1. Heard both sides.
2. The third party-petitioner has filed this revision aggrieved by the orders passed in E.A.No.128/93 in E.P.No. 51/92 in O.S.No. 699/90 on the file of XI Assistant Judge, City Civil Court, Secunderabad, dated 15th March, 1996 rejecting the petitioner's application filed under Order 21 Rule 97 C.P.C.
3. Mr. M.A.Shakoor, the learned Counsel for the petitioner submits that the petitioner was in occupation of Ihe premises bearing Municipal No. 11-2-165 and 166 situated in Mylargadda, Secunderabad, in his own right as tenant of the 2nd respondent. Earlier, he had fileda suit in O.S.319/1993 on 12-10-1993 against the respondents on the file of the III Additional Judge, City Civil Court, Secunderabad and obtained orders of 'Slants-quo' in I.A.No.1868/1993, dated 12-10-1993 and he brought the Status-quo order passed by the learned Judge to the notice of the Court and that he is not bound by the decree which is sought' to be executed in respect of the premises on the ground that he is the tenant of the 2nd respondent as the property belongs to her and she is the landlady and that he was in possession even prior to the passing of the decree in O.S.No.699/1990, from 1984 onwards and that he has filed the suit for declaration of his tenancy and cancellation ofdecree in O.S.No. 699/1990 as beingfraudulent.
4. It is submitted by the Mr. P. Venugopal, the learned Counsel for the 1st respondent, that the said application was resisted by Respondents 1 and 2. That the 1st respondent became the absolute owner of the malgi bearing No. 12-2-166, Mylargadda, Secunderabad under a registered gift deed dated 31-7-1981 represented by her mother and guardian, P. Bharathi Bai (2nd respondent) and from the date of transfer of the said malgi, she is in possession and enjoyment of the property and the 2nd respondent was only the guardian acting on her behalf and immediately after she became the absolute owner of the malgi, her mother /. e. 2nd respondent, intimated to her tenant late Smt. Zeenath wife of 3rd respondent who was in occupation of the said malgi and running a Typewriting Institute and started paying rents to the 1st respondent from 1-8-1981 onwards and that the said Smt Zeenath died in the year 1989 and after her demise, her husband 3rd respondent became her tenant. He further executed a fresh lease deed dated 15-4-1989 in her favour agreeing to pay the monthly rent. Later, the petitioner terminated the tenancy and instituted a suit for ejectment in O.S.No. 699/1990 in which the 3rd respondent was set ex parte and an exparte decree was passed on 19-2-1990 and E.P.No. 51/92 was filed and warrant of delivery was obtained on 30-7-1992. While at the time of execution of the warrant, the third respondent set up a plea mat the said malgi was shown as 11-2-66 whereas thesaidmalgi was bearing Municipal No. 11-2-166 and in view of the said protest, the Court Bailiff did not deliver vacant possession of malgi to this respondent; but noted the protest in his report dated 4-8-1922. Later, the 3rd respondent filed I. A.No. 932/1992 seeking condonation of delay of 107 days and to set aside the ex parte decree and the same was dismissed by the said Court on 11-12-1992 on merits, against which hepreferred C.R-P.No. 4100/1992 be fore this Court, which was dismissed on merits on 8-9-1993. During the pendency of the said C.R.P., the third respondent paid the respondent a sum of Rs. 38,190/- including anamount of Rs. 13,190/- through cheque which was deposited before the Court below and the same was withdrawn by the 1st respondent. The petitioner who is the brother of the deceased Smt. Zeenath and brother-in-law of the 3rd respondent in collusion has filed the present petition before the Executing Court on the ground that he was the original tenant of the respondent after LA. No. 1868/1993 in O.S.No. 319/1993 was dismissed which was for injunction restraining the first respondent from dispossessing, the petitioner, from the malgi.
5. It is also submitted by Mr. P. Venugopal appearing for the first respondent that she also filed counter before the executing Court to the effect that petitioner is not at all tenant of the premises and that Respondent No.l is the owner of the mulgi No. 11-2-166 and she was only natural guardian of the first respondent and the deceased wife of the third respondent was the tenant and after her death, the third respondent continued as the tenant in the said malgi and also executed a fresh lease deed in favour of the first respondent.
