Civil Revision Petition, it is referred to a Division Bench.
2. This C.R.P. is preferred against the order dated 24-8-1389 passed by the learned Additional Small Causes Judge (S.C.C.H.3), Bangalore City in Ex.No.4737/1989. The petitioner is an objector to the decree and the respondent is the decree-holder.
3. The respondent is the landlord of the premises in question. He obtained an order of eviction under Section 21(1)(f) and (h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act') on 4-1-1989 against Sri A.M. Bhatia. The order of eviction was put into execution in Ex.Case No. 4737/1989. The petitioner objected to the same by filing an objection under Section 47 C.P.C. stating that the order of eviction passed in H.R.C. No. 2828/1986 against A.M. Bhatia was not binding upon him and that he was in possession of the schedule premises in his own right as a tenant; therefore, the order of eviction obtained against A.M. Bhatia cannot be executed so as to dispossess him from the premises and secure possession of the same. Before causing obstruction to the execution by filing objection, the petitioner filed O.S.No.2886/1988 on 21-6-1988 in the City Civil Court against the respondent for a declaration that he is in possession of the schedule premises as a tenant and the order of eviction passed in H.R.C. No. 2828/1986 is not binding upon him and to permanently restrain the respondent from executing the said order of eviction and dispossessing the petitioner-plaintiff from the schedule premises.
4. He also filed an application under Order 21 Rule 26 of C.P.C. to stay the execution proceedings in Ex.Case No. 4737/1989. In the suit an order was passed on 30-6-1988 directing the parties to maintain the status quo. That order was challenged in C.R.P.No.4105/1989 before this Court. This Court by the order dated 17-7-1989 rejected the C.R.P. with the following observations:
'Petitioner has challenged the order of maintaining status quo passed by the lower Court on 30-6-1988 and continued on 19-7-1988. By ordering the maintenance of status quo the Court meant that the parties should maintain the status quo as it existed on that date. It does not prevent the decree-holder from executing the decree, as there is no stay order or any prohibitory order.
With the above clarification, this Civil Revision Petition is rejected.'
Consequently, the executing Court proceeded with the execution. The executing Court by the order dated 24-8-1989 held that the order of eviction was passed under Section 21(1X0 and (h) of the Act; and that the original tenant was Bhatia, the question as to whether the petitioner is a tenant of the premises in his own right cannot be gone into in the course of execution. It also followed a decision of this Court in MAHAVEERA v. MANGARAJ, : ILR1987KAR1940 and held that the remedy of the petitioner was to file a suit after the order of eviction was executed and he was dispossessed from the premises. Accordingly, it held that the objections were not maintainable. The executing Court also took a view that in the light of the order dated 17-7-1989 passed in C.R.P.No. 4105/1989, there was nothing to prevent the decree holder from executing the decree. Accordingly, the executing Court rejected the application filed under Section 47 of the C.P. Code by the petitioner as not maintainable.
5. The points that arise for consideration are as follows:
1) Whether it is open to a person who is not made a party to an order of eviction or a decree for possession, to obstruct execution of such order of eviction or decree for possession by filing objections to the execution?
2) If obstruction is offered by filing objections by such person, even if no application 4s filed under Order 21 Rule 97 of the C.P. Code by the decree-holder to remove such obstruction, whether the executing Court can proceed to execute the decree without enquiring into the objections or removing the obstruction offered to the execution of a decree for possession or the order of eviction?
3) Whether the only remedy available to a person resisting execution is to file a suit after the order of eviction or decree for possession is executed and he is dispossessed?
POINTS 1 and 2
6. Points Nos. 1 and 2 are inter-connected. Therefore, it is convenient to consider both these points together.
7. This Court in R.S. MADOIM SETTY AND ANR. v. A.R.A. BASITH AND ANR., 1970(1) Mys.L.J. 419 has held that where the obstructors file an application praying that the warrant for delivery of possession may be recalled and seek adjudication on the merits of their case, they cannot be allowed to contend that the adjudication should not have been made without an application under Order 21 Rule 97 C.P.C. by the decree-holder. !t has also been further held that the objections filed by the decree-holder to the petition of obstructors can be treated as an application by the decree-holder to remove obstruction and the Court can grant relief to the decree-holder though he has not made an application under Order 21 Rule 97 and decide whether the obstruction caused is at the instance of the Judgment debtor. It has also been observed that the question whether a party is bound by the decree can be investigated under Order 21 Rule 35 C.P.C. This is also the view expressed in MAHABIR PEKSHAO v. DELHI TRADERS PRIVATE LTD. AND ORS., : AIR1977Delhi45 , RAM SWAPUR v. MAHABIR PRASAD AND ORS. , : AIR1969All440 , JESRAJ GHASIMAL BETAL v. AHAMMAD HUSSEIM, , : AIR1987Kant75 , CHANDRAKANT MALLAPPA DESAI AND ANR. v. MISHRIMAL NAMAL OSWAL AND ANR. 1984(1) KLJ 347; and MANOHAR ISWARAPPA CHITAGI AND ANR. v. GAJANANA AND ORS. 1986(1) Bangalore Law Journal 244 Order 21 Rule 35(1) of the C.P. Code specifically provides that where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
8. From the underlined words contained in Sub-rule (1) of Rule 35 of Order 21, it is clear that the executing Court can execute the decree against the Judgment debtor and any person who is bound by the decree. Therefore, it is clear from the aforesaid rule that if any person causes obstruction to the execution of a decree, it becomes necessary for the executing Court whether or not the decree-holder files an application for removing the obstruction under Order 21 Rule 97 C.P.C. to decide the objections of the obstructor and determine the question as to whether the objector/ obstructor is bound by the decree or not. This determination falls under, and shall have to be made in accordance with, Rules 97, 98, 100 and 101 of Order 21 of the C.P. Code. Such determination also attracts Rules 103 and 104 of Order 21 of the C.P. Code. Until those objections are decided, the executing Court cannot proceed to execute the decree.
9. In SMT. SHRI DEVI v. KASHIRAM AND ORS. , SMT. USHA JAIN AND ORS. v. MANMOHAN BAJAJ AND ORS. AIR 1980 SC M.P. 146and K.A. PRABHAKARAN v. KUTTIAN PRAKASHAN AND ANR., : AIR1985Ker204 it has been held that as the provisions contained in Rule 97 of Order 21 C.P.C. only give an option to the decree-holder to seek for removal of obstruction, it is not necessary for the decree-holder to always seek for removal of obstruction and as the objector has a right to file a suit if he is dispossessed in execution of the decree, the objection by a person in possession of the immoveable property against the decree-holder is not maintainable.
