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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Keshari Nath Tripathi
  • Ravi Kant
Judges
  • R.P Singh, J.
Acts
  • Order 21, Rules 35, 97 and 99, Civil Procedure Code
  • Order 21, Rules 35, 197 and 99, C.P.C
  • Order 21, Rules 97 and 99, C.P.C
  • Order 21, Rules 98, 99, 100
  • Rule 99 of Order 21, CPC
  • Order 21, Rule 100, C.P.C
  • Order 21, Rule 97, C.P.C
  • Order 21, Rule 99, CPC
  • Order 21, Rule 100
  • Order 21, Rule 99
  • Order 21, Rule 97;
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Keshari Nath Tripathi
  • Ravi Kant
Judges
  • R.P Singh, J.
Acts
  • Order 21, Rules 35, 97 and 99, Civil Procedure Code
  • Order 21, Rules 35, 197 and 99, C.P.C
  • Order 21, Rules 97 and 99, C.P.C
  • Order 21, Rules 98, 99, 100
  • Rule 99 of Order 21, CPC
  • Order 21, Rule 100, C.P.C
  • Order 21, Rule 97, C.P.C
  • Order 21, Rule 99, CPC
  • Order 21, Rule 100
  • Order 21, Rule 99
  • Order 21, Rule 97;
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This writ petition challenges an order of the District Judge, Allahabad dated 8-10-1986, which upheld an order of the Judge, Small Cause Court dated 23-9-1986.

The underlying events, as set out in the opinion, are:

  • Respondent No. 3 (Ram Niwas Gupta) filed a suit for arrears of rent and ejectment against respondents Nos. 4–7 before the Judge, Small Cause Court. The suit remained pending for about four years and was decreed ex parte on 6-8-1986 in favour of respondent No. 3.
  • Respondent No. 3 put the decree into execution, sought and obtained police assistance, and proceeded to execute the decree to obtain possession.
  • The petitioners (the plaintiffs in the writ) filed an application in execution proceedings under Order 21, Rules 35, 97 and 99, Civil Procedure Code, claiming they were in possession in their own right (not as sub-tenants) and therefore not bound by the decree and not liable to be evicted in execution of the decree.
  • Respondent No. 3 objected to the petitioners' application on the ground that persons other than the judgment-debtor cannot file an objection under Order 21, Rule 99 until they have been dispossessed; he also noted that the petitioners had filed a separate suit No. 739 of 1986 (on 14-8-1986) seeking declaration and injunction against eviction.
  • The Judge, Small Cause Court held (on 23-9-1986) that Order 21, Rule 99 permits an objection by a person other than the judgment-debtor only after dispossession; that the executing court lacks jurisdiction to initiate an inquiry at the instance of a third party under Order 21, Rule 97; and that an inquiry by a third party in possession is contemplated only under Order 21, Rule 100 after dispossession. On those grounds the objection was dismissed.
  • The petitioners' revision before the District Judge was dismissed (order dated 8-10-1986). The present writ petition followed under Article 226 of the Constitution.

Legal Issues Presented

  1. Whether a person other than the judgment-debtor (a third party in possession) can file and maintain an objection under Order 21, Rule 99 (and relatedly under Order 21, Rule 97) of the Civil Procedure Code prior to being dispossessed in execution of a decree.
  2. Whether the executing court has jurisdiction to commence an inquiry into the title or right of a third party objector in execution proceedings before dispossession, or whether such inquiry is permissible only after dispossession (e.g., under Rule 100) or in a separate civil suit.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners asserted that their objection filed under Order 21, Rules 35, 97 and 99, C.P.C. was maintainable and that they had a right to have their title determined in the execution proceedings.
  • They contended that the Judge, Small Cause Court committed a manifest error by holding that their objection was not maintainable until they were dispossessed.

