1. R-1 herein obtained decree for maintenance with charge and separate residence against her husband i.e, R-2 herein, in O.S No. 582 of 1973 1st Additional D.M.C, Tanuku. As per the said decree, the property, which is the subject-matter of these two appeals, was allotted to R-1 towards residence. But, even on 29-10-72, these two appellants purchased the protions of the said property under two separate registered sale deeds from R-2. E.P No. 235 of 1979 was filed under O. 21, R. 35 CPC for possession of the property given to R-1 for residence. The possession of the same was delivered to R-1 by breaking open the locks with the permission of the Court. Then, these appellants filed E.A Nos. 977 and 976 of 1979 respectively for possession of the same. Those petitions were allowed by the Executing Court. The orders therein were set aside by the 1st Appellate Court. The judgment of the 1st Appellate Court and the decrees therein, were challenged in these second appeals.
2. R-1 pleaded that she had given notice about the claim for maintenance to P.W.I, the father of the appellants informing him that if he purchases the property from her husband, he had to do so at his risk P.W.I received it as per Ex.B-1 acknowledgment dt. 16-10-1972. Hence, it is a case where the appellants purchased the property having notice of the claim of R-1 for maintenance as against her husband and as such the purchases by the appellants are subject to the right of R-1 under Section 39 of the T.P Act.
3. The contentions for the appellants are two-fold: (1) The signature on Ex. B-1 is not that of P.W.I Even if the said signature can be held as that of P.W.I, still the notice to their further P.W.I cannot be attributed to the appellants, who are the purchasers from R-2. R-2 sold the premises to the appellants in discharge of the mortgage debts. The claim for maintenance does not have precedence over the secured debt. (2) As the appellants herein were not parties to O.S No. 582 of 1973, they are not bound by the decree therein and as such, R-1 cannot take possession of the property from these appellants in execution of the decree in OS No. 582 of 1973. These are the two points for consideration in these appeals.
4. I will take up the latter point first. Before, adverting to the same, it will be convenient to refer to the relevant provisions under C.P.C, whcih read as under:—
O. XXI, R35:
“Decree for immovable property:
35. (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, by removing any person bound by the decree who refuses to vacate the property.
(2) xxx xxx xxx
(3) xxx xxx xxx.”
Section 50:
“Legal representative.
50. (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”
Section 74:
“Resistance to execution:
74. Where the Court is satisfied that the Holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.”
O. XXI, R. 97:
“Resistance or obstruction to possession of immovable property:
97. (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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) xxx xxx xxx.”
5. It is manifest from O. 21, R. 35(1) CPC that the decree-holder can recovery possession in execution of the decree for possession from the judgment-debtor or from the person or persons, who are bound by the decree for possession. Transferee pendents lite is bound by the decree. In fact, O. 21, R. 102 CPC provides that O. 21, Rules 98 and 100 shall not apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor had transferred the property after institution of the suit in which the decree was passed or to the dispossession of any person. Can it be stated that the transferee prior to the suit is bound by the decree? One who claims through a judgment-debtor after the institution of the suit or one who is a subordinate holder i.e, one who holds right or interest in the immovable property subject to the title of the judgment-debtor, is bound by the decree for possession. It is on the basis that the judgment-debtor had title in the property by the date of the institution of the suit. But, if the judgment-debtor transferred the immovable property by executing the registered document even before the filing of the suit, he was not having title by the date of the suit. Then, it will be a case of obtaining a decree against a person who was not having title in the immovable property and then, naturally, the decree-holder cannot urge or contend that the decree obained by him for possession of immovable property against a person who had no title by the date of filing of the suit, binds the persons who had title by the date of institution of such a suit. After reviewing the case-law both English and Indian, B.K Mukherjee, J (as he then was) held in Sailendra Nath v. Bijanlat AIR 32 1945 Cal 283 as follows:
“To make a man privy to an action he must have acquired an interest in the subject-matter of the action by inheritance, succession or purchase from a party subsequent to the action or he must hold the property sub-ordinately (vide Bigello on Estoppel, Edn. 6 pp. 158 and 159). Thus, a man cannot be a privy to a judgment by succession unless he has acquired the property to which the judgment relates by way of inheritance, purchase, etc., subsequent to the institution of the suit. Nobody can represent on interest which he has already parted with and consequently a transferee prior to the institution of the suit cannot be privy to or bound by a judgment obtained against the transferor; but the position may be different in the case of the subordinate holder, e.g, when a sub-leasee holds under a lease.”