6. The undisputed facts are that the first respondent filed the suit O.S.No.699/90 on the file of the XI Assistant Judge, City Civil Court, Secunderabad against the third respondent for ejectment in respect of the suit malgi bearing No.11-2-166, Mylargadda, Secunderabad. The said suit was decreed ex parte on 19-2-1990. The first respondent filed E.P.No.51/92 on the fife of the executing Court and obtained warrant of delivery of possession on 30-7-1992. When the Court bailiff went to the premises on 1-8-1992 it is stated that the petitioner was present at the suit premises and he requested the Court bailiff to grant him half-an-hour time to call to the third respondent and went away, but did not return. In the meantime, the brother of the third respondent-Judgment Debtor came to the spot and objected that the premises No. 11-2-66 is wrongly mentioned in the warrant. The correct number of the premises is 11-2-166. As the objection was raised, the bailiff returned the warrant of execution after holding panchnama at the spot. Again, it isstated by an application filed by the first respondent, the executing Court corrected the malgi number in the warrant of delivery of possession as it was a typographical error. Again when the warrant was sent for execution on 11 -10-1993, the bailiff returned the warrant unexecuted with a report that the shop was locked. As the bailiff has returned without executing the warrant of possession, the third respondent filed I.A.No.932/93 in the suit to set aside the ex parts decree passed against him together with an application for condoning the delay in filing the petition to set aside the ex parte decree. In the said application it is stated that he admitted to be tenant of first respondent. The said application was dismissed by the trial Court on 11-12-1992. Aggrieved by the same, the third respondent preferred C.R.P.No.4100/92 before this Court. After hearing, the said C.R.P. was dismissed on 8-9-1993.
7. After the dismissal of the above said C.R.P., the first respondent again took the warrant of delivery of possession after correcting the malgi No. as 11-2-166. On11-10-1993, the bailiff could not execute the warrant of delivery of possession, as the said malgi was locked. Hence the warrant of delivery of possession was returned on12-10-1993 by the bailiff.
8. On 12-10-1993, the petitioner preferred O.S.No.319/93 on the file of the 111 Additional Judge, City Civil Court, Secunderabad with a prayer to declare that he is a tenant in respect of the premises 11-2-165/166 other reliefs. In I.A.No.1868/ 93, the said Court granted status quo on 12-10-1993. After contest by the Respondent Nos.l and 2 in the said suit, the status quo orders passed by the Court in I.A.No.1868/93 was vacated on 29-11-193, but two days later i.e. on 14-10-1993, the petitioner preferred E.A.No.128/93 under Order 21, Rule 97 read with 151 C.P.C. to disallow the execution of the decree in O.S.No.699/90 in E.P.No.51/92 on the ground that the suit O.S.319/93 has been filed by him on 12-10-1993 against the respondents therein on the file of the III Additional Judge, City Civil Court andobtained orders of status quo in I.A.No. 1868/93, dated 12-10-1993 and the first respondent is trying to execute the decree. The petitioner also stated that Respondent No.2 is not entitled under law or on facts to execute the decree in E.P.No.51/92 against the petitioner as the said decree in E.P.No.51/92 is not binding on him. The petitioner is in occupation of premises bearing No.l 1-2-165/166, Mylargadda, Secunderabad in his own right as a tenant of Respondent No,2 as the said property belong to Respondent No.2 and she is the landlady of the said premises and that he is in possession of the said property even prior to the passing of the decree in O.S.No.699/90 i.e. from 1984. It is also stated in the affidavit that the said O.S.No.319/1993 was filed for declaration of the petitioners tenancy and for cancellation of the decree in O,S.No.699/90 which lias been fradulently obtained by Respondent No. 1 and that he is not bound by the decree and he is not a party in the said suit.
9. It is significant to note that the petitioner though filed a separate regular suit in City Civil Court seeking a comprehensive decree for declaration that he is the tenant of the said malgi and that the decree in O.S.No.699/90 lias been obtained by fraud, after a couple of days he approached the executing Court by filing E. A.No. 128/93 under Order 21, Rule 97 read with 151 C.P.C. to disallow the E.P. execution of decree in O.S.No.699/90 in E.P.No.51/92 reiterating the facts mentioned in his suit before the III Additional Judge, City Civil Court, Secunderabad.