In Jesraj Ghasimal Betel's case, Kulkarni, J., following Maddim Setty's case held that the objections filed by the decree-holder for removal of obstruction to execution can be treated as an application under Order 21 Rule 97 C.P.C. but nevertheless took a view that the objections filed by the decree-holder did not contain any prayer for removal of obstruction and hence it could not be treated as an application filed by the decree-holder under Rule 97 of Order 21 C.P.C. and accordingly directed the execution to proceed on the basis that there was no application for removal of obstruction.
In Mahaveera's case, Murlidher Rao, J., has distinguished the decisions in R.S. Maddim Setty's case, Chandrakant Mallappa Desai's case and Manohar Iswarappa Chitagi's case and has followed the decisions in Jesraj Ghasimal Betel's case Smt. Shri Devi's case, Smt. Usha Jain's case, K.A. Prabhakaran's case Smt. JAIRAJI v. FIRM JAYANTH PRASAD, : AIR1976All1 and RAMAIAH v. KUMARI MALLAIAH, : AIR1962AP72 and has decided the following points:
1. What is the status of the petitioners?
2. Whether his application under Order 21 Rule 97 C.P.C. is maintainable?
3. Whether his application under Section 10 C.P.C. is maintainable?
On the facts and circumstances of the case, on point No. 1 it has been held that the petitioner therein was bound by the eviction decree passed against Jugraj in H.R.C. No. 5/1980. Therefore, he was liable to be evicted; as such he had no independent title. On point No. 2 it has been held that the provisions contained in Order 21 Rule 97 C.P.C. are - meant to assist the decree-holder in execution. The only person who can invoke those provisions is the decree-holder or the auction purchaser. The remedy which is available to the decree-holder under Order 21 Rule 97 C.P.C. is permissive and not mandatory, therefore, he can make successive applications for the issue of delivery warrant. He cannot be penalised for not having taken action under Order 21 Rule 97 C.P.C. against the resistance offered by the third party. The Executing Court has no jurisdiction to start an enquiry either suo motu or at the instance of a third party regarding the title of the third party. The remedy of the third party is under Order 21 Rule 100 C.P.C. after he is dispossessed and not before. On point No. 3 it has been held thus:
'In execution, prior to 1976 amendment, two types of suits were contemplated; they are: 1) Order 21 Rule 63 and 2) Order 21 Rule 103. After amendment, such suits cannot be entertained. The order passed under Sub-section (4) of Order 21 Rule 58 is treated as a decree similarly all questions of right, title and interest, decided in a proceeding under Rule 97 or Rule 99 shall be determined by the Court dealing with these petitions and separate suit is barred. Resultant position, is, after the 1976 amendment there cannot be a suit dealing with the identical issue, which is covered by Order 21 Rules 58, 97 or 99. If such a suit is filed, it is legally not maintainable and the only remedy available to the party would be to take steps as per Order 21.'
In considering point No. 3, the decisions in ISMAIL SAB v. C.P. NANJUNDA SHETTY, C.R.P. 2413/1973 DD 7-1-1974 and RAMEGOWDA v. B.G. RAMESH, C.R.P. No. 1118/1973 DD 13-8-1973 have also been referred to. The present case is referred to a Division Bench having regard to the decisions in Mahaveera and R.S. - Maddim Setty's case.
The decision in R.S. Maddim Setty's case has been distinguished on the ground that that decision was rendered prior to the Amendment Act 104/1976 and the decree-holder had made an application under Order 21 Rule 97 C.P.C; that the learned Judge who decided the case agreed with the observations in Ramaiah's case that an obstructor who was not a party to the decree under execution was not entitled to approach the Court with an application to determine and safeguard his right for obtaining an order in his favour under Order 21 Rule 97 of the C.P. Code or any other provisions of law. We may point out here itself that in Maddim Setty's case what had been really decided was as to whether the Court could grant the relief to the decree-holder though he had not made an application under Order 21 Rule 97 C.P.C. and whether the obstruction was caused by a third party or at the instance of the Judgment-debtor. The decision in Ramaiah's case was only relied upon in support of the conclusion that the objections filed by the decree-holder to the petition of the obstructions should be treated as an application made under Order 21 Rule 97 C.P.C. In Maddim Setty's case, it has not been held that an obstructor who is not a party to the decree under execution cannot approach the Court to determine and safeguard his rights for obtaining an order in his favour. In fact, it has been specifically held on disagreement with the decision in UNITED BANK OF INDIA LTD. v. J.C. MITRA, AIR 1962 Assam 150 thus:
'Though I am unable to agree with the view that the question whether a party is bound by the decree cannot be investigated under Order 21 Rule 35 Civil Procedure Code, the facts and circumstances of the present case are such that the said observations are not of any assistance to the petitioner.'
While dealing with the decision in Ramaiah's case it has been specifically observed thus:
'Applying these observations, with which I, respectfully agree, to the facts of this case, the objections filed by the decree-holder to I.A.No. V, should be treated as an application made under Order 21 Rule 97 C.P.C. and the order made by the Court as one made under Order 21 Rule 99.'
Therefore, the other proposition laid down in Ramaiah's case 12 to which a reference is made in Mahaveera's case at para 20 of the Judgment has not been followed in Maddim Setty's case.
The decision in Chandrakant Mallappa Desai's case has been distinguished on the grounds that it was a case which dealt with staying of proceedings under Section 10 C.P.C. and that it was a case where the objections filed by the decree-holder to an application filed by the obstructor was treated as an application under Order 21 Rule 97 C.P.C. as there was a specific order passed by the Court to treat it as such. As may be pointed out a little later, in Chandrakant Mallappa Desai's case, the effect of Rules 97 to 104 of Order 21 of the C.P.C. has been considered.
The decision in Manohar Iswarappa Chitagi's case has been distinguished on the ground that it has considered the question as to what is meant by resistance or obstruction? When does it occur? and what is the remedy available? It may be relevant to notice that in the above case, following Maddim Setty's case and Mahabir Pershad's case it has been specifically held that if the obstructors file an application in the course of the execution offering obstruction or resistance and if the decree-holder files objection to the application filed by the obstructors, then the objections filed by the decree-holder would amount to an application within the meaning of Order 21 Rule 97 C.P.C.
