1. This group of Civil Revision Applications arises from common order passed by District Judge-1, Osmanabad, on 16.1.2013 (hereinafter referred as impugned order), in group of Misc. Civil Appeals having Nos.50/2012 to 60/2012. The common order was passed in Misc. Civil Appeal No.51/2012 and the copies of the order were kept in other Misc. Civil Appeals. Counsel for both sides have submitted that, in all these appeals, the parties are common except for respondent No.9, the obstructionist in the execution proceedings. Both the counsel argued by referring to the Petition in Civil Revision Application No.49/2013 and agreed that, rest of the Revision Applications have similar facts and points of law involved. I will refer to the petition and documents from Civil Revision Application No.49/2013.
2. In a sentence, what has happened in these matters is that, in the course of execution filed by the decree holder to recover possession from the judgment debtor, various obstructionists filed applications under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C. for short) and decree holder compromised with the obstructionists and executed sale deeds in favour of the obstructionist, who were lessees of the judgment debtor. Application was filed to executing Court to permit execution of sale deeds and same was granted. Judgment debtor has carried appeals to District Court claiming that the Court could not have endorsed permission to let decree holder and the obstructionists enter into such sale deeds in view of the compromise done in the Lok Adakat. The applicant, one of the decree holder objected to the maintainability of the appeals and filed applications. Applications (Exh.14 in M.C.A. No.51/2012) were rejected by common order dated 16.1.2013 and hence the present revisions.
3. A few facts need to be referred.
Case of the Applicant is that:
(A) The applicant along with other plaintiffs of Regular Civil Suit No.77/1967 had suffered land acquisition, in which from their Survey No.107 at Kallam, admeasuring 11 acres 17 gunthas, the Government acquired 1 acre 26 gunthas land for Kallam Dhoki Road and 8 acres 18 gunthas land for the market committee of respondent No.1. In the course of acquisition proceedings, the whole land of the applicant and his family was taken and given to the market committee. Consequently, Regular Civil Suit No.77/1967 was filed. The suit was filed claiming that 1 acre 32 gunthas land in excess had been taken away without being part of acquisition. The suit was contested and Civil Judge, Senior Division, vide judgment and order dated 2.5.1969, passed judgment (Exhibit A) and decree that, in execution the 1 acre 26 gunthas acquired for the road and 8 acres 18 gunthas acquired for the market committee be got identified by measurement through D.I.L.R. and the remaining land of plaintiffs may be recovered by the plaintiffs. The applicant â decree holder filed Regular Darkhast No.67/1980 (Exhibit B). The respondent No.1 market committee raised objections in respect of the measurements carried out in the execution proceedings and the matter was taken to the High Court in Civil Revision Application No.565/1994, later converted into Writ Petition No.1971 of 2007. The High Court directed on 30.6.1980 to expedite final disposal of the Darkhast and to issue warrant of possession. According to the applicant, the respondent market committee filed Review Petition No.138/2010 which was dismissed on 24.8.2010. Special Leave Petition No.26369-26370 of 2010 filed before the Honble the Supreme Court also came to be dismissed. Thereafter, to prolong the litigation, objections petition came to be filed on 21.12.2011 (Exhibit C) under Order XXI Rule 97 through respondent No.9, claiming that he was in possession over the area of 15 ft. x 40 ft. out of Survey No.107 as lessee of the market committee and was in possession for last 15 years and had done construction over the plots and was doing business there.
(B) Applicant claims that, in the Misc. Application there was settlement between the applicant and respondent No.9 that for the area in possession of the obstructionist, as mentioned in the application, the same would be sold to the obstructionist taking permission of the Court and the obstructionist will withdraw the said Misc. Application. The compromise was signed by the parties on 4.3.2012 in the Lok Adalat and was accepted by the Judges of the panel. Accordingly, the said application came to be disposed of. The compromise and order passed in the Lok Adalat (Exhibits D and E) had been filed. In view of the clause in the compromise to seek permission of the Court to execute sale deed, application Exh. 22 in M.A. No.380/2011 was filed in the Execution Court with reference to M.A. Nos.367/2011, 369/2011, 372/2011, 379/2011, 380/2011, 28/2012, 90/2012, 91/2012, 92/2012, 93/2012 and 95/2012 that there has been a compromise and as per the compromise, Court may permit the parties to execute the sale deed. The Executing Court passed following order (Exhibit G):
âThe parties have settled their dispute in M.A. mentioned in the application in Mahalokadalat on 04/03/2012. The detailed compromise petition and order thereon is also in M.A. mentioned in this application. Hence as per order passed in M.A. about terms and condition of the said compromise, parties are permitted/ allowed to execute the registered sale deed as agreed in the compromise and order took place in Mahalokadalat dated 04/03/2012. Application is allowed with above observations. There is no stay brought to the notice of this Court till passing of this order.â
(This order I will refer as âconcerned orderâ)
(C) According to the applicant, after above order was passed, there has also been execution of the sale deed in favour of the obstructionist â respondent No.9. According to applicant, respondent No.1 market committee has no ownership over the land concerned and only with an intention to protract, filed the Misc. Civil Appeals. The concerned order dated 3.4.2012 was only to the effect of grant of permission to the decree holder and obstructionist to enter into document of sale and still respondent No.1 market committee filed the Misc. Civil Appeals (Exhibit H). In the appeal, the applicant filed application Exh.14 objecting to the tenability of the appeal on the basis that, although the appeal has been registered as under Order XLIII of the C.P.C., what was challenged was order permitting the sale between parties in terms of compromise and no appeal was maintainable. The respondent market committee objected vide Exhibit J, and the District Judge, after hearing the parties, rejected the application without deciding the objections regarding maintainability of the appeal. Grounds are raised that the appeal filed was not maintainable under any of the provisions of C.P.C.