6. The said view will referred to with approval by my learned brother M.N Rao, J. in G. Padmanabham v. Singarayya. 1988 2 ALT 816 As the judgment-debtor parted with the property even by the date of the suit, it cannot be stated by any stretch of imagination that he represented the transferee in a case of transfer prior to the suit.
7. Even Sec. 74 CPC lays down that if there is any resistance or obstruction by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or other person to be detained in the civil prison for the term referred to an that the court may further direct that the decree-holder or purchaser will be put in possession of the property. Thus even Sec. 74 CPC can be invoked only in cases of resistance by the judgment-debtor or some person on his behalf. But, one who purchased the property from the judgment-debtor prior to the suit, cannot be held as a person holding possession on behalf of the judgment-debtor. So the Court cannot pass any direction for dispossession of the person who purchased the property under a registered sale deed from the judgment-debtor prior to the institution of the suit. Order 21, Rule 97 CPC has to be read along with Order 21, Rule 35 and Section 74 and Section 60 CPC. Section 60 CPC need not be considered for the disposal of these appeals, as it is not a case of purchaser in Court-auction claiming possession. This is a mere case of execution of the decree for possession of immovable property.
8. By reading Order 21, Rule 97 along with Order 21, Rule 35 and Section 74 CPC, it has to be stated that Or. 21, Rule 97 can be invoked only in case of resistance by the judgment-debtor or a person who resisted or obstructed on behalf of the judgment-debtor or by a person who is bound by the decree.
9. Thus, it is clear that a person who purchased the property from the judgment-debtor even prior to the filing of the suit, is not bound by the decree obtained as against that judgment-debtor. The Executing Court cannot order dispossession of such purchaser, when he resisted the execution of the decree.
10. Then, a question arises as to whether such purchaser can claim restoration of possession, if he were dispossessed in execution of the decree, by merely claiming that he is not bound by the decree and he was not acting on behalf of judgment-debtor. It was contended for the learned counsel for R-1 that in an enquiry under Order 21, Rule 101 CPC after amendment in 1976, it is open to the decree-holder to resist the restoration if the decree-holder is entitled to the possession even from the obstructor. Order 21, Rule 101 after amendment reads as under
“101. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”
11. It was urged that even if the judgment-debtor had no title by the date of the suit, still if the right of the purchaser in case of sale by the judgment-debtor prior to the suit, is subject to the right of the decree-holder, the same had to be adjudicated under O. 21, Rule 101 CPC.
12. As already observed, the decree-holder can obtain possession from the judgment-debtor or any person who is bound by the decree; Hence, the obstruction by the judgment-debtor or anyone who is bound by the decree or by any person who acts on behalf of the judgment-debtor or the person who is bound by the decree, has to be removed and a direction had to be given for delivering possession of the immovable property to the decree-holder after removal of such obstruction. Thus, when a person resists, it is necessary for the Executing Court to determine as to whether such resistence or obstruction is by the judgment-debtor or by the person who is bound by the decree or by one who is acting on behalf of them. It is for the Executing Court to determine the same arises, if the decree-holder of the auction purchaser files an application under O. 21, R. 97 CPC or if an application is filed under O. 21, R. 99 CPC by the obstructor even before he is dispossessed in execution of the decree. Can it then be stated that the decree-holder can claim possession in execution of the decree for immovable property, from a person who is not bound by the decree or who is not acting on behalf of the judgment-debtor by contending that the decree-holder has a right de hors the decree to obtain possession from such obstructor.