10. During the course of arguments, Sri U.L. Narayana Rao, learned Counsel for the petitioner has also brought to our notice the decision in MOHAMMED AMEER v. HAFEEZ KHAN, : AIR1990Kant32 it is further submitted by him that the proposition of law laid down in the said decision affects the persons in possession of immoveable property against which a decree for possession is passed and to such a decree, the person in possession is not a party to protect his possession by seeking appropriate interim relief in a suit or proceeding. We will also consider the correctness of the said decision in due course.
11. The contention of Sri U.L. Narayana Rao, learned Counsel for the petitioner is that as the provisions contained in Order 21 Rule 35 and 97 to 104 of the C.P. Code, as amended by Central Act 104/1976, enable the objections to be enquired into and decided and the order passed on the said objections is appealable in the same manner as a decree passed in the suit, whether or not there is an application filed by the decree-holder for removal of obstruction caused by the person in possession of the immoveable property who is not made a party to the decree. The objections, or, in other words, the obstruction caused by such a person should be decided in the same manner as a suit. The submission is fully supported by the provisions contained in Rule 35(1) of Order 21 to which we have already made a reference and also the provisions contained in Rules 97 to 104 of Order 21 of the C.P. Code.
12. The effect of Rules 97 to 104 of Order 21 of the C.P. Code has been considered elaborately by this Court in Chandrakant Mallappa Desai's case and we agree with it. After quoting the relevant provisions, this Court has held as follows:
'5.....Rule 103 of Order 21 of the Code further provides that the adjudication made under Rule 98 or Rule 100 of the Code, and an order passed thereon, shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Rule 101 of Order 21 of the Code, further provides that the Executing Court shall be deemed to have jurisdiction to decide all questions including those relating to right, title or interest in the property arising between the parties to a proceeding or their representatives and relevant to the adjudication of the application under Rule, 97 or 99, shall be determined by the Court dealing with the application and not by a separate suit. Consistent with this, the order passed under Rule 98 or Rule 100 of Order 21 of the Code, has been provided with the force of a decree. That being so, the same subject matter cannot in law be allowed to be tried between the same parties in another suit. Similarly, if a proceeding under Rule 97 of Order 21 of the Code is instituted during the pendency of the suit between the same parties involving same issues filed by the party to establish a right which he claims to the present possession of the property which is the subject matter of both the proceedings, cannot be allowed to go on in view of the fact that there is already a suit filed by the obstructor seeking the very same relief. In such a situation, the proceeding under Rule 97 of Order 21 of the Code being a subsequently instituted proceeding, cannot be allowed to overtake the suit instituted earlier and to render the suit infructuous. The position prior to coming into force of the C.P.C. Amendment Act 104 of 1976 was quite different as there was no provision similar to Rule 103 of Order 21 of the Code. Now the effect of Rule 103 of Order 21 of the Code is that even a proceeding under Rule 97 of Order 21 of the Code is treated as suit and the order passed upon the adjudication of the application on merits is treated as a decree. The result is that the provisions of Section 10 of the Code are also attracted. Therefore, later proceeding will have to be stayed. This is necessary to avoid multiplicity of proceedings.
6. Rule 103 of Order 21 of the Code as it stood prior to Central Act No. 104/1976 provided that 'any party not being a Judgment-debtor against whom an order is made under Rule 98 and Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any) the order shall be conclusive.' The period of limitation for such a suit as per Article 98 of the Limitation Act, 1963 is one year from the date of the final order. There were different views expressed by the High Court of Calcutta and Madras, as to whether it was necessary to institute a suit within one year or whether a decision in a pending suit could be availed of, if it involved the same question. To set at rest, the controversy, the Law Commission, in its 54th Report, recommended for substitution of Rule 103 and insertion of the new Rule 104. Accordingly, the present Rules 103 and 104 of Order 21 of the Code came to be substituted and inserted respectively by C.P.C. (Amendment) Act 1976 (Central Act No. 104 of 1976). But it appears to me, present Rules 103 and 104 of Order 21 of the Code, if interpreted literally, do not help to avoid multiplicity of proceedings. No doubt the adjudication falling under Rule 98 and 100 of Order 21 of the Code, are intended to provide a speedy remedy. But having regard to the provisions contained in Rule 103 of Order 21, an order passed on adjudication under Rule 98 or Rule 100 of Order 21 of the Code shall have the same force and be subject to the same conditions as to an appeal, or otherwise, as if it were a decree, the proceeding ceases to be a summary proceeding, it shall have to be tried as a suit. That being so, I fail to understand why the proceeding initiated under Rule 97 of Order 21 shall go on when there is already a suit filed by the affected party seeking to establish a right which he claims to be present possession of the property. In addition to this, Rule 104 of Order 21 makes the decision rendered under Rule 101 or Rule 103 of Order 21 of the Code, subject to the result of any suit that may be pending on the date of the commencement of the proceeding in which such order is made. When under Rule 103 of Order 21, the decision is raised to the status of a decree; why again it should be made subject to the result of the suit that may De pending on the date of commencement of the proceeding in which such order is made. Therefore, to avoid multiplicity of proceedings and to read the provisions contained in Rules 101, 103 and 104 of Order 21 of the Code, harmoniously, as the same are to be read and interpreted harmoniously, and also keeping in view Section 10 of the Code, the proper course appears to me is to hold that if on the date of initiation of the proceeding under Rule 97 of Order 21 of the Code, a suit between the parties has already been filed by the party who has sought to establish a right which he claims to the present possession of the property, proceeding instituted under Rule 97 of Order 21 of the Code, being a subsequent proceeding involving the same issues that are required to be decided in a pending suit between the same parties in respect of the same subject matter, shall have to be stayed pending decision in the suit. In this view of the matter, the order passed by the lower appellate Court does not call for interference.'
The decision in Mahaveera's case leads to the following result:
Even though a person in possession of an immovable property against which a decree for possession is passed, obstructs execution on the ground that he is in possession in his own right and does not claim the right to present possession through the Judgment debtor, the execution Court has to proceed with the execution on the basis that such objections to the execution are not maintainable and the only remedy for such a person is to file a suit after he is dispossessed to establish his title and secure possession. We are of the view that such a procedure not only ignores the possessory right, but it is opposed to our basic principles of jurisprudence that no person shall be condemned without affording him due opportunity to defend his case and no right or interest of a person whether in immoveable or moveable property or of any other nature can be taken away without giving him due opportunity of hearing. Rules of procedure shall have to be construed and enforced to advance justice and not to defeat the substantive right of a person.