4. I have heard counsel for both sides. The learned counsel for applicant submitted that, in execution, after measurements, portion of land in excess was identified and when the decree holder wanted to take possession, the persons to whom the market committee had leased parts of the property, objected to the execution claiming rights. According to him, when they filed such objection applications under Order XXI Rule 97 of C.P.C., the matter was referred to the Lok Adalat and in the Lok Adalat, compromise took place that the decree holder will execute sale deeds of the portions possessed by the obstructionist and the obstructionist will withdraw their objections. In the compromise, it was recorded that, after the decree holder receives the amount agreed, the sale deed would be executed taking permission of the Court and in view of this, the application Exh. 22 (Exhibit F) was filed and the concerned order (Exhibit G) came to be passed, which has been challenged before the District Court. The submission of the counsel is that, the appeal tendered (Exhibit H) claims that it is appeal under Order XLIII of C.P.C. According to the counsel, the order challenged would not fall under Order XLIII or Section 104 of C.P.C. It is claimed that the respondent No.9 obstructionist had filed application under Order XXI Rule 97 of C.P.C. in which the order objected came to be passed permitting sale deed between decree holder and the obstructionist. The counsel submitted that, this order did not amount to adjudication and so, it was not an order even under Order XXI Rule 98 of C.P.C. which could be treated as decree under Rule 103. He submitted that, in this view of the matter, the Misc. Civil Appeal filed before the District court was not at all tenable. The District Judge, without going into the nature of the order passed, simply observed that, there was no provision to grant order seeking permission to sell land and that the proceedings between decree holder and obstructionist was offshoot of the proceedings under Order XXI Rule 97 as the compromise affected right of the respondent market committee and so they could challenge it. The learned counsel submitted that, every order in proceedings under Order XXI Rule 97 of C.P.C. does not become appealable. Even when it is an order covered by Rule 98 read with Rule 101, it would be a decree against which regular appeal would lie. Even in that contingency, according to the counsel, present Misc. Civil Appeal could not be maintained. He of course insisted that the order was not decree which could be appealed from.
5. Learned counsel for respondent No.1 market committee referred to the development of the litigation from beginning. According to him, the obstructionist who were lessee of the market committee, behind the back of the market committee, compromised with the decree holder. The concerned order against which the Misc. Civil Appeal was filed, was not passed hearing the market committee. The application for permission was filed on 3.4.2012 (Exhibit F) and on same day, the concerned order came to be passed. The learned counsel for market committee submitted that, according to him, the appeal was maintainable and the concerned order should be read under Order XXI Rule 97 read with Rule 101 of C.P.C. and thus, appealable in view of Rule 103. He relied on the case of Smt. Santilata Paul Vs. Nanda Kishore Mukherjee reported in AIR 1981 Calcutta 219 , Shripati Ganpati Jadhav and ors. Vs. Chandrakant Ganpati Jadhav and ors. reported in 2011(2) Mh.L.J. 689 and Shir Mir Karimoddin Ajmoddin Kavjang and ors. Vs. Shri Kashinath Bhimsen Ingale and ors. reported in 1982(1) BOM.C.R. 182 . According to him, all questions between the parties in application under Order XXI Rule 97 of C.P.C. were required to be decided by the Executing Court and thus, the appeal was maintainable as without hearing the judgment debtor the permission was granted to the decree holder.
6. Question is:
Whether the impugned order passed by the District Court rejecting the application of the applicant is illegal or suffers from material irregularity?
