CASES REFERRED: 1. ILR 1986 KAR 2647 - Jesraj v. Ahammad (Foll) 2. AIR 1984 MP 148 - Usha Jain v. Manmohan (do) 3. AIR 1985 Ker 204 - Prabhakaran v. Kuttian (do) 4. AIR 1984 Raj 94 - Shri Devi v. Kashiram (do) 5. AIR 1976 All 1 - Jairaji v. Firm Jayanth Prasad (do) 6. 1979 (1) KLJ 419 - Maddim Setty v. Basith (do) 7. 1984 (1) KLJ 347 - Chandrakant v. Mishrimal (Dist) 8. 1986 (1) BLJ 244 - Manohar v. Gajanan (do) 9. AIR 1962 AP 72 - Ramaiah v. Kumari Mallaiah (Foll) 10. CRP 2413/73-DD 7-1-1974 - Ismailsab v. Nanjunda Shetty (Ref) 11. CRP 1118/73-DD 13-8-1973 - Ramegowda v. B.G Ramesh (do)

Mr. V. Tarakaram for Petitioner

Mr. C.R.V Swamy for Respondents.

Murlidher Rao, J.:—

Petitioners, in possession of shop premises, are holding the fort, with their backs to the wall; though failed in all fronts they have managed to stay, like a sinking man under an oxygen tent.

2. Facts, which are spread over for more than a decade, are as follows:

In HRC No. 91/1975 (renumbered as HRC 5/1980), C. Mangaraj and three others initiated eviction proceedings under Section 21(1)(i)(f)(h) and (p) of the Karnataka Rent Control Act, in respect of shop premises, consisting of ground floor and first floor, in Nos. 984, 374/1 and 862 and 166 (new) situated at Chickpet, Bangalore. They impleaded Gevar chand and Jugraj as their tenants. The rent was claimed at Rs. 475/- per month. After serious contest, an eviction decree was passed on 12-2-1981.

“Mahaveera” - registered partnership firm represented by Devichand challanged the order of eviction in C.R.P No. 1374/1981, which was dismissed at the stage of admission, on the ground that “Mahaveera” not being a party cannot challenge the said decree; this was on 13-4-1981.

On 25-5-1981, “Mahaveera” filed & suit, with the following prayers, in O.S No. 1507/1981:—

“(1) declare that the plaintiffs are in lawful possession and enjoyment of the schedule property as tenants under defendants one to four OR in the alternative that the plaintiffs are the lawful sub-tenants under the defendants one to four:

(2) restrain defendant one to four by means of a decree for permanent injunction restraining them from executing the decree which they have obtained in H.R.C 5/80 (five of Eighty) on the file of the XIth Additional Small Causes Court, Bangalore permanently; and

(3) award cost of the suit and award such other reliefs as this Hon'ble Court deems fit to grant under the circumstances of the case, in the interest of justice.”

3. In the above suit, temporary injunction was granted and it was made absolute; defendants filed M.F.A No. 1869 of 1983, which was allowed on 25-7-1986, and injunction was vacated. In the course of the order, this Court made the following observation, which goes a long way to appreciate the conduct of the petitioners and their legal status:—

“As seen from the partnership deed dated 10-11-1978, under which Jugraj (defendant-6) and Devichand (who is now representing the plaintiff firm) became partners, earlier partnership with the firm-name “Mahaveera” has come to an end on 31-10-1978 when three of its partners retired leaving Jugraj (another partner of that partnership) alone. The partnership deed itself discloses that the plaintiff partnership firm “Mahaveera” came into existence on 1-11-1978, while the earlier partnership firm “Mahaveera” came to be dissolved by retirement of all partners excepting one and the new partnership so created consisted of defendant-6 and Devichand (who is representing the plaintiff-firm.) This situation itself clearly establishes that the partnership firm, the plaintiff, has nothing to do with the earlier partnership “Mahaveera”, in that, it had come to an end on 31-10-1978. If it is so, the plaintiff-firm's case that the plaintiff-partnership is the continuation of the earlier partnership with firm name “Mahaveera” falls to the ground. This apart, in clause-8 of the partnership deed dated 10-11-1978, it is stated in unequivocal terms that the tenancy rights of the business premises (disputed premises shall belong exclusively to the first partner (Jugraj), who was respondent-2 in the eviction case. It is further stated in that clause that the second partner (Devichand), who is representing the plaintiff-partnership firm in the suit, shall have no claim or interest in the tenancy of the disputed premises and the payment of the monthly rent of the disputed premises was solely the responsibility of Jugraj (Respondent-2) in the eviction case and defendant-6 in the suit). This situation clearly falsifies the case set out on behalf of the plaintiff partnership firm that partnership firm is the tenant of the disputed premises and is entitled to continue as such.”