Respondent's Arguments

  • The respondent contended that the petitioners, being persons other than the judgment-debtor, could not maintain an objection under Order 21, Rule 99 until they were dispossessed from the premises; their rights could be determined only after dispossession.
  • The respondent also pointed out that the petitioners had already filed a separate suit (No. 739 of 1986) seeking declaration and injunctive relief, implying that execution proceedings could not be stayed on the basis of the objection and that the petitioners had an alternative remedy.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ram Swarup v. Mahabir Prasad, AIR 1969 All 440 Held that a plain reading of Order 21, Rules 97 and 99 showed that an application by the holder of a decree complaining of resistance/obstruction requires the court to proceed under R.97(2). (This decision was given when Rule 99 had a different wording.) The petitioners relied on this case. The court noted the case's significance but observed that Rule 99 was amended in 1976 and therefore the present statutory text differs from the earlier formulation relied upon in this decision.
Krishna Kumar Kanaujia v. Smt. Ramkesh Gupta, (1983) 9 All LR 231 : AIR 1983 All 256 Laid down that Rule 99 contemplates an objection by a person other than the judgment-debtor only after his dispossession from the premises which is the subject-matter of the decree. The court relied on this decision in support of the view that objections by third parties under Rule 99 are maintainable only post-dispossession.
Smt. Usha Jain v. Manmohan Bajaj, AIR 1980 Madh Pra 146 (Full Bench) Held that an inquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100 after dispossession; the executing court has no jurisdiction to start an enquiry at the instance of a third party other than the decree-holder/purchaser under Order 21, Rule 99. The court relied on this Full Bench decision to support the proposition that executing courts should not investigate third-party claims in execution proceedings before dispossession.
Mohd. Shareef v. Bashir Ahmad, AIR 1983 Madh Pra 44 Held that a third party has no locus standi to seek investigation into its claim under Order 21, Rule 97; such a third party can protect possession by an independent civil suit seeking temporary injunction showing a strong prima facie case. Used to reinforce the conclusion that third parties cannot seek investigation under Rule 97 before dispossession and must instead resort to independent suit/remedies.
K.A. Prabhakaran v. Kuttian Prakashan, AIR 1985 Ker 204 Held that Rules 98, 99, 100 and 103 read together make it clear that no application for adjudication of right, title and interest by an objector lies before he is dispossessed; after dispossession Rule 99 provides remedy; Rule 97 does not permit anticipatory applications by objectors. The court relied on this decision to support the proposition that objectors cannot seek adjudication of title in execution proceedings before dispossession.
Motamari Ramaiah v. K.M. Malliah, AIR 1962 Andh Pra 72 Summarised that under Order 21, Rule 97 only the decree-holder can file an application complaining of resistance/obstruction; an obstructor not party to the decree cannot approach the court under Rule 97 for determination of rights and such third-party applications would be dismissed if contested by the decree-holder. The court cited this authority as confirming that third-party applications under Rule 97 are not maintainable and support dismissal of such applications.

Court's Reasoning and Analysis

The court's analysis proceeded in these principal steps, as stated in the opinion:

  1. Textual examination of Rule 99: The court compared the earlier pre-1976 wording of Order 21, Rule 99 with the post-1976 amended text. It reproduced the current text of Rule 99, which expressly provides a remedy to a person other than the judgment-debtor only "where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree ... he may make an application to the Court complaining of such dispossession" and that the Court shall adjudicate upon such application in accordance with the provisions contained.
  2. Conclusion from statutory text: From the present wording, the court concluded that an objection under Order 21, Rule 99 is maintainable by a person other than the judgment-debtor only after actual dispossession in execution of the decree; the statutory scheme does not provide for such an objection prior to dispossession.
  3. Reliance on precedents: The court surveyed decisions of several High Courts and a Full Bench (including Krishna Kumar Kanaujia, Smt. Usha Jain, Mohd. Shareef, K.A. Prabhakaran and Motamari Ramaiah) which consistently held that a third party cannot invoke Rules 97 or 99 to obtain adjudication of title or to stop execution prior to dispossession; an inquiry at the instance of a third party in possession is contemplated under Rule 100 after dispossession and not before.
  4. Policy and practical considerations (as recorded in cited precedents): The court noted the concern, expressed in the cited authorities, that requiring the executing court to stay execution and investigate third-party claims prior to dispossession would enable repeated or spurious claims and unjustly deprive decree-holders of possession. The court accepted that omission by the executing court to investigate an objection by a third party prior to dispossession does not leave the third party without remedy: the third party may either seek relief after dispossession under Rule 99/100 or pursue an independent civil suit for declaration and injunction.
  5. Application to facts: The court observed that the petitioners had already instituted a separate suit (No. 739 of 1986) seeking declaration and temporary injunction against eviction. That indicated they had an independent remedy available and could seek interim protection in the civil forum by demonstrating a strong prima facie case.
  6. Result: On these bases the court concluded there was no ground to interfere with the orders of the courts below dismissing the petitioners' objection in the execution proceedings; the writ petition accordingly lacked merit.