13. Keeping in view these basic principles, the provisions of Sub-rule (1) of Rule 35 of Order 21 and Rules 97 to 101, 103 and 104 of Order 21 C.P.C. are to be read and construed. These Rules are to be read together. In that case, it is not difficult to see that these Rules provide for deciding such obstruction or objections in the same manner as a suit and the order passed therein is made appealable. No doubt Rule 99 of Order 21 also provides a remedy to such a person after he is dispossessed in the process of execution. But we are not able to see any justification for denying a person in possession of the property in his own right and not being, a party to the order of eviction or a decree for possession, a right to resist the decree for possession or the order of eviction and to have the objections decided before he is dispossessed. As to whether such a person is a party to the decree or not is one of the questions to be decided in such proceedings because, if it is found that he is not a party to the decree, them only the other contention raised by him would arise. If he is held to be a party to the decree, other contentions raised by him would not become relevant for consideration because in that event, he would be bound by the decree. Therefore, in any case, if it is established that his present possession of the immoveable property against which a decree for possession is passed, is referable to the Judgment debtor only or, in other words, he is not claiming independent right unconnected with the Judgment debtor, even though he is not a party to the decree for possession, he must be deemed to be a party to it because, he has no independent right of his own and the present possession of the immoveable property concerned in the decree is through the Judgment debtor only, and as such, he would be bound by the decree. However, that question does not arise in the instant case because the trial Court has not gone into that question. It has straight away rejected the objection and has not enquired into the objections and has not decided that question. It has straight away rejected the application filed under Section 47 of C.P.C. on the ground that it is not possible to decide the same in the light of the decision in Mahaveera's case and also in the light of the order passed by this Court in C.R.P. No. 4105/1989 dated 17-7-1989.
13.1. As Mahaveera's case is decided following the aforesaid decisions of the High Courts of Rajasthan, Madhya Pradesh, Kerala, Allahabad and Andhra Pradesh and also of this Court in Jesraj Ghasimal Betal's case, we proceed to consider those decisions:
14. In Shri Devi's case, one Ramachandra obtained a decree against his tenant Asuram. He levied execution of the decree. During the pendency of the execution, he sold the property to one Kashi Ram and Smt. Kamala Devi by a registered sale deed dated 26-3-1981. The transferees were substituted as decree-holders in place of Ramachandra by the executing Court. Smt. Shri Devi on the basis of the agreement to sell by Ramachandra in her favour, instituted a civil suit against Smt. Kamala Devi and also filed an application for grant of temporary injunction in the trial Court against one of the vendees Smt. Kamala Devi, In the original suit filed Smt. Shri Devi, the other vendee Kashiram was not a party. Subsequently he was made a party and an application for grant of temporary injunction was also moved against him but that application was rejected by the trial Court on 6-12-1982 and that order was upheld in appeal by the High Court of Rajasthan. Kashiram, one of the purchasers, submitted an application for issue of delivery warrant. On that application warrant of possession was issued by the Court. In execution of that warrant, possession officer of the Court went to the spot to deliver the possession but the house was found locked. Thereupon he submitted an application that possession may be delivered after breaking open the lock. On that application the Court ordered to deliver possession after breaking open the lock. On the same day, Smt. Shri Devi submitted an objection petition stating that she had already filed an objection under Section 151 read with Order 21 Rule 97 C.P.C. therefore, the execution of the decree should be stayed. Kashiram and Smt. Kamala Devi, the co-owners of the property stated that the property is undivided therefore, the decree-holder is only entitled to get constructive possession from her. It was prayed that the decree-holder may be put into constructive possession of the property and it may further be ordered that she may not be put out of the property forcibly with the aid of the police. The executing Court rejected the objection submitted by Smt. Shri Devi under Order 21 Rule 97 read with Section 151 C.P.C. and held that the objector - Smt. Shri Devi was a third party and she had no locus standi to get her right adjudicated. Therefore she could not interfere with the execution proceedings. In the revision before the High Court, it was held, following the decision in PANNA LAL AGARWAL v. KANHAIYA LAL JAIN, : AIR1974Pat284 that the wife of the Judgment debtor being a member of the family, was bound by the decree and the objection was not maintainable. Thus it was found that Smt. Shri Devi being the wife of the Judgment debtor, who was a tenant, was bound by the decree.
In other words, she was held to be a party to the decree. Therefore, the objections filed by her were determined on the facts and circumstances established therein viz., that she was a party to the decree for possession. Of course, on recording such a finding, it was held that the objections were not maintainable. Thus the decision in Smt. Shri Devi's case turned upon the finding recorded therein that Smt. Shri Devi was a party to the decree and as such she was bound by the decree; therefore, she could not object to execution of the decree. Therefore, it is clear that it does not help the contention of the respondent that the person in possession of immoveable property, not being a party to the decree for possession, cannot object to the execution and his/her remedy is only to file a separate suit after he/she is dispossessed in execution of the decree.