(underlining is mine)

4. Against the above order, “Mahaveera” filed S.L.P No. 11021 of 1986, along with Civil Misc. Petition No. 25556 of 1986, before the Supreme Court. On 23-9-1986, S.L.P was dismissed. However the Court directed the maintenance of status-quo, regarding possession till 28-2-1987. By virtue of this order, petitioner continues to be in possession, with few more days to go.

5. The decree-holder sued out execution in Ex. No. 3331/1986 and prayed for issue of delivery warrant against the judgment-debtors. After service of notice, the judgment-debtors appeared and submitted that they have no objection to execute the decree; case was posted to 14-8-1986, for further steps. At this stage the firm “Mahaveera”, who had lost the battle, in C.R.P and M.F.A and is surviving on the order of the Supreme Court (supra), filed I.A.I under Section 151 C.P.C on 12-8-1986, to stay the execution proceedings on the ground that the eviction decree has been stayed by Court of Small Causes in HRC Misc. 425/1986. It is relevant to mention that on 2-9-1986, while allowing I.A III the Court vacated the stay order. The basis had disappeared and hence I.A.I had become infructuous. On the same day i.e on 12-8-1986, Mahaveera filed I.A II, purporting to be one under Order 21 Rule 97 C.P.C requesting the Court to hold an enquiry, before ordering delivery of possession. On 6-9-1986, I.A III was filed under Section 10 C.P.C to stay the proceedings, pending disposal of suit in O.S 1507/1981, before the City Civil Judge, (details of prayer extracted above). On 20-9-1986, ‘Mahaveera’ filed I.A.V to keep in abeyance the execution proceedings, on the ground that he has filed S.L.P 1101/1986 before Supreme Court. As mentioned earlier, this S.L.P was rejected on 23-9-1986. Hence I.A.V does not survive, and it has become infructuous. On 19-9-1986, the decree-holder filed I.A VIII and sought police help under Section 151 C.P.C On 20-9-1986, the decree-holder filed his objections to I.A II filed by Mahaveera under Order 21 Rule 97 C.P.C In I.A II ‘Mahaveera’ contended that the firm Mahaveera was the actual tenant. He set up his tenancy prior to the purchase by decree-holders and has attorned to the decree-holder, after purchase. This assertion is quite contrary to his averments in the plaint in O.S 1507/1981, wherein it is stated thus:

“The schedule property formerly owned and enjoyed by one D.N Govindarajulu. It was formerly in possession of a tenant under the said Govindarajulu. The said Govindarajulu filed an eviction Petition against his tenant for his alleged bona fide use and self occupation in the Court of the then first Munsiff, Bangalore. After obtaining an eviction order and getting possession of the schedule property, since he had no funds to carry on the business of his own, he entered into partnership with one Mishrilal Narasinghji, the father of the defendants 5 and 6 and, they were running the business under the name and style of Kailas Traders. The said Govindarajulu after some time released all his rights in the said Kailas Traders and, the said Kailas Traders was permitted to remain as tenant in respect of the schedule property. It may be mentioned in this connection that the Kailas Traders have been the tenants since 1968 of the schedule property. After the death of Mishrilal Narasingji, the firm was reconstituted under the same name and style with the widow of Mishrilal Narasingji and his son Jugraj, the 6th defendant herein along with other persons. The said Kailas Traders continued to pay the rents as and when became due, to the said Govindarajulu.”

6. In para 7 of the plaint it is stated that the Partnership Deed of Mahaveera Traders is dated 29-9-1975. Therefore the above assertion in I.A II is an utter falsehood. In this context, it is relevant to repeat the facts noted by this Court in MFA No. 1869/1983, (D.D 25-7-1986). A partnership called ‘Mahaveera’ was constituted under a Deed dated 29-9-1975, consisting of Smt. Panchidevi, Smt. Metibai, Smt. Vimaladevi and Sri Jugraj (respondent-2 in eviction case). The three ladies retired on 31-10-1978. Jugraj was left alone. On 1-11-1978, Jugraj and Devichand entered into a new partnership under the same name ‘Mahaveera’. This Court, after considering the two partnership deeds and the two rent receipts has made observation at para 7 in MFA 1869/1983, quoted supra. Regarding S. Devichand, who is the deponent in these three I.As and petitioner in these C.R.Ps, the Court has observed thus:

“……..I cannot help but concluding that the said rubber stamp in the said two rent receipts, have been affixed by Devichand, who has filed the present suit representing the partnership firm “Mahaveera”, obviously with a view to create an impression in the mind of the City Civil Court that the rent of the disputed premises had been paid under the two receipts by S. Devichand on behalf of the partnership firm “Mahaveera” and as its partner. As could be seen from the order of the City Civil Court under appeal, the attempt of S. Devichand in creating wholly a wrong impression on the mind of the City Civil Court has fully succeeded. The said conduct of S. Devichand, to say the least, is reprehensible. It may be stated that the rent receipts, adverted to above, if read without reference to the rubber stamp affixed by S. Devichand upon them, would clearly show that the rent has been received for the disputed premises from Gevarchand (Respondent-1 in the eviction) case…….”

