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TMI Blog1998 (4) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The creation of hierarchy of Courts was for a reasonable objective for confering greater satisfaction to the parties that errors, if any, by any of the lower Courts under the scruitiny of a higher Court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seekers in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches and litigation an much as possible. Thus, this has been the cause of anxiety and concern of various authorities, Legislators and Courts. How to eliminate such a long consuming justice? We must confess that we have still to go long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice. The Courts within its limitations have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decreetal property which is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was negatived by the trial court, appellate court, and even by the High Court in the second appeal. Hence, the executing court cannot go behind the decree. The appellants case is they were not parties to those proceedings. However, this objection of the decree-holder was rejected in the first round by the Executing Court and the Revisional Court holding that the person resisting viz. the present appellants were not parties to the suit nor there is any decree against them. It seems subsequently, the decree-holder again moved another application in the aforesaid execution case No. 1A of 19970- 81 for delivery of vacant possession. The present appellants also moved an application/objections under order 21, Rule 97 C.P.C. resisting that they cannot be dispossessed in terms of the said decree, as they were not parties to the said suit nor they are deriving any right and title through the Judgement debtor. They claim separate and independent legal right, not affected either by the mortgage or redemption of the mortgage. it is not clear as under what circumstances the second application for actual possession was made by the decree-holder after the matter was earlier disposed of. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under order 21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injuction to protect his possession. The High Court upheld the Executing Court's order following the said Full Bench decision of the M.P. High Court. hence this appeal. The only question raised is, whether the Full Bench decision is correctly decided. In view of this Full Bench decision, objection of the appellant was rejected without considering the points raised on merit or other objections. In order to appreciate the controversy, order 21, Rule 35, order 21, Rule 36 and order 21, Rule 97 are quoted hereunder :- O. 21. R. 35: Decree for immovable property :- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, be removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, rule 99 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by any person . this may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (As ammended by 1976 Act) under which all que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 98. Where 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, 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 to be detained in the civil prison for a term which may extend to thirty days. 99. Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. 100. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for he possession of such property or, where such prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as all disputes are to be settled by the Executing court itself finally under rule 101. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under order 21, Rule 97, has to be decided by the Executing court itself. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the Executing Court. but this will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under rule 97 and in case dispossessed adjudication to be under rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decree meet with rough weather. 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 the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97.. ............... In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid full Bench of the M.P. High Court in the case of Usha Jain Vs.Manmohan Bajaj (supra) cannot be held to be a good law. As we have recorded above, both the Executing Court and the High court have rejected the application of the applicant under Order 21, Rule 97 only on the basis of the said Full Bench decision, hence the said order cannot be sustained. Accordingly, both the orders dated 20th February, 1985 passed by the High Court in civil Revision No. 406 of 1983 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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