15. Smt. Usha Jain's case has been decided by a Full Bench of the High Court of Madhya Pradesh. The learned Single Judge referred the case to a Full Bench on the ground that the decision of a Division Bench in BHAGWAT NARAYAN'S CASE, : AIR1974MP26 was wrongly decided, and it required reconsideration. The Full Bench accepted the view expressed by that Court in RAMGULAM v. MAHENDRAKUMAR, 1972 MPLJ 254 and held that the view taken by the Division Bench Bhagwat Narayan's case was not correct. The Full Bench has held that no enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21 of the C.P. code when the decree-holder or the auction purchaser applies for obtaining possession. When the decree-holder or auction purchaser is met with any obstruction or resistance in obtaining possession, one of the options open to him is to apply under Rule 97 of Order 21 but that provision is merely permissive and not mandatory and it is open to the decree-holder/auction purchaser to apply, instead for a fresh warrantfor possession; that no enquiry under Order 21 Rule 35 of the C.P. Code is contemplated 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; that the second clause of Rule 35 of Order 21 of the C.P. Code deals with the mode of delivery of possession when the decree being executed is one for joint possession; that a third party, meaning thereby a person who is not a Judgment debtor or a representative-in-interest of the Judgment debtor, has no locus standi to apply that the application of the decree-holder for actual delivery of possession should be dismissed and he be granted only constructive possession; that Bhagwat Narayan's case made an assumption that the enquiry is contemplated at the stage of Order 21 Rule 35 C.P.C. at the instance of the third party without which the executing Court has no jurisdiction to proceed with the execution; that no such enquiry is contemplated as held in Ramgulam's case that the option available to the decree-holder to apply for a fresh warrant of possession has been over-looked in Bhagwat Narayan's case; that if the resistance offered by the third party is not enquired into, it would result in injustice to a third party in possession as he would have no option but to protect his possession and for his title judicially investigated; prior to his dispossession is incorrect as it overlooks the injustice resulting to the decree-holder from this view; that the third party can institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession; that it is no consolation to a decree-holder who is deprived of his possession if the objections of a third party are to be enquired into under Order 21 Rule 97 C.P.C.; because greater hardship and injustice would be caused to the decree-holder/auction purchaser if the objections of the third party are to be enquired into by reason of the recent amendment made to the C.P. Code by Central Act 104/1976. For these reasons, the Full Bench ultimately held thus:
'19. We have already shown that none of the reasons given by the Division Bench in Bhagwat Narayan's case (AIR 19974 M.P. 26) withstands scrutiny and that the view taken therein was on assumptions made which do not exist. With respect, we are of the opinion that the view taken by the Division Bench in Bhagwat Narayan's case cannot be upheld as correct. We are also of the opinion that the correct view which is also in line with the settled view of this Court as also the view of the other High Courts is contained in Ramgulam v. Mahendra Kumar, 1972 MPLJ 254; for the same reason, the view taken in Supreme General Films Exchange (Pvt) Ltd. v. Yuvaraj Govind Singh, 1972 MPLJ 857 that no fresh warrant could be issued on the auction-purchaser's application under Order 21 Rule 95 except under Rule 98 after investigation, treating that application as one under Rule 97, is also incorrect. We have already shown that the remedy to apply for a fresh warrant without making an application under Order 21, Rule 97, Civil P.C. is available to the decree-holder/auction purchaser.'
With great respect to Their Lordships of the Madhya Pradesh High Court constituting the Full Bench, we find it difficult to agree with the above view expressed in Smt. Usha Jain's case. The whole object of introducing the amendment to Order 21 of the C.P. Code by Central Act 104/1976 is to see that any objection to the execution by a third party is decided so that at a subsequent stage, the decree-holder is not faced with another suit. Therefore, by providing for an enquiry into the objection by the third party in the same manner as a suit, in the course of execution proceedings, the possibility of another suit is excluded. In other words, multiplicity of proceedings is eliminated. We are also unable to agree with the view that if the objections are to be enquired into, it will cause hardship and injustice to the decree-holder.
It is also not possible to agree with the view expressed by the Full Bench in Smt. Usha Jain's case that Rule 35 of Order 21 does not contemplate an enquiry when Sub-rule (1) of Rule 35 of Order 21 of the C.P. Code specifically provides that:
'If necessary by removing any person bound by the decree who refuses to vacate the property.'
Thus the executing Court can deliver possession if there is obstruction by a person who is bound by the decree by removing such a person. On the contrary, if there is obstruction or resistance by a person who is not made a party to the decree and who claims that he is not bound by the decree and he is in possession of the property, the delivery of which is sought, in his own right, the executing Court, without deciding such claim, cannot dispossess him and deliver the property to the decree-holder/auction purchaser. It is a very poor solatium to a person who is in possession of a property in his own right to tell him that he can have his right, title and interest in the property decided after he is dispossessed. It would be nothing but travesty of justice. When the person in possession of immoveable property claims that he is not bound by the decree because he is in possession in his own right, to tell him that the Court cannot examine his contention and it with execute the decree and dispossess him and thereafter he could file a suit and establish his title, is opposed to the very civilised notions of civil rights of the citizen which include a right, title and interest in, and to immoveable property. This would result in obtaining collusive decrees and dispossessing the persons in possession of immoveable property in their own right. This will also result in abusing the process of the Court. The endeavour of the Court must be to safeguard against such abuse of the process of the Court so as to avoid any injustice being caused to any party by the acts of the Court, in other words, by reason of exercise of jurisdiction by the Court or by the use of the process of the Court.
In addition to this, it is also necessary to bear in mind, as observed by the Supreme Court in SANGRAM SINGH v. ELECTION TRIBUNAL, : [1955]2SCR1 that 'our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their back, that proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them.' It is also further observed by the Supreme Court in the said decision that 'our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle'. Therefore, taking into consideration all the aspects, we are of the view that it is not possible to agree with the view expressed in Smt. Usha Jain's case.
16. In K.A. Prabhakaran's case, after noticing the provisions contained in Order 21 Rules 97 to 100 of C.P.C. it has been held thus:
'....A plain reading of the aforesaid provisions of Order XXI makes it clear that no application for adjudication of the right, title and interest of an obstructor would lie before he is dispossessed in execution of a decree to which he is not a party. If, however, he is dispossessed, he is given a remedy under Rule 99 of Order XXI, C.P.C. to apply for restoration of possession to the execution Court. The execution Court on such application is required to adjudicate the question of the right, title and interest of the dispossessed obstructor and pass appropriate orders under Rule 100 and such order of the execution Court is to be treated as a decree for all purposes including for the purpose of appeal and second appeal. The only remedy of a dispossessed obstructor is to apply under Rule 99 to the execution Court and have his claim adjudicated upon by the execution Court itself. A separate suit at his instance after dispossession will not be maintainable in view of the aforesaid provisions of the C.P.C. as amended in 1976. This does not, however, preclude to the obstructor from having recourse to a Civil Court by way of a separate suit before he is dispossessed in execution of a decree to which he is not a party. No application for adjudication of the rights of the obstructor would, however, lie under Order XXI Rule 97 C.P.C. in anticipation of his dispossession in execution of a decree to which he is not a party.'
Their Lordships have referred to the decisions in GEORGE v. VARKEY, AIR 1953 TC 123; PADMANABHAN v. NARAYANAN, AIR 1955 TC 225; Usha Jain's cases and RAMAN v. KARTHIKEYAN, : AIR1984Ker208 and held that no application under Order 21 Rule 97 C.P.C. would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree to which he is not a party.
For the reasons already stated, we find it difficult to agree with the view expressed in K.A. Prabhakaran's case.