13. The rights inter se between the parties have to be decided in the suit. When once a decree becomes final, the rights as between the parties stand determined. Thus, in execution of the decree, the question of further determination of those rights between parties to suit does not arise. When a decree for possession is obtained as against the judgment-debtor, it is a case of obtaining a decree on the basis of the decision that it is the decree-holder and not the judgment-debtor who is entitled to the possession of the same. But, if a 3rd party claims title the question that arises is as to whether the possession of the 3rd party was in his own right or through the judgment-debtor. It is necessary to decide the same in execution as the decree-holder can obtain possession if the 3rd party was in possession through judgment-debtor and not in his own right by the date of the suit. Where the decree-holder claims title or interest as against the 3rd party, it is necessary for the former to file a suit, if the latter denies the right or interest claimed by the decree-holder.
14. So the determination of questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under O. 21, R. 97 or R. 99 as referred to in O. 21, R. 101 CPC is only to find out as to whether the 3rd party i.e, the obstructor or one who resists the claim for possession by the decree-holder or auction-purchaser or who was dispossessed in execution of the decree by them, was in possession in his own right or through judgment-debtor on the date of the suit or during the pendency of the suit. Such a view has to be taken, for the enquiry under O. 21, R. 101 CPC is in the course of execution. That enquiry is necessary to decide as to whether the decree-holder or the auction-purchaser can obtain possession in pursuance of the decree or Court-auction-sale that was already passed or held. Such an enquiry is not envisaged nor contemplated for determining the right or interest claimed by the decree-holder/auction-purchaser as against the obstructor de horse the decree. If the decree-holder claims that he is entitled to enforce the right as against the 3rd party on the basis of decree his remedy is by way of separate suit as against such 3rd person, if he was not impleaded as a party to the suit. The determination of such right is not incidental to the execution of the decree.
15. Before the amendment of O. 21, R. 101 and R. 103 CPC the enquiry was summary. But after amendment it has to be decided as if it is a suit: vide M.R Brahmaiah… v. Mohd. Ibrahim Khan…. 1978 2 APLJ 294 But, it cannot be stated that after the amendment, the scope of the enquiry is widened. Even after amendment the determination of the right, title and interest as envisaged under O. 21, R. 101 CPC is to find out whether the obstructor was in possession on his account or on account of someone other than the judgment-debtor or on account of the judgment-debtor. The change is only in regard to the nature of enquiry. While it was summary earlier, it has to be now enquired just as in a suit. The enquiry envisaged under O. 21, R. 101 CPC is only for determining whether the decree-holder or auction-purchaser can be put in possession in pursuance of decree/court auction sale but not for the purpose of determining whether the decree-holder auction purchaser has any claim against the obstructor, de hors the decree/court sale.
16. Even Section 60 CPC lays down that it is only the property movable or immovable, belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in execution of a decree. For consideration of these appeals, it is not necessary to refer to the properties which are not liable for attachment or sale in execution of the decree. Suffice it to observe that it is only the property of the judgment-debtor or the properties over which or the profits of which, the judgment-debtor has disposing power, can be attached or sold in execution of the decree. Thus, if by the date of judgment the property did not belong to the judgment-debtor, the auction-purchaser cannot claim any title on the basis of such purchase. Thus, if the auction-purchaser files an execution petition for possession of the property purchased by him in the Court-auction and if any person obstructs or resists delivery of such possession, then it is necessary to consider as to whether the property belong to the judgment-debtor as on dote of attachment.