10. From a perusal of the report of the bailiff, a copy of which has been supplied to the Court by the learned Counsel for the petitioner, it is observed in E.P.No.51/92 that the bailiff went to the suit premises for execution of warrant of delivery of possession on 4-8-1992. The petitioner was present at the premises and he stated that he will call the third respondent and requested time for half-an-hour. In the meantime, the report states that brother of the third respondent approached and he raised objection that the number of the malgi 11-2-66 is wrongly mentioned in thewarrant of execution, but the correct number of the premises is 11-2-166. At that stage, bailiff of the Court conducted the panchnama and returned the warrant of execution to the Court. Later third respondent preferred interlocutory application before the trial Court to set aside the ex parts decree passed against him in O.S.No.699/90 along with condone delay application I.A.No.932/92 under Section 5 of the Limitation Act to condone the delay of 107 days in filing the application to set aside the ex parts decree. The said application was dismissed by the trial Court and aggrieved by the said order, the third respondent preferred C.R.P.No.4100/92 before this Court which was also ultimately dismissed on 8-9-1993. The petitioner kept quite as a spectator observing the proceedings initiated by the third respondent to contest the ex parte decree and the moment the application to condone the delay of setting aside the ex parte was dismissed by the High Court, the petitioner set up himself alleging that he is in possession of the property from the year 1984 in his own right as a tenant and filed O.S.No.319/93 on 12-10-1993 seeking declaration that petitioner is the tenant of Respondent No.2 in the suit premises and that the decree passed in O.S.No.699/90 on the file of the XI Assistant Judge, City Civil Court, Secunderabad dated 19-2-1990 was obtained by fraud and that the injunction be granted restraining the first respondent from dispossession the petitioner. The said Court granted status quo orders on 12-10-1993. In the meantime, the petitioner again approached the executing Court to disallow the execution of the decree in E.A.No.128/93. It appears that the present petition is a result of collusion between the third respondent and the petitioner.
11. From the facts in this case it reveals that the petitioner claims to be the brother of deceased-Zeenath, who was the tenant in the suit premises and who died in the year 1989, but curiously enough the petitioner claims to be the tenant of the suit premises from the year 1984. Third respondent after the death his wife Zeenath, executed a lease deed dated 15-4-1989 of the premises and continued to be tenant. The first respondent determined thetenancy by issuing notice under Section 106 of Transfer of Property Act, for ejectment of the said premises and ex parte decree was passed on 9-2-1990. Had the petitioner been genuinely interested in claiming his rights of tenancy in the suit malgi he would have approached the Civil Court, by filing suit or approached the executing Court, as he did not know at the very first instance, that his alleged tenancy rights came under cloud, but he kept quite without initiating any action to safeguard his alleged right, if any. The relationship between the third respondent and the petitioner is not disputed.
12. Mr. M.A.Shakoor, learned Counsel for the petitioner, relying on a decision of this Court in Smt. Tahera Sayeed v. Shanmugan, AIR 1987 AP 206, vehemently contended, that with regard to application of Order 21 Rule 97 and inherent powers of the Court, though the petitioner filed a regular suit O.S.No.319 of 1993 on the file of m Additional Judge, City Civil Court, Secunderabad, for declaration of his tenancy and cancellation of the decree in O.S.No.699 of 1990 passed by the XI Assistant Judge, City Civil Court, Secunderabad dated 19-2-1990 alleging it to be fraudulent, yet he can invoke Order 21 Rule 97 of C.P!C. and file an application to determine his right, title or interest in the suit property, as he is not a party to the decree which is said to be executed. As the petitioner has filed an E.A, under Order 21 Rule 97 read with Section 151 of C.P.C. when resistance of delivery of possession of the decree-holder is made, the same has to be considered by the Court below. Under Order 21 Rule 101 of C.P.C. dealing with the question, relating to title and interest in the property arising between the parties to a proceeding on an application under Rule 97 or 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with those applications and not by a separate suit for this purpose. In view of the above two Rules i.e. Rule 97 and 101 of Order 21 the Court has to go into the question of right, title or interest of the petitioner and cannot summarily reject the application without investigating the rights ofthe parties, by relying on the judgment dated 29-11-1993 in I.A.No.1868 of 1993 in O.S.No.319 of 1993 passed by the III Additional Judge, City Civil Court, Secunderabad.