17. In view of what has already been stated by us, it is not possible to agree with the view expressed in Smt. Jairaji's case. No doubt it is true that the executing Court cannot compel a decree holder to move an application under Order 21 Rule 97 of the C.P. Code but it cannot also proceed with the execution when an obstruction is caused by a third party by filing objections claiming to be in possession in his own right and not through the Judgment debtor, without deciding the objections. In Smt. Jairaji's case it is held that it is not required to make an enquiry of the nature contemplated by Order 21 Rule 97 of the C.P. Code on the ground that no procedure is prescribed for considering the objections filed by a third party without an application filed by the decree-holder under Order 21 Rule 97 C.P.C. It is also further observed that the enquiry will be made only for the satisfaction of the Court whether the person to be dispossessed prima facie belongs to the category given under Order 21 Rule 95 C.P.C. We have already held that whether or not the decree-holder files an application under Order 21 Rule 97 C.P.C., the executing Court has to determine the objections filed by a third party who is not a party to the decree. Therefore, the objections filed by a third party has to be determined in the same manner as a suit. In addition to this, it is also relevant to notice that the decision in Smt. Jairaji's case was rendered prior to the coming into force of Central Act 104/1976.
18. In Ramaiah's case it has been held that only a decree-holder can make an application under Order 21 Rule 97 C.P.C. complaining of resistance or obstruction which can result in an investigation by the Court. An obstructor who is not a party to the decree cannot approach the Court with an application to determine and safeguard his right or to obtain an order in his favour under Order 21 Rule 97 of the C.P.C. or any other provision of law. It has also been further held that such an application does not lie and a third party cannot ask for an enquiry in the matter or relief. There is also another proposition of law laid down in this decision that if the decree-holder instead of fifing an application under Order 21 Rule 97 of the C.P.C. for removing the obstruction, only files a counter to the application filed by a third party and takes part in the proceeding, on the determination of the objection filed by the third party, it would not be open to the decree-holder, if the decision were to go against him, to take a plea that the objection-application filed by a third party was not maintainable and the Court could not have decided the same. The latter proposition is in conformity with the view expressed by this Court in Maddim Setty's case. As far as the former proposition is concerned, it is not possible to agree with the same in view of what has already been expressed by us.
19. In SMT. TAHERA SAYEED v. M. SHANMUGAM AND ORS., : AIR1987AP206 it has been held that if the third party, not bound by the decree, approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immoveable property and files an application, it must be treated to be an intimation to the Court as caveat to the decree holder or purchaser or a person claiming through him and the Court has to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. Thus, the decision in Smt. Tahera Sayeed's case is in conformity with the view expressed by us and it is also in consonance with the provisions contained in Order 21 Rules 35(1) and 97 to 104 of C.P.C.
In Mahabir Pershad's case, in the execution petition itself, the decree-holder stated that certain persons were holding the property on behalf of the defendants-Judgment debtors and were therefore bound by the decree. Notices were issued to those persons by the executing Court and they filed objections that they were not bound by the decree and were not holding the property on behalf of the defendants and were not liable to be evicted. The Court adjudicated those objections. Therefore, it was held that when the decree-holder himself stated in the execution petition that the said persons were bound by the decree although their names did not appear in the decree and as the decree-holder himself sought for investigating into the matter and recording a finding therein; the Court accordingly enquired into it and recorded a finding on the basis that the statement made by the decree-holder in the execution petition could be treated as an application under Rule 97 of Order 21 C.P.C. Hence it was held that the decree-holder could not be heard to say that the Court ought not to have granted the application. Thus it is clear that the decision in Mahabir Pershad's case rests upon the facts and circumstances of that case and it has not decided the question involved in the present case. It has followed the decision in Bhagwat Narayan's case.
The decision in RAMACHANDRA VERMA v. MAMMAL SINGHI AND ANR. AIR 1983 Sikkim, page 1directly deals with the question involved in the present case. It is held in that case that as the decree has to be executed only against the person who is bound by the decree and if a person not being a party to the decree, in possession of immoveable property against which a decree for possession is passed, claims that he is in possession of the immoveable property in his own independent right and he is not bound by the decree, his objection should be enquired into and without adjudicating the objection, the execution Court cannot proceed with the execution. In this decision, the decision in Bhagwat Narayan's case is also followed. After discussing the relevant provisions of the C.P. Code, it has been held thus:
'11. The executing Court in this case did not hold that the revision petitioner was bound by the decree and therefore, he was wrong in ordering execution case to proceed, which he could do only if he could hold the revision petitioner to be bound by the decree. That being so, the executing Court should have stayed its hands in the matter leaving it to the decree-holder to proceed under Rule 97 or in such other manner as he might have thought fit. As the executing Court has no jurisdiction to proceed with the execution case when a third party in possession objects to the execution, unless he holds the objector to be bound by the decree, the executing Court in the case at hand exercised its jurisdiction illegally and with material irregularity to attract the revisional jurisdiction of this Court.
12......No one can speculate about the ultimate result of such a suit and if it fails for any reason, the question of executing the decree, which the executing Court ordered to proceed by the impugned order, will again arise. It is therefore, very much necessary that the executing Court be made aware that it has gone wrong in rejecting the application and ordering the execution to proceed without deciding that the revision petitioner is bound by the decree and the order must be quashed to that extent.
13. Mr. Sarkar has submitted that filing an application by the decree-holder under Rule 97 complaining of the resistance posed by the application would now be futile in view of the suit filed by the revision petitioner and would result in unnecessary multiplicity of proceedings. There is no obligation on the decree-holder to file such an application and he may not do so, if he is so advised. All that I have said is that after the executing Court found that a third party in possession was objecting to the execution of the decree by filing an application to that effect, the executing Court, without holding the party to be bound by the decree, could not reject the application as not maintainable under the law and order of execution to proceed and that the decree-holder in that circumstances, could have filed an application under Rule 97.'
20. It is contended by Sri U.L. Narayana Rao, learned Counsel for the petitioner that it is open to a person in possession of an immoveable property to file a suit for a declaration that the order of evictionor the decree for possession to which he is not a party, is not binding on him and seek appropriate relief to protect his possession; that in such a suit, the plaintiff is entitled to seek an appropriate interim prayer restraining the decree-holder to execute the decree; that in order to seek such an interim relief, the decision in Mohammed Ameer's case comes in the way; that Mohammed Ameer's case is not correctly decided.
