Judgment:
ORDER
B.V. Nagarathna, J.
1. These three revisions petitions are filed by the applicants who had filed I.A. Nos. X, XI and XVI before the Court below, being aggrieved by the dismissal of the same by order dated 11.12.2001 in Execution Petition No. 8611/1993.
2. The relevant facts of the case are that one Smt. Nanjamma and her son Sri Rajanna who are since deceased and Rajanna being represented by his legal representatives, had filed an eviction petition in HRC No. 2844/1981 against the tenants in respect of premises bearing No. 100 and 102 which shall hereinafter be referred to as the 'schedule premises' under Section 21(1) (a), (f), (h) and (p) of the Karnataka Rent Control Act, 1961 as it then existed, before the Court of Small Causes at Bangalore. By the order dated 28.3.1987, the said eviction petition was allowed under Section 21(1)(h) directing the tenants to vacate the premises within six months from the date of the order. Being aggrieved by the said order, CRP No. 4321/1987 and CRP No. 1262/1987 was preferred by the tenants. This Court, by a common order dated 3.9.1992, dismissed both the revision petitions granting one year's time to the tenants from the date of the order to vacate and deliver vacant possession of the premises to the landlords viz., Nanjamma and Raj anna. During the pendency of the said revision petitions, Rajanna died on 30.10.1987 and his legal representatives were brought on record.
3. Subsequently, on 8.10.1993, execution petition was filed by only the legal representatives of Rajanna in Execution Petition No. 8611/1993. It is significant that though Nanjamma was shown as a petitioner in the execution petition, she had not signed the same and therefore had not joined the legal representatives of Rajanna in preferring the said execution petition. During the pendency of the said execution petition, an application was filed by one Maganlal under Order XXI Rule 97 to 99 CPC (I.A. No. 2) contending that he is the son of one of the tenants in respect of the schedule premises. During the pendency of the said application, Nanjamma died on 28.8.1996. I.A. No. 2 came to be dismissed by an order dated 16.11.1996. There was no challenge made to the said order and hence, the same has attained finality.
4. Subsequently, I.A. No. 8 was filed by the petitioner, G.H. Premakumari in HRRP No. 21/2002 under Section 151 of CPC seeking to implead herself as one of the decree-holders on the ground that she was one of the legal representatives of Nanjamma and also a legatee under the will executed by Nanjamma dated 21.1.1987. The legal representative of Rajanna who is one of the joint decree-holders in the eviction petition objected to the said application and the Court below dismissed the said application.
5. Being aggrieved by the said order passed by the Executing Court, CRP No. 689/1997 was filed before this Court which was, however, dismissed by order dated 4.2.1997 confirming the order passed by the trial Court.
6. When matters stood thus, I.A. Nos. X and XI were filed by the petitioners in HRRP No. 39/2002 and HRRP No. 40/2002 under Order XXI Rule 97 CPC raising objections to the execution by contending that they were tenants who are inducted into the schedule premises by the petitioner in HRRP No. 21/2002.
7. I.A. No. XVI was filed by the petitioner in HRRP No. 21/2002 under Order XXI Rules 97 to 101 CPC raising objections to the execution petition. By an order dated 11.12.2001, the three applications were dismissed by the Court below. Being aggrieved by the said order, the applicant in I.A. No. XVI before the Court below has preferred HRRP No. 21/2002 and the tenants who are the applicants in I.A. Nos. X and XI before the Court below have preferred HRRP Nos. 39/2002 and 40/2002 respectively.
8. Since the petitioners are aggrieved by a common order dated 11.12.2001, all the revision petitions have been connected and heard together and disposed of by this order.
9. I have heard Sri A. Krishna Bhat, learned Counsel for the petitioner in HRRP No. 21/2002, Sri H.K. Shetty, learned Counsel for the respondent/legal representatives of Rajanna and Sri K.K. Vasanth, learned Counsel who appears for the petitioners in the other two revision petitions who has adopted the submissions of Sri A. Krishna Bhat.