13. The enquiry that has to be made by the executing Court under Rule 97 of Order 21 C.P.C. is before the dispossession of the property and the enquiry that has to be made under Section 99 of C.P.C. is after the dispossession of the property. According to the submission of Mr. Shakoor, the petitioner is resisting the claim of the first respondent for execution of the decree in two Courts one by way of independent suit filed before the III Additional Judge, City Civil Court, Secunderabad and also before the executing Court by filing an E.A., the present proceedings, hi Tahera Sayeed's case (supra) His Lordship K. Ramaswamy, J. while interpreting Order 21 Rule 97 held as follows :
'(8) Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. Irt Savamma v. Radhakrishna Moorthy, (1985) 1 Andh. LT 436, I held that the faith for the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause dis-illusionment to the people in the efficacy of law. The acts of the Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to holdthat when 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 immovable property and files an application under Order 21 Rule 97, 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 that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree', and the Court is 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. This approach is consistent with Ubi jus ebi remidium shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of Respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.
(9) Even otherwise, the inherent power under Section 151 of the Code also successfully be invoked by the petitioner. The inherent power is in addition to the power which the Court is already possessed of. Procedure is not a vested right. It is to be tailored (to ?) attune to the ends of justice. Inherent power is intended to be exercised to prevent miscarriage of justice, or abuse of the process of the Court. Order 21, Rule 97, if interpreted strictly, could be available only when the decree-holder or purchaser chooses to make avail of. Instead, if he persists in execution under Order 21 Rule 35, against a third party not bound by the decree, on issue of Warrantin Form XI of Appendix E of the Schedule to the Code, the bailiff is bound to execute the decree and deliver physical possession under relevant Clauses (1) to (3) thereof; if necessary by assault or by use of criminal force. Thereby the procedure aids abuse of the process enabling the decree-holder or the purchaser to over-reach his object to saddle himself in possession of the immovable property depriving the person in possession but not bound by the decree of his valuable right to property. Procedure is but the machinery of law - the channel and means whereby law is administered and justice reached. All procedure, therefore, is an armour to effectuate the right to property. Procedural safeguard is an ingrained facet of fair play in action to subserve the legal right and not to extinguish it. The highest duty of a Court is to take care that its act does not injure a suitor. Thus, in a given situation, as stated earlier, if inherent power is not exercised by the Court is to modulate its procedure, it would facilitate heaping injustice upon a rightful person. Though Order 39, Rule 1 provides for issue of an order of ad interim injunction, when a given case is not expressly come within its four corners, the Supreme Court in Shanknr Balaji v. State of Maharashtra, : (1962)ILLJ119SC held that injunction could be issued in exercise of inherent power. In A. Kasamma v. P. Bmmammba, (1967) 2 Andh. WR 260 a Division Bench of this Court exercised inherent power and set aside the excessive sale in execution though the sale was made in conformity with law. In Punjab Mercantile Bank v. Kishan Singh, , when the property was purchased for inadequate price due to confabulation between the judgment-debtor and the purchaser, the sale was set aside by exercising inherent power, though the claim is barred. In Kannappa v. Stinivasan, : AIR1960Mad499 when the decree-holder failed to inform the Court of the receipt of part of the decretal amount and yet the sale was proceeded with for recovery of the decree amount, inherent power wasexercised and the sale was set aside. In Mubarak Begum v. Sitshil Kumar, AIR 1957 Raj. 1543 when fraud was played on the Court, inherent power was exercised and sale was set aside. Similar is the view in Kandaswaim v. Narasimha Aiyar, : AIR1952Mad582 . In PankajKnmar v. Nani Bala Palhira, ILR (1968) 1 Cal. 43 the Division Bench had held that though the person vitally interested in the property has no locus standi to file the application, when fraud is brought to the notice of the Court, inherent power was exercised and sale was set aside, hi Savamma's case (1985) I Andh. LT 436, the plaintiff, tenant, in collusion with the landlord filed a suit for injunction and obtained a direction to appoint a Commissioner to be present for constructing the