21. In Mohammed Ameer's case, there was a decree for eviction obtained against defendant-1 in HRC 406/1365. The plaintiffs pleaded that the schedule property was part and parcel of the land known as Golla Malik Shah Fakir Inam land and the Darga and the lands were under the supervision of Muzrai Department. Syed Budden Shah was managing the Darga and the lands till his death and thereafter, his grand daughter Smt. Sakhina Bi - defendant-4 - came in possession and management of the Darga and was conducting the annual sandal and urus etc. The property then went under the control of the Wakf Board by virtue of Gazette Notification issued in 1965. A copy of the order dated 12-5-1976 appointing defendant No. 4 as Muzaver was produced by the plaintiffs. The plaintiffs pleaded that the decree obtained by defendant-1 was not binding on them. Defendant-1 pleaded that defendants 2 to 4 had no interest in the suit property; that 4th defendant was a tenant and she had filed H.R.C. petition and obtained an order of eviction and the plaintiffs were the sub-tenants and they were bound by the decree for eviction, in view of the provisions contained in Section 30 of the Karnataka Rent Control Act. In such a suit, an. application was filed for temporary injunction to restrain defendant-1 from executing the decree in H.R.C. 406/1965. The trial Court passed an ex parte order of temporary injunction and made it absolute after hearing the other side. That order was taken up in appeal to this Court. In that appeal this Court has held thus:
'4. At the outset, the appellant's Counsel urged that the decree of eviction in H.R.C. 406/1965 was passed by the Munsiff Court, Bangalore under special jurisdiction conferred under the Karnataka Rent Control Act and therefore, it was not the Court subordinate to the City Civil Court which entertained the present suit O.S.No. 3925/1987 and hence the City Civil Court has no jurisdiction to restrain the appellant from executing the decree. In this behalf, he referred to a decision of this Court in the case of Mohammed Hashim v. Sarabi [1977(2) Kar.L.J. 53] in which the learned Chief Justice who decided that case clearly held that the Court constituted under the Karnataka Rent Control Act is a Court of exclusive jurisdiction. It is not a Court subordinate to the Civil Court and hence a civil Court dealing with a partition suit has no jurisdiction to stay proceedings in the Rent Control Case.
5. Section 41 (b) of the Act deals with the situation when injunction could be refused. It states that injunction cannot be granted to restrain any person from instituting or prosecuting any proceedings in a Court not subordinate to that from which the injunction is sought. Therefore, according to the appellants' Counsel, the trial Court could not have proceeded to grant this relief of temporary injunction against this appellant on I.A.No. 1. I do find sufficient force in this argument in as much as Section 41(b) of the Act is a clear bar against making any such order. When the Court constituted under the Rent Control Act is conferred upon special jurisdiction to deal with the matters arising out of the Rent Control Act, it cannot be considered as a Court subordinate to the ordinary civil Court and hence the Court below ought not to have passed the impugned order on I.A.No. 1 which becomes the order without jurisdiction.'
The Court which passes an order of eviction under the Karnataka Rent Control Act is no other than the Court of the Munsiff having jurisdiction over the area in which the premises is situated outside the Bangalore City and in the case of a premises situated within Banglaore City, it is the Court of Small Causes, Bangalore City; but special jurisdiction is conferred on those Courts under the provisions of the Act. This does not mean that the person who is not bound by the order of eviction cannot seek appropriate relief from the ordinary civil Court. It is open to him to seek a declaration from the civil Court that the order of eviction is not binding upon him and to permanently restrain the person who has secured the order of eviction from interfering with the possession. In such a case, whether the Court which has passed an order of eviction is subordinate or not become immaterial.
22. MOHAMMED HASHIM v. SARABI, 1977(2) KLJ 53 arose out of a suit for partition. The Munsiff Court had stayed the further proceedings in a H.R.C. case pending before the Court conferred with the jurisdiction to entertain and decide H.R.C. cases. In that case, it was contended that the civil Court, in a partition suit, had no jurisdiction to stay further proceedings under the Karnataka Rent Control Act and as such the order challenged in revision was clearly one without jurisdiction. The learned Single Judge of this Court held as follows: .
'4. Shri A.K. Lakshmeswar, learned Counsel for the petitioner, submitted that the civil Court, in a partition suit, has no jurisdiction to stay further proceedings under the Karnataka Rent Control Act and the order under revision is clearly one without jurisdiction.
5. This submission of the learned Counsel for the petitioner, in my opinion, is right. The Court constituted under the Karnataka Rent Control Act, 1961 is a Court of exclusive jurisdiction. It is not a Court subordinate to the civil Court dealing with the partition suit. It requires no authority to say that the civil Court has no jurisdiction to stay proceedings in the Rent Control case. It is not for this Court to advise what is the remedy of the first respondent in such circumstances.'
Thus, what was held in that case was that the civil Court had no jurisdiction to stay the proceedings in the rent control cases.
23. In Mohammed Ameer's case the suit was filed for a declaration that the order of eviction passed in H.R.C. 406/1985 was null and void and not binding on the plaintiff and for a permanent injunction restraining the 1st defendant therein from interfering with the peaceful possession and enjoyment of the suit property. Hiremath, J, relying upon the decision in Mohammed Hashim's case and also on the provisions of Section 41(b) of the Specific Relief Act, 1963, held that the order of temporary injunction passed by the Court below was without jurisdiction. A temporary injunction in the said suit was passed restraining the 1st defendant from executing the decree in H.R.C. 406/1985.