Holding and Implications

Holding: The writ petition is dismissed. The court held that an objection under Order 21, Rule 99 by a person other than the judgment-debtor is maintainable only after that person has been dispossessed in execution of a decree; the executing court is not required to investigate third-party claims prior to dispossession in execution proceedings.

Immediate Consequences for the Parties:

  • The impugned orders of the Judge, Small Cause Court (dated 23-9-1986) and the District Judge (dated 8-10-1986) are upheld.
  • The writ petition is dismissed and parties are directed to bear their own costs.
  • The stay order dated 15-10-1986 is vacated.

Broader Implications: The opinion, as presented, does not purport to create a new legal principle beyond applying the existing statutory text and the consistent line of High Court decisions cited. The court treated the cited precedents as authoritative support for the interpretation that third parties must wait until dispossession to invoke Rule 99 or must pursue an independent civil suit for interim protection. The opinion does not state any broader or novel precedent beyond this application.

Show full summary ...

    Sona Devi v. District Judge

    1. This writ petition is directed against the order passed by the District Judge, Allahabad, dated 8-10-1986 upholding the order passed by the Judge, Small Cause Court, dated 23-9-1986.

    2. The facts of this case are that a suit for arrears of rent and ejectment was filed by respondent No. 3 Ram Niwas Gupta against respondents Nos. 4 to 7 before the Judge, Small Cause Court which remained pending for about four years and then the suit was decreed ex parte on 6-8-1986 in favour of the respondent No. 3. Thereafter respondent No. 3 put the decree in execution and moved an application for obtaining possession therein. Respondent No. 3 also requested for police help which was allowed by the execution court and then proceeded to execute the decree. The petitioner then filed an application under Order 21, Rules 35, 97 and 99, Civil Procedure Code claiming that they were in possession in their own right and not as sub-tenants and are not bound by the decree passed in Suit No. 196 of 1982 and; hence are not liable for eviction in execution of the decree. Respondent No. 3 filed an objection to the application moved by the petitioners on the ground that the petitioners had no right to file an objection under Order 21, Rule 99 and that they are the sub-tenants liable to be ejected and cannot be heard till they are dispossessed from the immovable property and further that the petitioners have also filed a regular suit No. 739 of 1986 for declaration of their rights and for an injunction against respondent No. 2 on 14-8-1986 in the Court of the Munsif West, Allahabad wherein they have already prayed for issue of the temporary injunction from evicting them in execution of the decree and hence these execution proceedings cannot be stayed and the petitioners have no right to file an objection at this stage. The Judge, Small Cause Court in a very detailed order held that Order 21, Rule 99 provides for an objection by a person other than the judgment-debtor which can be filed only after he is dispossessed from the premises which constitutes the subject-matter of the decree and the executing court has no jurisdiction to start an inquiry at the instance of a third party other than the decree-holder/auction purchaser under Order 21, Rule 97, C.P.C It further held that an inquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100, C.P.C after he was dispossessed and not before it and on this ground dismissed the objection filed by the petitioners, vide his order, dated 23-9-1986. Feeling aggrieved, the petitioners went up in revision before the District Judge who also dismissed the revision and hence this writ petition is filed before this Court.

    3. The contention of the learned counsel for the petitioners is that the objection filed by the petitioners under Order 21, Rules 35, 197 and 99, C.P.C was maintainable and the petitioners had a right to get their title determined in these proceedings and the learned Judge, Small Cause Court, respondent No. 2, committed a manifest error in holding that the objection of the petitioners was not maintainable at this stage till they were dispossessed of the immovable property by the holder of the decree. On the other hand, the learned counsel for the respondent strenuously urged that the petitioners being the persons other than the judgment-debtor, their objection under Order 21, Rule 99 was not maintainable till they were already dispossessed and their rights could be determined only after they are dispossessed of the immovable property by the decree-holder, respondent No. 3. Hence the scope of Order 21, Rules 97 and 99, C.P.C has to be examined in the present case.

    4. The learned counsel for the petitioners in support of his contention placed reliance on AIR 1969 All 440, Ram Swarup v. Mahabir Prasad where it was held that “a plain reading of Order 21, Rules 97 and 99, CPC shows that all that is required for their application is an application by the holder of a decree complaining of resistance or obstruction in obtaining possession by a person. Hence when such an application has been made, the court has no option but to proceed in accordance with the procedure laid down in R. 97(2).” It is significant to note that this case was decided in the year 1969 when Order 21, Rule 99, CPC read as follows:—

    “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.”

    5. This provision was amended in 1976 and the present Order 21, Rule 99 reads as follows:—

    “99. Dispossession by decree-holder or purchaser.— (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.”