10. It is submitted on behalf of the petitioners that Prema Kumari, the petitioner in HRRP No. 21/2002 is none other than the natural daughter of Nanjamma who is one of the joint decree-holders in the HRC petition and claims to be the legatee under the will and though her right is through Nanjamma, during the pendency of the execution petition, she had obtained possession of a portion of the schedule premises and thereafter let out the same to the petitioners in HRRP Nos. 39/2002 and 40/2002 and therefore, they being in possession, the decree could not have been executed against them. It is further submitted that on an application filed under Order XXI Rule 97 or under Rule 99 CPC, the Executing Court ought to hold an enquiry and that the procedure under Order XXI Rule 100 CPC applies and it is analogous to a suit and therefore, the Court below erred in not holding an enquiry on their applications and summarily dismissing the said applications. He therefore requests this Court to set aside the impugned order and direct the Court below to record evidence on their applications and thereafter, pass orders in accordance with law.
11. Per contra, it is submitted on behalf of the respondents that subsequent to the order passed by this Court in the Civil Revision Petitions confirming the order of eviction, the legal representatives of Rajanna who is one of the joint decree-holders had filed the execution petition seeking possession of the schedule premises and the other joint decree-holder being late Nanjamma under whom the petitioner in HRRP No. 21/2002 viz., Prema Kumari is said to have derived her title could not have maintained an application under Order XXI Rule 97 to 101 CPC and that when her status was that of a joint decree-holder, she was not a stranger to the proceeding although she had not joined others in the execution of the said decree and that the application filed by her viz., I.A.XVI was not maintainable and that she had no locus standi to file that application by contending that there was obstruction in the execution of the decree on the ground that she had obtained possession whereas, such an application could have been maintained only by a decree-holder against a stranger and therefore, the application was rightly rejected by the Court below. He further submits that the applications I.A. Nos. X and XI filed by the petitioners in HRRP Nos. 39/2002 and 40/02 who claim right, title and interest through Prema Kumari could not have maintained the same as they had no better right or a higher right than Prema Kumari and hence, the Executing Court rightly dismissed the said applications.
12. Both the counsel have relied upon certain decisions which shall be adverted to later.
13. Taking note of the rival submissions, the points that arise for my consideration are as follows:
1. Whether the petitioner in HRRP No. 21/2002 and petitioners in HRRP No. 39/2002 and HRRP No. 40/2002 could have maintained an application under Order XXI Rules 97 to 101 CPC against another joint decree holder?
2. If the answer to point No. 1 is in the negative, whether the Executing Court was justified in dismissing the applications filed by the petitioners in these revision petitions?
14. The relationship between the parties in these cases are not in dispute. Both late Rajanna and Prema Kumari are the children of late Nanjamma and Nanjamma and Rajanna had filed the eviction petition in respect of the schedule premises and after seeking an order of eviction which was confirmed by this Court, execution petition was filed by only the legal representatives of Raj anna. No doubt, Nanjamma who is the other joint decreeholder had not preferred an execution petition. It is also not in dispute that Prema Kumari, apart from being a daughter of Nanjamma, has also independently claimed right, title and interest in respect of the schedule property by virtue of a will said to have been executed by Nanjamma on 21.1.1987. At this stage, it is relevant to mention that Prema Kumari had preferred I.A.VIII in the said execution petition with a prayer to implead herself as one of the decree holders deriving her right from Nanjamma and also on the basis of the will executed by Nanjamma on 21.1.1987. The said application was dismissed on the ground that she was not entitled to come on record as Nanjamma had not signed the execution petition and that there was a partition suit pending in O.S. No. 116/1989 wherein, the validity of the will was to be adjudicated and that Nanjamma had deposed in the enquiry held with regard to I.A. No. II filed by one Maganlal in the Executing Court that she had not executed any will. The said application for impleadment was dismissed and the same was upheld by this Court, by its order dated 4.2.1997 in CRP No. 689/1997 which has attained finality. Therefore, the status claimed by Prema Kumari was in fact as a decree-holder although she was not permitted to be impleaded. Such being the case, the question for consideration is as to whether Prema Kumari, being a joint decree-holder, could have filed an application in I.A. No. XVI under Order XXI Rule 97 CPC raising objection to the execution of the decree on the ground that she had obtained possession of the schedule premises and had inducted tenants.
15. At this stage, it is relevant to refer to the provisions of Order XXI Rules 97 to 101 so as to answer point No. 1 with regard to the maintainability of the application filed by the petitioner in HRRP No. 21/2002. Order XXI Rule 97 CPC deals with resistance or obstruction to possession of immoveable property which can be filed by the decree-holder only against a stranger and the said application is filed before possession is obtained. On the other hand, under Order XXI Rule 99 CPC, where a person other than a judgment debtor is dispossessed of immoveable property, then he may make an application to the Executing Court complaining of such dispossession and the questions to be determined on such application are dealt with under Rule 101 of Order XXI and that the orders to be passed thereafter are dealt with under Rule 98 of Order XXI. Rule 102 of Order XXI speaks about Rules 98 and 100 not being applicable for transferee pendente lite.