It is relevant to notice that the ratio of the decision in Mohammed Hashim's case was not that the civil Court had no jurisdiction to grant an order of temporary injunction protecting the possession of the plaintiff. It was only to the effect that the civil Court cannot stay the H.R.C. proceedings initiated under the Act pending before the Court conferred with such jurisdiction under the Act. It is undoubtedly the jurisdiction of a civil Court to grant a declaratory decree. If an order of eviction is passed against 'A' under the Act and 'B', who claims to be in possession or the premises as a tenant or in any other capacity who has not derived such capacity from 'A' against whom a decree for eviction is passed and who is not made aparty to the eviction proceedings, as such he is not bound by such an order of eviction, he can very well maintain a civil suit in the civil Court for a declaration that he is a tenant in possession of the premises or he is in possession of the premises in other capacity not derived from 'A' against whom an order of eviction is passed and for a further declaration that the order of eviction passed against 'A' is not binding upon him and also seek a decree for permanent injunction restraining the person who has obtained an order of eviction from dispossessing him pursuant to the order of eviction. The Civil Court is also competent to entertain such a suit and pass an appropriate interim order of temporary injunction and ultimately pass a decree as prayed for. Such a suit is not hit by Section 41(b) of the Specific Relief Act. It may be relevant to notice that what Section 41(b) states is that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. It does not prevent a person from obtaining a decree from a civil Court or an appropriate interim order during the pendency of the civil suit to protect his possession. It also does not disable the civil Court in such a suit to grant the final as Will as interim relief. An order of a civil Court Protecting the possession of the plaintiff cannot be read and construed as preventing the defendant from instituting or prosecuting the proceeding in a Court not subordinate to the civil Court in which the suit is filed. Therefore, in Mohammed Ameer's case as the suit was filed for a declaration that the order of eviction passed in H.R.C. 406/1985 was null and void and not binding upon the plaintiff and for a permanent injunction, the civil Court was competent to grant an order of temporary injunction protecting the possession of the plaintiff. If the proposition of law laid down in paras 4 and 5 of the Judgment in Mohammed Ameer's case is accepted as correct, it would lead to anomalous situation and would result in jeopardising the right of a person who is in possession of the premises in his own right and is not a party to an order of eviction. It is possible that 'A' and 'B' may collude and 'A' may obtain an order of eviction against 'B' in an H.R.C. case under the Act though 'B' may not be in actual possession of the premises as a tenant, in respect of which order of eviction is obtained. 'C' is in actual possession of that premises in his own right. If the ratio of Mohammed Ameer's case is applied, the civil Court will neither have jurisdiction to entertain a suit nor pass an interim order of temporary injunction. The resultant position is that the collusive decree will defeat the right of 'C'. The proposition in Mohammed Hashim's case. is not also as wide as it is understood and applied in Mohammed Ameer's case In this case, it is not necessary for us to consider the correctness of the decision in Mohammed Hashim's case because that does not directly arise in the instant case. However, it is sufficient to state that Mohammed Hashim's case does not lay down that the civil Court cannot entertain a suit for a declaration that the order of eviction is not binding upon the plaintiff and for a permanent injunction. Whereas in Mohammed Ameer's case such a proposition is laid down in paras 4 and 5 of the Judgment on the reasoning that Section 41(b) of the Specific Relief Act bars such a remedy and it would be contrary to the decision in Mohammed Hashim's case.
Section 41 of the Specific Relief Act is a restrictive provision. It imposes restriction or limitation on the jurisdiction of a civil Court. Therefore, it has to be interpreted very strictly and not liberally. In interpreting Section 41 of the Specific Relief Act, care should be taken to ensure that the scope of the Section is not unduly expanded or widened as it will result in curtailment of or limiting the jurisdiction of a civil Court. Section 41(b) of the Specific Relief Act applies to a case wherein the relief sought is only to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. It will not apply to a suit wherein a relief of declaration and other consequential reliefs including possession etc. are sought. If the relief sought for in the suit lies within the jurisdiction of the civil Court, it is open to it to pass an appropriate interim order to aid the final relief which is sought in the suit. If passing of such a decree or an interim order results in disabling the defendant in the suit from instituting or prosecuting any proceeding in a Court not subordinate to the Court in which the suit is filed, it cannot be held that it is hit by Section 41(b) of the Specific Relief Act because interim reliefs are ancillary to the main relief. When the civil Court has jurisdiction to entertain the suit and grant the decree as prayed for, it follows that it has jurisdiction to pass appropriate interim order in aid of the main relief.
We may also point out at this stage itself that the proviso to Section 30 of the Act specifically provides that noticing in Section 30 shall apply to any person who has an independent title to the premises in respect of which an order of eviction is passed. This provision is in conformity with the provisions contained in Sub-rule (1) of Rule 35 of Order 21 of the C.P. Code which we have considered in the preceding paragraphs of this order. Therefore, the proviso to Section 30 of the Act also makes it clear that the executing Court cannot execute an order of eviction against a person who is in possession of the premises in his own right and has an independent title to it.
24. For the reasons stated above, we are of the view that the proposition of law laid down in paras 4 and 5 of the Judgment in Mohammed Ameer's case, is not correct. Hence we overrule the same.
25. For the reasons stated above, we hold as follows:
a) The decisions in Mahaveera's case and Mohammed Ameer's case, are held as not laying down the law correctly and the same are overruled.
b) The decision in Jesraj Ghasimal Betel's case, in so far it holds that as the objections filed by a decree-holder, do not contain a prayer for removal of objection and as such the same cannot be treated as an application under Order 21 Rule 97 C.P.C. and the objections filed by the third party cannot be considered, is over-ruled. To the extent it holds that the objections filed by the decree-holder to the obstruction caused by the third party can be treated as an application under Order 21 Rule 97 C.P.C. is confirmed as it is in conformity with the provisions contained in Order 21 Rules 36(1) and 97 co 104 CPC.
c) The decision in Chandrakant Mallappa Desai's case is affirmed as laying down the law correctly.
Accordingly, Points 1 and 2 raised for determination in this case are answered as follows in the affirmative:
Point No. 1
'It is open to the person in possession of an immoveable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued; or to obstruct the execution of the delivery warrant.'
Point No. 2
'The executing Court cannot proceed further in the execution without determining the objections filed by such a person in terras of Rules 98 to 103 of Order 21 of the C.P. Code in the same manner as a suit, irrespective of the fact whether or not an application is filed by the decree-holder for removal of obstruction under Rule 97 of Order 21 C.P.C.'
POINT No. 3
26. It is open to the person in possession of an immoveable property in his own right and not through a Judgment debtor to resist execution and establish his right, title and interest to the immoveable property which is the subject matter of the decree for possession or order for eviction. He need not wait until he is dispossessed in the execution of the decree for possession or order of eviction. In the event objections are filed by such a person, the executing Court shall have to decide the same in the same manner as a suit. It is also open to him to file a suit for declaration of title and permanent injunction before the decree for possession or order of eviction is put into execution or to file a suit for possession on the basis of his title, if he fails to resist the execution or does not get an opportunity to resist execution.
27. Consequently, the C.R.P. is allowed. The order dated 24-8-1989 passed by the learned Additional Small Causes Judge, Bangalore City (S.C.C.H.3) in Ex.No. 4737/ 1989 is set aside. The Court below is directed to decide the objections filed by the petitioner to the execution petition in accordance with law.
28. In the facts and circumstances of the case, there will be no order as to costs.