compound wall and eaves thereon and accordingly it was done. Subsequently, the suit was got dismissed, Defendant filed an application for restitution after lapse of some time. The trial Court dismissed the application on the ground that the Court became functus officio and the remedy is to file a suit for mandatory injunction for demolition. When revision was filed, this Court has held that the need to exercise inherent power stems from and its breath is co-extensive with its necessity to undo injustice. When the injustice is starting on the record, abuse of the process is manifest, this Court cannot keep its hands back and be oblivious to obvious abuse of judicial process saying that revisional power would merely stop at the gateway of discretionary domain of the Courts below and be a passive spectator gasping to enter into and allow the abuse to subsist thereby relegate the party injured to a tardeous separate suit. When the facts poignantly portray the pugnacious effect on the efficacy of judicial process, refusal to redress the injury tacitly feeds otherwise curable tendency to abuse the process of the Court. It was held that it is incumbent and may (nay ?) indeed the duty of the Court to undo injustice by exercise of the inherent power. In the light of the above law and the effect of the failure to exercisethe power, it would necessarily to be concluded that in an appropriate case, inherent power is to be exercised though not in routine but sparingly to prevent abuse of the process of the Court or fraud on the Court or to meet the ends of justice.
(10) Accordingly, I hold that the application of the petitioner could be treated as one filed under Section 151 of the Code and the procedure envisaged under Order 21 Rule 98 and 101 is to be followed treating it to be a decree under Order 21 Rule 103 of the Code.
14. The learned Judge has specifically held in para 10 of the judgment that the application of the petitioner could be treated as one filed under Section 151 C.P.C. and the procedure envisaged under Order 21 Rules 98 and 101 C.P.C. is to be followed treating it to be a decree under Order 21 Rule 103 C.P.C. The learned Judge has specifically stated that Order 21 Rule 97 C.P.C. if interpreted strictly could be available only when the decree-holder or purchaser chooses to make avail of. hi para 9 it was observed that the inherent power under Section 151 C.P.C. can also successfully be invoked by the petitioner. The procedure is a machinery of law - the channels and means whereby law is administered and justice is reached. All procedure, therefore, is an armour to effectuate the right to property. Procedural safeguard is an ingrained facet of fair play in action to subserve the legal right and not to extinguish it. The highest duty of a Court is to take care its act does not injure a suitor. Thus, in a given situation, as stated earlier, if inherent power is not exercised by the Court to modulate its procedure it would facilitate heaping injustice upon a rightful person.
15. From the above it is clear that the inherent power of the Court can be invoked to adjudicate justice between the parties and the procedural law is not for negating justice to the parties. The facts of the above cited decision were altogether different to the facts of the case on hand.
16. Mr. Ventigopal, learned Counsel for the first respondent decree-holder resisted the contention of Mr. Shakoor that Order 21 Rule 97 C.P.C. is available to a person 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 application to the Court but, here the petitioner is not a decree-holder or purchaser or the property sold in execution of a decree and therefore he has no right to file the application under Order 21 Rule 97 C.P.C. nor he can take the aid of Section 151 of C.P.C. He also submits that the petitioner cannot have the benefit of simultaneous reliefs before two Courts i.e., one before the III Additional Judge, City Civil Court, Secunderabad, by filing O.S.No.319 of 1993 and another one before the executing Court i.e. XI Assistant Judge, City Civil Court, Secunderabad in E. A.No. 128 of 1993. In O.S.No. 319 of 1993 the petitioner's prayer is declaration of his tenancy in the suit premises and for cancellation of the decree obtained by Respondent No.l and on the ground of fraud and perpetual injunction restraining me Respondent No.l from executing the decree. He further submits that the petitioner having invoked the remedy of filing a suit before the III Additional Judge, City Civil Court, Secunderabad, for declaration of his rights and seeking interim order of status quo restraining Respondent No.l from dispossessing the petitioner from the suit premises and after the Interlocutory Application in the suit was dismissed he subsequently approached the executing Court to disallow the execution of decree which has been validly obtained and the matter was finally culminated in this Court between the parties in C.R.P.No. 4100 of 1992.
