Ram Pyare and Others Vs. Special Judge, Basti and Others

Ram Pyare and Others vs Special Judge, Basti and Others

Type Court Judgment Court Allahabad Decided Mar 26, 1999

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Citation: sooperkanoon.com/487682
Court: Allahabad High Court
Judge: P.K. Jain, J.
Decided On: Mar 26, 1999
Case Number: C.M.W.P. No. 11709 of 1995
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

Civil - execution - Order 21 and Rules 35(3) and 97(1) of Code of Civil Procedure, 1908 - application for police aid for execution of decree - third party holding property filed objection - objections filed by third party under Order 21 Rule 97(1) maintainable - held, dismissal of such objection by Courts below on ...

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC), 1908 - Order 21, Rules 35, 35 (3), 97, 97 (1), 97 (2), 98, 98 (1) and (2), 99, 101 and 103

Parties & Advocates

Appellant / Petitioner

Ram Pyare and Others

Advocate D.P. Srivastava, Adv.

Respondent

Special Judge, Basti and Others

Advocate S.C.

Legal References

Acts: Code of Civil Procedure (CPC), 1908 - Order 21, Rules 35, 35 (3), 97, 97 (1), 97 (2), 98, 98 (1) and (2), 99, 101 and 103
Cases Referred: C) and Bhanwar Lal v. Satyanarain and
Reported In: 1999(2)AWC1464a

Excerpt

civil - execution - order 21 and rules 35(3) and 97(1) of code of civil procedure, 1908 - application for police aid for execution of decree - third party holding property filed objection - objections filed by third party under order 21 rule 97(1) maintainable - held, dismissal of such objection by courts below on grounds of non maintainability not justifiable and directed executing court to decide on objection filed expeditiously. - motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income..........the following picture : (1) if a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under order xxi rule 35, then the decree holder has to move an application under order xxi, rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist, the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by order xxi, rule 97, sub-rule (2) read with order xxi, rule 98. it is obvious that after such adjudication, if it is found that the resistance or obstruction was occasioned without just cause bythe judgment-debtor or by some other person at his instigation or on his behalf, then such obstruction or resistance would be removed as per order xxi. rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. even in, such an eventuality, the order passed would be treated as a decree under order xxi, rule 101, and no separate suit would lie against such order meaning thereby that only remedy would be to prefer an appeal before the appropriate appellate court against such decree. (2) if for any reason, a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid 'reason then his remedy would lie in filing an application under order xxi. rule 99. c.p.c., claiming that his dispossession was illegal and that possession deserves to be restored to him, if such an application is allowed after adjudication, then as enjoined by order xxi. rule 98 sub-rule (1), c.p.c, the executing court can direct the stranger applicant under order xxi. rule 99 to be put in possession of the property or if his application is found.....

Full Judgment

P.K. Jain, J.

1. Learned counsel for the' petitioners and learned counsel for respondents 1 to 8 have been heard at length. The petition is being finally disposed of at the admission stage.

2. Short question raised in this petition is whether without the decree-holder moving an application, under Order XXI. Rule 97 (1) C.P.C., objections raised by the third party resisting the execution of the decree, can be heard or not.

3. Brief facts of the case are that respondents 3 and 4, Sita Ram and Ram Das, had obtained a decree for possession in respect of certain immovable properties against respondents 5 to 8. While the decree was put in execution, the petitioners alleged to be in possession of the part of the land under the decree. The petitioners were not party to the suit and there was no decree against them. The decree-holders moved an application under Order XXI, Rule 35 C.P.C, before the executing Court for getting the possession delivered with the aid of the police. The petitioners filed objections under Order XXI, Rule 97, C.P.C. The said objections werenot entertained by the executing court on the ground that the third party has no right to make an application resisting the execution of the decree and the third party can file a suit. On revision being filed against the order of the executing court, the revisional court dismissed the same on the ground that unless the decree-holder moves an application under Order XXI, Rule 97 C.P.C., for delivery of possession after removal of obstruction by third party, objections filed by the third party are not maintainable.