16. On a conspectus reading of these provisions, it becomes clear that an application under Rule 97 of Order XXI can be maintained only by a person who claims an independent right and not a right either under the judgment debtor or a decreeholder. This is the settled position of law. But, in the instant cases, strangely, the application has been filed by a person who claims to be a joint decree-holder in one breath and an independent person who has let out possession of the schedule premises to tenants in another breath. As already noticed, an application was filed by Prema Kumari contending that she is a joint decreeholder along with Rajanna claiming right, title and interest through her mother Nanjamma. Such being the position, she could not have maintained an application under Rules 97 to 99 of Order XXI of CPC by contending that she was a stranger and had an independent right by virtue of being in possession of a portion of the property. Hence, in my opinion, the application itself was not maintainable and ought to have been dismissed in limine by the Court below. Similarly, the applications filed by the petitioners in HRRP Nos. 39/2002 and 40/2002 were also not maintainable since they claim right, title and interest through Prema Kumari who did not have the locus standi or an independent right to maintain such an application. Therefore, the said applications also ought to have been rejected at the threshold. Therefore, point No. 1 is held against the petitioners for the aforesaid reasons and the applications filed by them under Order XXI Rules 91 to 99 CPC are dismissed as not maintainable. Though it is held that the applications filed by the petitioners in these revision petitions are held to be not maintainable, but nevertheless, the Executing Court did not go into the maintainability of the said applications in great detail, but after hearing both sides, has passed an order dismissing the said applications.
17. The grievance of the learned Counsel for the petitioners is that the dismissal of the applications without an enquiry is bad in law. Although my answer to point No. 1 is in the negative, nevertheless, it is necessary to refer to an earlier order made by the Executing Court on I.A. No. II which was an application filed by one Maganlal. In the said order dated 16.11.996, the Court below has recorded that the evidence on record establishes that there was a collusion between the applicant (Maganlal) and P.W.2 (Basavaraj -husband of Prema Kumari) and Nanjamma (P.W.3) who was under the control of P.W.2. It is further stated Nanjamma was not in a position to move about due to paralytic stroke and day-to-day, her health had deteriorated and that in 1989 itself, she was not in a position to put her signature and therefore, the signatures at Ex. P.1 to 9 could not be accepted. The Court below also observed that the evidence of P.Ws.1 to 3 on I.A. No. II could not be believed and that the applicant (Maganlal) was not an independent tenant under Nanjamma, the first decreeholder and that she was not in possession of the schedule premises having an independent right. On the basis of the said findings, I.A.II was dismissed and there being no challenge to the said order, it has attained finality. The observations of the Court below on I.A. No. II also lends support to the impugned order and on account of the dismissal of I. A. No. II, the applications -I.A. Nos. X, XI and XVI were also rejected without holding an enquiry. In my view, the Court below was justified in dismissing the applications -I.A. Nos. X, XI and XVI filed under Order XXI Rules 97 to 99 without holding an enquiry thereon.
18. I am supported in my view by the decision of this Court reported in ILR 2003 Kar 660 in the case of (Sri Ramachandra v. Smt. Kempamma and Ors.) wherein it is held that Order XXI Rule 97 CPC is applicable to a person who claims an independent right not either under the judgment debtor or decree holder and that any person claiming right under the decree holder as a lessee cannot invoke the provisions of Order XXI Rule 97 of CPC. From the above decision, it becomes clear that an applicant has to have an independent right in order to maintain an application under Order XXI Rule 97 CPC and not either as a decree holder or a judgment debtor. In the instant case, however, it is ununderstandable as to how a joint decree holder could have maintained an application resisting execution of the delivery warrant by contending that she had put tenants in possession of a portion of the schedule premises.