17. It is also submitted by Mr. Venugopal that the action and attitude of the petitioner in the present proceedings is the result of collusion with Respondent No.3 and the Respondent No.3 is Ihe husband of the deceased tenant late Zeenath, who was the former tenant of the first respondent and later on her death in the year 1989 the Respondent No.3 became atenant and also executed a lease-deed dated 15-4-1989. The petitioner claims to be in possession of the property from 1984 and it is admitted, that he is the brother of the deceased Zeenath and it is not shown how he has been inducted in the suit premises. He relies on a judgment of the Supreme Court in Kazi Akeel Ahmed v. Ibrahim and another, 1996 (3) Supreme 739 wherein their Lordships have held as under:
'We have given serious consideration to the facts of the present case and the submissions made by the learned Counsel for the appellant. It is true that when an application under Order 21 Rule 97 of the Code is made, it contemplates an investigation into the claim made in the application, in accordance with the provisions contained in Rule 98 and the rules following thereafter. But in the special facts and circumstance of the present case, we see no reason to hold such an enquiry or investigation as the same would be a futile exercise in view of the feet that Civil Suit instituted by the Respondent No.2 Girraj making the same claim as has been made by him in his application under Order 21 Rule 97 has been dismissed by the Civil Court on November 2, 1995. A perusal of the said judgment goes to show that the Respondent No.2 Girraj was unable to produce any evidence, oral or documentary, to prove that he was holding the shop in question as a tenant in his own rights. These facts clearly go to show that the claim of the Respondent No.2 that he is a tenant is wholly fictitious and without any foundation and it was for this reason that the suit had been dismissed with costs to the tune of Rs.2,000/-. Having regard to these facts and circumstances, we find absolutely no merit in the application of Respondent No.2 resisting the execution of the decree validly passed by a competent Court of law.'
18. Relying on the above decision, the learned Counsel for the first respondent submits that the principles laid down in the said decision are also applicable to the facts of the presentcase and hence there is no illegality in the order passed by the lower Court as it has considered all the aspects as the petitioner is not holding any tenancy rights in the suit premises, and dismissed the petitioner's claim. In view of the above, the facts though not analogous, the decision of the Apex Court applies to this case, he contended and no illegality has been perpetuated by the Court below.
19. To appreciate various contentions of the learned Counsel it is useful to extract the relevant provisions of C.P.C. which are attracted herein below.
'Order 21 Rule 97(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.
Rule 98(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) Whereupon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency ofthe suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
Rule 99(1) : Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Rule 100 : Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination,-
(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.
Rule 101 : All questions (including questions relating to right, title or interest in the property) arising between the patties 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.
Rule 102 : Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Rule 103 : Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made 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 104 : Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.'
20. A bare reading of the above provisions show that they are couched in simple English.
21. Order 21 Rule 97 reflects that when a decree holder or purchaser of such property sold in execution of a decree at the time of taking possession is resisted or obstructed by any person, he may make an application to the Court complaining of such resistance or obstruction and where such an application is made, the Court shall have to adjudicate upon the application on the rights of the parties.
22. Order 21 Rule 101 reflects that the order passed by the executing Court under Rules 101 and 103 shall be subject to the result of the suit, if any pending for establishing the right of the petitioner.
23. Order 21 Rule 104 reflects that every order made under Rules 101 and 103 shall be subject to the result of any suit that may be pending on the date of commencement of proceedings in which such order is made, if insuch suit the party against whom the Order 21 Rules 101 or 103 is made has sought to establish a right which he claims to be in possession of the property.