7. Looking at the way the proceedings are conducted, and unjust causes that are pursued, he had been dealt with leniently. His conduct, self-contradictory assertions disentitle him to plead for any indulgence, either in equity or under inherent powers of the Court.

8. The Court below heard I.As I to III. It formulated three points for determination-

(1) Whether this I.A is maintainable?;

(2) Whether issue of delivery warrant should be stayed?; and

(3) To what relief?

9. All the three I.As are dismissed. As mentioned above, I.A.I dated 12-8-1986, has become infructuous as the stay order granted in Misc. No. 425/1986, is vacated on 2-9-1986. What survived for consideration were I.As II, filed under Order 21 Rule 97 C.P.C and I.A III filed under Section 10 C.P.C to stay the execution proceedings pending disposal of O.S No. 1507/1981.

10. Heard Sri Tarakaram and Sri Paras Jain for the petitioners and Sri C.R.V Swamy, for the respondent. In the light of the arguments advanced, the following points arise for consideration:—

1. What is the status of the petitioner?

2. Whether his application under Order 21 Rule 97 C.P.C is maintainable?

3. Whether his application under Section 10 C.P.C is maintainable?.

Point No. 1

11. Petitioner claims that he is third party and is not bound by the eviction decree in HRC No. 5/1980. If this claim is legally sound and logically correct, in terms of Section 30 of the Rent Control Act, he is not liable to be evicted, otherwise, he is bound by the decree.

12. The facts as found and narrated in the order of this Court in MFA No. 1869/1983, are that-

i) The tenancy rights of the premises belonged to Jugraj exclusively, as per Clause-8 of the partnership deed dated 10-11-1978;

ii) The first partnership firm by name “Mahaveera” which came into existence on 29-9-1975, had dissolved and came to an end on 31-10-1978; it has been effaced.

iii) New partnership firm, by the same name ‘Mahaveera’ came into existence on 1-11-1978, with Jugraj and S. Devichand, as partners, as per the partnership deed dated 10-11-1978;

iv) The partnership firm ‘Mahaveera’ (No. II) has nothing to do with the earlier partnership ‘Mahaveera’ (I);

v) Devichand, who is the second partner in the firm Mahaveera (No. II) has no claim or interest in the tenancy of the disputed premises;

vi) The claim of Devichand partner in Mahaveera No. II that the new firm is the tenant, is false;

vii) Two rent receipts, purporting to show that S. Devichand had paid rents on two occasions are concocted; rents are paid by Gevarehand (Respondent-1 in the eviction case).

13. These findings have become final as the S.L.P filed against it, is rejected. The Court below in its order dated 2-9-1986, in Misc. No. 425/1986, has rightly relied upon these findings while vacating the stay order. These findings establish that petitioner Mahaveera II represented by Devichand has no independent status as a tenant and be is enjoying the premises, in the tenancy created in favour of Jugraj, the first partner. Without the least hesitation, I hold, he has no independent right regarding tenancy; he is bound by the eviction decree passed against Jugraj in H.R.C No. 5 of 1980. In terms of Section 30 of the Karnataka Rent Control Act, he is liable to be evicted. He has no independent title.

Point No. 2: Application under Order 21 Rule 97 C.P.C

14. In view of my definite finding on point No. 1 this question is academic. Assuming, that the conclusion was otherwise, petitioner has no right to initiate proceedings under Order 21 Rule 97 C.P.C That provision is meant to assist the decree-holder in execution. The only person who can invoke that provision is the decree-holder or the purchaser as held by this Court in Jesaraj Ghasimal Betal v. Ahammad Hussein* . ILR 1986 KAR 2647..

15. The legal position is that this remedy which is available to the decree-holder is permissive and not mandatory. He can make successive applications for the issue of deliver, warrant. He cannot be penalised for not having taken actior under Order 21 Rule C.P.C 97 against resistance.