7. The appeal (Exhibit H) claimed that it was an appeal under Order XLIII of C.P.C. against the order in M.A. No.380/2011, passed on 3.4.2012, granting permission for sale. Section 104 of C.P.C. reads as under:
â104. Orders from which appeal lies:-
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-
(ff) an order under section 35-A;
(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this Section.â
8. Counsel for respondent No.1 Judgment Debtor did not submit anything that the concerned order is covered under any of the Sections referred in above clauses (ff) to (h).
9. Now question is whether it falls under any of the rules from which appeal is expressly allowed. For this, when I resort to Order XLIII, rules relevant to Order XXI are in clause (f) to (ja) as under :
Rule 1. Appeals from orders :- An appeal shall lie from the following orders under the provisions of Section 104, namely :-
. . . . . . . . .
. . . . . . . . . .
(f) an order under rule 21 of Order XI;
(g) . . . . . .
(h) . . . . . . .
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.â
Order XXI Rule 21 relates to simultaneous execution against the person and property. Order XXI Rule 34, relates to decree for execution of document or endorsement of negotiable instrument. These are not the cases here. Concerned order does not even relate to Order setting aside or refusing to set aside sale under XXI Rule 72 or Rule 92.
10. The concerned order does not relate to rejecting of an application under Rule 106 dealing with orders passed in the context of Rule 105 or Rule 23. It is clear that, the concerned order before the District Court does not fall under any of these provisions. The appeal itself claimed that it was under Order XLIII of C.P.C. However, it is apparent that the concerned order does not fall under the provisions of Order XLIII of C.P.C.
11. At the time of arguments of the appeal, learned counsel for respondent No.1 market committee appeared to have realized difficulty in defending the impugned order of the District Court under Order XLIII of C.P.C. and thus submitted that the appeal was covered under Order XXI Rule 97 read with 101 of C.P.C. Relevant parts of Order XXI Rules 97, 98 and 101 read as under :
97. Resistance or obstruction to possession of immovable property:-
(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication :-
(1) Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2),
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) . . . . . . .
. . . . . . . . . .
101. Question to be determined:
All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions.â
12. If above Rule 101 is kept in view and the concerned order which was impugned before the District Court is perused, it can be seen that the granting of permission by the Executing Court to the decree holder and obstructionist did not relate to adjudication of right, title or interest in the property. It was not even adjudication of any of the questions raised between the parties relevant to the adjudication of the application under Rule 97. The Court simply endorsed the compromise which had been recorded in Lok Adalat and while endorsing the same, in view of the terms in the Lok Adalat, recorded its permission to execute the sale deed. Such order passed by the Executing Court could not be said to be adjudication of the rights of the parties so as to be treated as a decree which could be appealed. Decree holder in fact need not even have sought permission and could have taken notional possession and then execute the sale deeds in favour of obstructionists.
13. The learned counsel for the applicant has rightly submitted that even if the respondent No.1 market committee was to claim that the concerned order was under Rule 97 read with 98, regular appeal would lie under Section 96 and not Misc. Appeal under Section 104 read with Order XLIII.
14. I have gone through the rulings relied on by the learned counsel for respondent No.1 market committee. The judgments lay down that applications under Order XXI Rule 97 adjudicated under Rule 98 or Rule 100 are to be treated as decree and appealable. However, in the present matter, the facts are different. The order challenged before District Court cannot be said to be a decree as there was no adjudication of rights or disputes between the parties.
15. Learned counsel for the applicant has filed copy of the execution proceedings Regular Darkhast No.67/1980 to submit that after the order challenged before District Court was passed, in the execution, the decree holder has got possession warrant executed for 1 acre 13 gunthas land as per the map Exh.25 and has executed possession receipt and thereafter the Darkhast has been disposed also. According to the counsel, the respondent No.1 market committee who was judgment debtor, has already filed suit against the decree holder and State which, according to the learned advocate, was the correct remedy and not the present appeal before District Court. Thus, according to him, nothing survives in the matter relating to the execution.
16. For reasons recorded in the earlier paragraphs, I find that the impugned order of the District Court cannot be said to be legal. The District Judge did not examine the impugned order and the provisions of law. District Judge was aware that the order does not fall in the ambit of Order XXI Rule 97 and referred to the same as an offshoot of proceedings under Order XXI Rule 97 of C.P.C. District Judge did not record as to how for order in such offshoot Order XLIII of C.P.C. could be invoked. The order of District Judge is not at all maintainable. The appeal filed before the District Judge by respondent No.1 market committee is not maintainable. The above applies to all the appeals concerned referred above.
17-(A). For above reasons, all the revision applications are allowed. The impugned common order dated 16.01.2013, passed by District Judge-1, Osmanabad in Misc. Civil Appeal No.51/2012 (50/2012, 52 to 60/2012) is quashed and set aside.
(B) The Misc. Civil Appeals No.50/2012 to 60/2012 pending before District Judge-1, Osmanabad between the parties are rejected as not maintainable.