24. Considering the circumstances of the case, it has to be seen that, whether the petitioner can invoke the inherent provisions of the Court to seek investigation of the enquiry in the E.A. applying the principles in Tahera Sayeed's case (supra). It is clear from the record that a decree in O.S.No.699/93 dated 19-2-90 was obtained by Respondent No.l against Respondent No.3 in respect of the suit premises on the ground that he was a tenant and for ejectment of Respondent No.3. In E.P.No.51 of 1992 in O.S.No.699 of 1990 filed by the petitioner, warrant of delivery of possession was issued by the Court below on 1-8-1992. When the bailiff went to the spot (shop) for delivery of possession, from the report it reveals that, the petitioner was present in the suit premises and requested for time to call Respondent No.3. Meanwhile, brother of Respondent No.3, Raheman came to the spot and objected with regard to mulgi No. 11-2-66 instead of correct No.11-2-166. The warrant of delivery of possession was returned unserved with this objection. The petitioner kept quiet on that day i.e. on 1-8-1992. The petitioner knew that there is pending decree which is being executed for ejectment of the said premises. It is pertinent to note that there is nothing in the Bailiff's Report stating that the petitioner raised the objection that he is in possession of the suit mulgi and doing business and not Respondent No.3. He did not at the very first instance claim his right to be in possession or exhibited it or brought to the notice of the Bailiff. Respondent No.3 filed an application under Order 9 Rule 13 to set aside the ex parte decree dated 19-2-1990 in O.S.No.639/90 along with I.A.No.932/92 before the XI Assistant Judge, City Civil Court, Secunderabad, I.A.No.932 of 1992 is for condonation of delay of 107 days and the said application was dismissed by the trial Court on 11-12-1992 and Respondent No.3 preferred C.R.P.No.4100 of 1992 before this Court which confirmed the order passed by the trial Court and dismissed the C.R.P. on 8-9-1993.It is also stated in the counter filed by Respondent No. 1 in the lower Court that during the pendency of I.A.No.932 of 1992 he deposited sum of 3 8,190/- including the cheque of Rs.13,190/- and the same was withdrawn by Respondent No.1. The attitude of the petitioner shows that he remained as a mute spectator to the proceedings that were being contested by Respondent No.3 and did not try to contest his right of tenancy. Later on 12-10-1993 after the order passed by this Court in C.R.P.No.4100 of 1992 dated 8-9-1993 he filed the suit O-S.No. 319 of 1993 on the file of III Additional Judge, City Civil Court, Secunderabad, for declaration of his tenancy in the suit premises and cancellation of the decree passed in O.S.No.669 of 1990 dated 19-2-1990 on the file of XI Assistant Judge, City Civil Court, Secunderabad to grant perpetual injunction restraining Respondent Nos. 1 and 2 from executing the decree. In the said suit he filed LA.No.1768 of 1993 and obtained status quo orders. During the interrugnum period i.e. from 8-9-1993 to 12-10-1993 it is stated that Respondent No.l wanted to execute the warrant of delivery of possession after correcting the number of the suit premises but the same was returned with an endorsement that the said mulgi is locked. That being the situation, he again filed E.A.No.128 of 1993 under Order 21 Rule 97 to disallow the execution of the decree passed in O.S.No.319/93 on 19-2-1990 on the file of III Additional Judge, City Civil Court, Secunderabad, setting up his independent title of tenancy from Respondent No.2 in respect of the suit premises reiterating the facts mentioned in O.S.No.319 of 1993.1.A.No.1868/93 was filed for injunction restraining respondents from dispossessing the petitioner from the suit premises in which status quo orders were granted on 12-10-1993 but after contest the order was vacated on 29-11-1993 by the said Court. It is represented by Mr. Shakoor that against the said order dated 29-11-1993 in I.A.No.1868/93, the petitioner preferred a C.M.A. before the appellate Court-Additional Chief Judge, City Civil Court, Secunderabad, but the same was dismissed for default as a result of which the order passed inIANo.1868/93 dated 29-11-1993 has become final. While matter stood thus, the petitioner proceeded with E.A.No.128 of 1993. After hearing the arguments and considering the facts and after enquiry the executing Court came to the conclusion that the application of the petitioner is not maintainable. It is significant to note that when the petitioner was threatened or there was a cloud with regard to his tenancy in respect of the suit premises as the E.P. was sought to be executed on 1-8-1992 and that the petitioner did not take any steps