    6. Hence it will be clear that the law, as it stands now, an objection under Order 21, Rule 99, CPC is maintainable by the person other than the judgment-debtor complaining of his dispossession only after he is dispossessed of the immovable property.

    7. The learned counsel for the respondent relied on a later case reported in (1983) 9 All LR 231 : (AIR 1983 All 256) Krishna Kumar Kanaujia v. Smt. Ramkesh Gupta, where it was laid down that Rule 99 of Order 21, CPC clearly contemplates that an objection by a person other than the judgment-debtor can only be filed after his dispossession from the premises which constitutes the subject-matter of the decree and reliance was placed on a Full Bench decision of the Madhya Pradesh High Court, reported in AIR 1980 Madh Pra 146, Smt. Usha Jain v. Manmohan Bajaj where it was held that an enquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100 after he was dispossessed and not before it. The executing, court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder/auction I purchaser under Order 21, Rule 99. This rule is merely permissive and not mandatory and i the executing court is not bound to stay its hands, the moment a third party filed an objection to the execution nor the stay would continue till an unwilling decree-holder/auction purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. If the executing court were to stay its hands till investigation into a third party's claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claims. It was further held that the omission of the executing court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his right judicially investigated prior to his dispossession, his only remedy then being under Order 21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for declaration of his title claiming therein the relief of temporary injunction to protect his possession.

    8. In AIR 1983 Madh Pra 44, Mohd. Shareef v. Bashir Ahmad, the same view was laid down that a third party has no locus standi to seek investigation into its claim under Order 21, Rule 97; such a third party can protect his possession during execution of the decree only by an independent civil suit claiming temporary injunction therein on the basis of strong prima facie case showing its right to possession independent of the judgment-debtor.

    9. In AIR 1985 Ker 204, K.A Prabhakaran v. Kuttian Prakashan, it was held that a plain reading of Order 21, Rules 98, 99, 100 and 103 makes it clear that no application for adjudication of the right, title and interest of an objector would lie before he is dispossessed in execution of a decree to which he is not a party. If, however, he is dispossessed, he is given a remedy under Order 21, Rule 99 to apply for restoration of possession to the execution court. The execution court on such application is required to adjudicate the question of right, title and interest of the dispossessed objector and pass appropriate orders under Rule 100. No application under Order 21, Rule 97 would lie at the instance of an objector in anticipation of his dispossession in execution of a decree for eviction to which he was not a party.

    10. Another case which was relied upon by both the parties is reported in AIR 1962 Andh Pra 72, Motamari Ramaiah v. K.M Malliah. This case also is not of much help to the petitioners as in paragraph ‘15’ it was laid down:

    “The result of the foregoing discussion may be summarised thus: Under Order 21, Rule 97, CPC only the decree-holder can file an application to the court complaining of resistance or obstruction which can result in an investigation by the Court and suitable orders. An obstructor, who is not a party to the decree under execution cannot approach the Court with an application to determine and safeguard his rights or to obtain an order in his favour under Order 21, Rule 97, CPC or any other provision of law. If a third party files such an application, impleading the decree-holder it would be open to the decree-holder to contend that such an application does not lie, that the third party cannot ask for an enquiry in the matter or relief and to ask for an order in favour of himself (decree-holder). If he so contends, the application would have to be dismissed.”

    11. In view of the decisions of various High Courts noted above, it appears that the objection filed by the third party i.e, the petitioners in the present case was rightly held by the court below as not maintainable till they have been dispossessed from the premises which constitutes the subject-matter of the decree and it has been held that if the executing court were to stay its hands till investigation into third party's claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claim.

    12. In the present case, we find that a regular suit No. 739 of 1986 was already filed by the petitioners for a declaration of their right and moved an injunction application against respondent No. 3 in the court of Munsif West, Allahabad wherein they prayed for a temporary injunction from evicting them in execution of the decree. Hence it is only after a very strong prima facie case is made out, that the petitioners may obtain an injunction, and that the petitioners are already pursuing their remedy before the civil court. Hence also, no interference is called for with the impugned orders in this extraordinary jurisdiction under Article 226 of the Constitution.

    13. In the result, I find no merit in this writ petition which is accordingly dismissed. In the circumstances of the case, parties shall bear their own costs. The stay order, dated 15-10-1986 is vacated.

    14. Petition dismissed.

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    Comments

    Sona Devi v. District Judge
    (Nov 12, 1987)