4. These two orders of the executing court as well as the revisional Court are challenged in this writ petition and a prayer to quash the same has been made.

5. The dispute raised in the present writ petition is squarely covered by the decisions of the Supreme Court in Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal and another, 1997 (2) AWC 1003 (SC) and Bhanwar Lal v. Satyanarain and another, (1995) 1 SCC 6. In Brahmdeo Choudhary's case, the Apex Court had held as follows :

'A conjoint reading of Order XXI, Rules 97.98.99 and 101 projects the following picture :

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35, then the decree holder has to move an application under Order XXI, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist, the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI, Rule 97, sub-rule (2) read with Order XXI, Rule 98. It is obvious that after such adjudication, if it is found that the resistance or obstruction was occasioned without just cause bythe Judgment-debtor or by some other person at his instigation or on his behalf, then such obstruction or resistance would be removed as per Order XXI. Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in, such an eventuality, the order passed would be treated as a decree under Order XXI, Rule 101, and no separate suit would lie against such order meaning thereby that only remedy would be to prefer an appeal before the appropriate appellate Court against such decree.

(2) If for any reason, a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid 'reason then his remedy would lie in filing an application under Order XXI. Rule 99. C.P.C., claiming that his dispossession was illegal and that possession deserves to be restored to him, if such an application is allowed after adjudication, then as enjoined by Order XXI. Rule 98 sub-rule (1), C.P.C, the executing court can direct the stranger applicant under Order XXI. Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order XXI, Rule 98. sub-rule (1) would be deemed to be a decree as laid down by Order XXI. Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would He against such orders as clearly enjoined by Order XXI. Rule 101.'

6. The Hon'ble Supreme Court had also referred to the decision in the case of Bhanwar Lal V. Safyanarafrt and another, (1995) 1 SOC 6, a decision rendered by threeJudges Bench. That was a case in which one Satyanarain had obstructed to the delivery of possession of immovable property which was sought to be obtained in execution by the appellant decree-holder. After such an obstruction was offered by Satyanarain, the decree-holder moved an application under Order XXI Rule 35 for police assistance to remove obstruction caused by Satyanarain. The executing court directed the decree-holder to make an application under Order XXI. Rule 97. The Hon'ble Supreme Court took the view that the very application under Order XXI, Rule 35 sub-rule (3) for police assistance for removal of obstruction_caused by Satyanarain had to be treated to be an application under/Order XXI, Rule 97 and such an application was maintainable and could not be said to be beyond limitation. It was observed that 'when the appellant had made the application on 25.5.1979 against Satyanarain. In law it must be only the application made under Order XXI, Rule 97 (1) of C.P.C. The executing court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule.'

7. In the instant case also, an application under Order XXI. Rule 35 (3). C.P.C, for police aid was moved by the decree-holder on ground that the third party was in possession and was resisting the execution of the decree. In view of the decision of the Hon'ble Supreme Court in Bhanwar Lal's case (supra), such an application was, in fact, an application under Order XXI, Rule 97 (1). C.P.C. Therefore, the petitioners were entitled to file objection.. The same could not have been rejected on ground of maintainability. Consequently, the orders passed by the two courts below cannot be sustained.

8. The petition is allowed. Impugned orders dated 25.8.1993 and 27.10.1994 passed by the executing Court and revisional Courtrespectively, are hereby quashed. The executing court is directed to dispose of the application filed by the petitioners under Order XXI Rule 97 (1) C.P.C. expeditlously, say within three months from the date a copy of this order is produced before the Court below. No order as to cost.

Same Court & Year Allahabad · 1999 Same Parties Ram Pyare and Others vs Special Judge, Basti and Others Same Subject Civil Same Judge P.K. Jain, J. Acts & Sections Code of Civil Procedure (CPC), 1908 - Order 21, Rules 35, 35 ...

Civil