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TMI Blog2003 (11) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... the original owner of the suit property? 3. For the sake of easy understanding, the parties shall be described in their status in the executing proceedings as Decree Holder, Judgment Debtor and Objector. For the purpose of these appeals, we do not consider it necessary to go into greater details of the proceedings in the suit which resulted in passing of the decree of specific performance of the contract. 4. Bare facts necessary for the purpose of decision are as under :- According to the decree holder, an Agreement of Sale was obtained on 12.07.1984 from the judgment debtor in respect of the suit lands which are now potential building sites on the outskirts of Patna city. The case of the decree holder is that when she filed the suit No. 22/87 against her vendors for specific performance of Agreement of Sale dated 12.7.1984, she was not aware that the Objectors had obtained title to the suit property by four separate sale deeds in the year 1985 and got them registered in Calcutta where the vendors resided. The purchasers were not made parties to the suit. 5. The case of the Objectors is that pursuant to the execution of the registered sale deeds, they obtained posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r application under Order XXI Rule 99 of the Code and the reply submitted by the Decree Holder to the same, the executing court framed a preliminary issue on the maintainability of the application filed by the Objectors. Issues on merits were also framed; as to whether the suit for specific performance was filed with knowledge of execution of registered sale deeds and deliberately the registered purchasers were not impleaded as parties to the suit OR whether Objectors purchased the property with full knowledge of prior agreement of sale with the decree holder. The executing court decided all the contesting issues including preliminary objection on maintainability of application under Order XXI Rule 99 of the Code in favour of the Objectors. By order dated 02.5.2000, it directed restoration of possession of the property in dispute to the Objectors. 10. Aggrieved by the order of the executing court allowing objection under Order XXI Rule 99 of the Code, the Decree Holder preferred an appeal to the High Court. The learned single Judge of the High Court of Patna by its impugned order dated 23.4.2001, allowed the appeal of the Decree Holder. The High Court came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19(b) of the Specific Relief Act, 1963. It is contended that the decree in the absence of the Objectors who were necessary parties to the suit, is not executable. Reliance is placed on Ram Sworup Singh v. Mahabir Mahton AIR1960Pat235 ; Chinna Vanan v. Alamelu and Ors. (1975)1MLJ263 ; and Vimala Ammal v. C. Suseela and Ors. AIR1991Mad209 . 14. We need not go into the question whether the Objectors as subsequent purchasers of the suit properties were necessary parties to the suit for specific performance based on alleged prior agreement of sale, because both parties plead want of knowledge of each other's transactions at the time the registered sale deeds were obtained by the Objectors and at the time of institution of suit by the Decree Holder. 15. We would, first, take up for consideration the main question involved between the parties as to whether the Objectors could have made application under Order XXI Rule 99 to the executing court and seek adjudication of their right and title through the executing court in accordance with Order XXI Rule 101 of the Code or their remedy lay in filing an independent suit. Order XXI Rule 99 101 read as under :- Order XXI, Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which eludes or frustrates the recipient of justice is not to be followed.' 17. In case of Brahmdeo Chaudhary (supra), the provisions of Order XXI Rule 97 of the Code, as amended, came up for construction. They read thus :- Order XXI, Rules 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 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. 18. The question raised in that case was whether the Objector cannot claim adjudication of his claim being third party to the decree under execution until he is Actually dispossessed'. The argument advanced was that application under Order XXI Rule 97 at the instance of Objector is not maintainable to the executing court because such application complaining 'resistance and obstructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cases of this Court clearly, indicate that the provisions of Order XXI Rule 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. 22. The word dispossessed as used in Order XXI Rule 99 of the Code has been narrowly construed to be an ouster from actual and physical possession of the property by several High Courts. See AIR1954Mad516 ; and AIR 1978 Goa 48. 23. Salmond on jurisprudence explains that the word possession is a word of 'open texture'. Its legal meaning has to be ascertained from the context. The property involved in the present case is open vacant land. Such property is possessed by a person who has control over the same. This 'control' over the property means 'power to exclude all others'. The test then for determining whether a man is in possession of anything is whether he is in 'general control' of it - maybe that he is not in actual and physical possession or using the same. 24. The Objectors have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to claim adjudication of his rights through the executing court. An interpretation of the provision which promotes or fulfils the object of the amended provisions of the Code of curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under Order XXI Rule 99 of the Code. From the trend and ratio of decisions of this Court surveyed above, if the Objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under Order XXI Rule 97. On the same legal position and reasoning even though the Objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree holder, lost their right and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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