either to approach the executing Court or to approach the Civil Court for establishing his rights if any. He merely remained as a spectator by watching the proceedings which were being contested by Respondent No.3 judgment debtor in the suit and when ultimately after dismissal of C.R.P.No.4100/92 on 8-9-1993 filed by the judgment debtor, he sought to initiate legal proceedings. As earlier observed the petitioner initiated proceedings in a composite suit before he approached the executing Court. It is pertinent to note that Order 21 Rule 97 of C.P.C. is applicable when resistance is made or obstruction to possession in respect of immovable property or dispossession is effected by any person or party who is not bound by the decree. Order 21 of Rule 104 of C.P.C. says that every order made under Rule 101 or 103 shall be subject to the result of the suit that may be pending on the date of commencement of the proceedings in which such order is made. Keeping this view in mind, the petitioner having decided to defend his rights by way of a composite suit in O.S.No.319/93 on the file of m Additional Judge, City Civil Court, Secunderabad, and having railed there to obtain orders restraining Respondent No.l from dispossessing the petitioner cannot be allowed to initiate proceedings under Order 21 Rule 97. It has been rightly pointed out in Tahera Sayeed's case (supra) by His Lordship K. Ramaswamy, J. that Order 21 Rule 97 of C.P.C. if interpreted strictly, could be available only when the decree-holder or purchaser chooses to make avail of. His Lordship also observed that the inherent power is in addition to the power which the Court is already possessed and thatthe power is intended to be exercised to prevent miscarriage of justice or abuse of process of Court. It is also observed that the procedure is but the machinery of law-the channel and means whereby law is administered and justice is reached, hi a given situation, the Court is empowered to use its inherent powers to meet the ends of justice and to adjudicate upon the rights of parties, hi this case, the petitioner has already approached the Civil Court with a composite suit wherein the learned Judge passed orders on Interlocutory Application and again after contest the same was dismissed, and again he initiated proceedings before the executing Court. As already observed that the petitioner is none other than the brother-in-law of Respondent No.3 and it is not in dispute that the original lessee/tenant late Zeenalh was the sister of the petitioner and wife of Respondent No.3. After her death, Respondent No.3-husband continued to be the tenant by executing the lease deed in favour of Respondent No. 1 and the petitioner instead of approaching the Court to establish his rights at ihe first instance when he was threatened at the time of execution of the decree in O.S.No.699/90 dated 19-2-1990, he remained as a spectator watching the contest between Respondent No.l and Respondent No.3. It is also on record that during the period between 19-2-1990 and 1-8-1992 Respondent No.3 filed I.A.No.932 of 1992 seeking condonation of delay of 307 days and to set aside the exparle decree dated 19-2-1990 made in O.S.No.699/90 but the same was dismissed on 11-12-1992 against which Respondent No.3 preferred C.R.P.No.4100 of 1992 before this Court and this Court by its order dated 8-9-1993 dismissed the C.R.P. and during the interregnum period, Respondent No.3 deposited a sum of Rs.38,190/- including a cheque for Rs.13,910/- and the same was withdrawn by Respondent No.l.
25. Apart from the above, the III Additional Judge, City Civil Court, Secunderabad, in his order dated 12-10-1993 in I. A.No. 1868/93 observed that at the time of execution of E.P.No.51/92 on 1-8-1992, the petitioner has signed on the panchnama, and had his case been genuine he would haveresisted the Bailiff and asserted his right that he is the tenant of the premises and he is not bound by the decree. But, it is stated that he has meekly signed the panchnama while warrant of execution was returned by the Bailiff due to mistake in mulgi number. These facts conclusively prove that the petitioner,' who is a close relative of Respondent No.3, tried to defeat the execution of the decree in respect of the suit premises.
26. The inherent powers of the Court are to be exercised to meet the ends of justice and to render justice between the parties but not to defeat the ends of justice, and in fact if the petitioner is allowed in contextual facts it will be abuse of process of Court and the same cannot be permitted.
27. In the wake of above facts, I hold that no interference is called for in the order passed by the Court below and the Civil Revision Petition lacks merits, accordingly it is dismissed. No costs.