17. A question has arisen as to whether it is for the Executing Court to decide that the decree can be enforced against the property in the hands of a son or other descendant, which is liable under Hindu Law for the payment of the debt of the deceased-anscestor. In Pannalal v. M.T Naraini AIR 1952 SC 170, it was held that such question had to be decided in execution, for ancestral property in the hands of the son or other descencant bound under the Hindu Law to discharge the debt of a deceased ancestor was deemed to be the anscestral property of the deceased-judgment-debtor under Section 53 CPC. Thus, it is obvious that but for the deeming provision, it would have been held that it is a matter for consideration in execution even if the son or other descendent referred to is bound to discharge the debt of the deceased father or anscestor on the basis of pious Obligation Theory. Thus, to illustrate, that if ‘A’ obtained money decree against ‘B’ in regard to pre-partition debt and if ‘C’ the son of ‘B’ was not impleaded as a party to the suit, then ‘A’ can bring the anscestral property in the hands of ‘C’ for sale or execution of the decree against ‘B’, as the said property was deemed to be the anscestral property of the deceased father/anscestor under Section 53 CPC. Hence, in view of the above fiction, the said property was held to be the property of the judgment-debtor. The son/descendant can avoid the liability to discharge the pre-partition debt of the father if it was contracted for illegal or immoral purpose of for the purpose which is opposed to public policy, a debt which is said to be ‘Avyvaharika’ debt. If the son/descendant comes up with such a plea, the said has to be adjudicated in execution under Sec. 47 CPC. if the deeming provision as per Sec. 53 CPC was not incorporated, then it cannot be stated that the decree-holder could bring the anscestral property in the hands of son/descendent for sale in execution of the decree against the deceased father/anscestor when the son/descendant was not impleaded as a party. Then the remedy for the decree-holder would have been to file a separate suit against the son/descendant on the basis of the decree obtained so against the father/anscestor. Thus, the basis of the claim against son/descendant is only the decree obtained against the father/anscestor. But, when the son descendant was not a party to the said suit, he would not have been bound by the decree if Sec. 53 CPC was not incorporated.
18. R-1 obtained the decree in regard to the property in question for residence. R-1 contends that the right of the transferee from her husband is subject to her maintenance claim, which is crystalised into a decree. Thus, the basis of the claim of R-1 as against these appellants is the decree obtained by her (R-1) against R-2. But, as the appellants are not parties to the suit, they are not bound by the decree obtained by R-1 against R-2. It is necessary to adjudicate as to whether the transferees i.e, the appellants herein had notice of the claim; of maintenance of R-1 as against her husband, R-2. It is also urged that R-2 sold this property to the appellants for discharging secured debts and that the maintenance claim has no precedence over secured debts or even over on-secure debts and hence they are not bound by the maintenance decree in favour of R-1, even if the appellants had notice of the claim of R-1 for maintenance as against R-2, by the time the appellants purchased the property from R-2. There is no deeming provision similar to Section 53 CPC to contend that in spite of the sale before the institution of the suit, the property should be deemed to be the property of the judgment-debtor, if the purchasers had notice of the claim of maintenance. So it has to be held that the claim of R-1 on the basis of Sec. 39 T.P Act, is not a matter to be adjudicated in an enquiry under O. 21, R. 97 or O. 21, R. 99. CPC and it is a matter for consideration in-a suit if filed.
19. In the above view, there is no need to consider the 1st point. Hence, it is not necessary to discuss the decisions in Jamnabhai Ammal v. Balakrishm AIR 1927 Mad. 1092 Rammurthi v. Kanakarattm AIR 1948 Mad. 28 and Raghavachariar v. Kandaswami AIR 1947 Mad. 277 cited for the appellants.
20. As the appellants in O.S No. 582 of 1973, I Addl. D.M.C, Tanuku are not bound by the decree obtained by R-1 against R-2, they cannot be dispossessed in execution of the decree. The restoration has to be ordered as they were illegally dispossessed in execution of the said decree. It has to be made clear that this judgment does not debar R-1, the decree-holder, to file a suit, if so advised, as against the appellants herein to claim possession of this property by invoking Sec. 39 T.P Act. If such a suit is going to be filed, the same has to be considered in accordance with law, and res judicata does not arise, as the claim of R-1 on the basis of Section 39(2) T.P Act is not determined in these appeals.
21. In the result, both these appeals are allowed and the impugned orders, we set aside and E.A Nos. 977 and 976 of 1979 praying for restoration are allowed. No costs.