19. In the case of P. Janardhana Rao v. Kannan and Ors. reported in : (2004)11SCC511 , the Hon'ble Supreme Court was of the view that when there is no evidence of residence from the side of the obstructionists, the application under Order 21 Rule 97 of CPC ought to be dismissed. In view of the above reasoning already given in this judgment, Premakumari in the instant case, has not produced any evidence so show that she was in possession of the suit schedule premises and further that she is entitled to maintain an application under Order 21 Rule 97, CPC and she being one of the joint decree holders and in view of the finding given earlier by the trial Court while disposing of I.A. No. II, it can be safely held that on the basis of the decision of Hon'ble Supreme Court, the petitioners herein failed to substantiate their plea that they were in factual possession of the schedule premises in their own right and hence for the said reason, a further enquiry with regard to that aspect was not necessary.
20. Reliance can also be placed on another decision of the Hon'ble Supreme Court in the case of Silver Forum Pvt. Ltd. v. Rajiv Trust and Anr. reported in : [1998]2SCR587 , wherein it has been held that a third party to the decree who offers resistance or obstruction to execution of the decree would fall within the ambit of Rule 101 of Order 21 CPC, if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102 of Order 21 CPC. Exclusion of such a transferee from raising further contentions is based on the salutary principle enunciated under Section 52 of the Transfer of Property Act.
21. The Court further states that under Order 21 Rule 97, CPC the question which legally arise for determination between the parties only will have to be determined by the Execution Court. In other words, the Court is not obliged to determine a question merely because the resistor raised it. It further held that the third party, who questions the validity of a transfer made by the decree holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. It is further held that adjudication mentioned in Order 21 Rule 97(2) need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resister.
22. Learned Counsel for the petitioners has relied upon the dictum laid down by the Supreme Court in the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr. reported in : [1997]1SCR463 in order to highlight about the scheme enunciated in the statutory provision of Order 21 Rule 97 to 103 CPC which is a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. In this decision, it is stated that once resistance is offered by a 'purported stranger' to the decree and which comes to be noted by the Executing Court as well as by the decree-holder, the remedy available to the decree-holder against such an obstructionist is only Order XXI, Rule 97 Sub-rule (1) and he cannot bypass such obstruction and insist on issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order 21 Rule 97 in connection with removal of obstruction of purported strangers to the decree. There cannot be any contrary view on the proposition enunciated by the Hon'ble Supreme Court, but the said decision in no way assists the case of the petitioners, inasmuch as, they claim through a joint decree holder by filing an application under Order 21 Rule 97 CPC and not as strangers to the decree, which I have already held are not maintainable as there is no person who is a stranger to the decree who is alleged to have obstructed in the execution of the decree. Rather, in my view, these applicants, who are the petitioners, infact are causing obstruction in the execution of the decree obtained by Late Nanjamma and Late Rajanna and which decree is being executed by the Legal representatives of Raj anna.
23. Learned Counsel for the petitioners has also relied upon another decision in the case N.S.S. Narayana Sarma and Ors. v. Goldstone Exports (P) Ltd. and Ors. reported in : AIR2002SC251 to contend that Order 21 Rule 97 to 103 CPC is a clear scheme, wherein the legislature has vested right in the Executing Court to deal with all issues relating to such matters and that in the instant case, the Execution Court ought to have ordered that an enquiry on the applications filed by the petitioners herein, rather than, summarily dismissing the applications without recording the evidence. The proposition laid down in this decision have to be harmoniously read with another decision of Hon'ble Supreme Court referred to above viz., reported in : [1998]2SCR587 , wherein, it has been stated that the adjudication under Rule 101 of Order 21 CPC would take place only when the question raised have legally arisen between the parties and consequently such questions are relevant for consideration and determination between the parties. Since it has been already held by me that the applications themselves were not maintainable, in view of the circumstance of petitioner viz., Premakumari, who derived such right, interest and title over the schedule property through one of the joint decree holder viz., Nanjamma and there being no obstructer who has been named in the applications, the Court below was justified in not adjudicating the applications by recording the evidence as such.
24. For the aforesaid reasons, these Revision Petitions are dismissed and the Court below is directed to initiate further steps in accordance with law.
25. At this stage, learned Counsel for the petitioner in HRRP No. 39/02 and 40/02 submits that some time may be given to the petitioners to vacate the premises and hand over the vacant possession. The same is objected to by the learned Counsel for the respondent. In view of the fact that I have held that the applications filed by the petitioners as not maintainable, the question of granting time, would in my view not be proper. However, liberty is reserved to the petitioners herein to work out their remedies with respondent before the Executing Court, failing which, the Execution Court shall proceed in accordance with law with regard to the execution of the decree of eviction.