16. In Usha Jain v. Manmohan Bajaj . AIR 1984 MP 148. Full Bench of that Court considered this aspect; by reviewing several rulings on this point, held that executing Court had no jurisdiction to start an enquiry either suo moto or at the instance of third party regarding the title of the third party. Third party's remedy is under Order 21 Rule 100 C.P.C after he is dispossessed and not before. Similar view is expressed in K.A Prabhakaran v. Kuttian Prakashan . AIR 1985 Kerala 204.. It is held thus:

“A plain reading of Order 21 Rules 97, 98, 99, 100 and 103 makes it clear that no application for adjudication of the right, title and interest of an obstructor 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 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 the right, title and interest of the dispossessed obstructor and pass appropriate orders under Rule 100. No application under Order 21 Rule 97 would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree for eviction to which he is not a party.”

(emphasis supplied)

17. The consistent view of Rajasthan High Court as extracted in Shri Devi v. Kashiram . AIR 1984 Rajasthan 94. reads thus:—

“From the consideration of the case law, referred to above, the legal position emerges is that the provision of Order 21, Rule 97, C.P.C is only a permissive provision and not a mandatory one and the executing Court cannot compel or direct the decree-holder to move an application under Order 21, Rule 97 and a stranger to a decree for dispossession has no locus standi to move the executing Court, either informing it that he is in possession of the property in his own right and as such not bound by the decree or to claim investigation from the Court into the question of his right to continue to remain in possession of the property. Even when obstruction is reported by the officer executing the warrant of possession, still it is up to the decree holder to move an application under Order 21, Rule 97 C.P.C, or not.”

(emphasis supplied)

18. In Smt. Jairaji v. Firm Jayanath Prasad . AIR 1976 Allahabad 1. it was held that stranger to a decree cannot approach the Court by means of an application under Section 151 C.P.C and record his resistance or obstruction to delivery of possession of the property either to the decree-holder or purchaser, as the case may be, before he is dispossessed. Therefore the petition filed by petitioners under Order 21 Rule 97 is clearly not maintainable and it is rightly dismissed.

19. But Mr. Tarakaram maintained that the petitioner, who has resisted or obstructed the decree can set the machinery in motion and in such a case the objections filed by the decree-holder can be treated as an application under Order 21 Rule 97 C.P.C and relief could be granted to the resistor or obstructor. Reliance is placed on the following decisions:—

1) R.S Maddim Setty & Another… v. A.R.A Basith & Another… . 1979 1 KLJ 419.;

2) Chandrakant Mallappa Desai v. Misrimal Namai Oswal . 1984 1 KLJ 347.;

3) Manohar Ishwar Chittagi v. Gajanan . 1986 1 Bangalore Law Journal 244..

20. The first of these three cases, was prior to the amendment of C.P.C in 1976, decree-holder made an application under Order 21 Rule 97 C.P.C Revision was filed by the obstructor, who had invited a finding in his own right. This was negatived and revision was dismissed. The learned Judge agreed with the observations in Ramaiah v. Kumari Malliah . AIR 1962 AP 72., wherein it is categorically stated that:—

“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 C.P.C or any other provision of law.”

21. The second case dealt with staying of proceedings under Section 10 C.P.C The Court held that in view of the earlier suit to determine the status of the party, the proceedings initiated under Order 21 Rule 97 C.P.C should be stayed. That was a case where the objections filed by decree-holder to an application by the obstructor was treated as an application under Order 21 Rule 97 C.P.C I here was a specific order by the Court to treat it as such. In the instant case I.A II is dismissed as not maintainable. The respondents-decree-holders have specifically contended that the said application is not maintainable. Both parties invited order on that question. Moreover in view of the findings in M.F.A No. 1869/1983, there has been an investigation regarding the status of the petitioner and also a final adjudication; hence there is nothing to be stayed. Indeed, it was submitted by Mr. C.R.V Swamy that the Court while vacating stay in Misc. No. 425 1986, has already held that in view of the findings in MFA No. 1869/1983, the petitioner has no legal right and he is not in lawful possession. As mentioned above till 28-2-1987, petitioner continues his possession by virtue of order granted by Supreme Court, while rejecting S.L.P No. 11021/1986.

22. In the third case namely Manohar Ishwar Chitagi v. Gajanan, the Court was considering as to what is meant by resistance or obstruction and when does it occur and what is the remedy available. On the facts of that case it was held that obstructors were not the tenants and decree could not be executed against them. In the circumstances of that case it was observed that the objections of decree-holders can be treated as an application under Order 21 Rule 97. In the instant case decree-holders has raised an objection regarding the maintainability of the petition filed by the obstructors. In view of the settled legal position, as also, the provisions of Section 30 of the Rent Control Act and the findings in M.F.A No. 1869/1983, it becomes unnecessary to examine this legal aspect. Mr. C.R.V Swamy submitted that under Order 21 Rule 97 it is only the decree-holder that can approach the Court and secondly this has to be done within thirty days from the date of obstruction, as contemplated by Article 129 of the Limitation Act. He submitted that since provision is meant for decree-holders, exclusively, they need not seek relief by way of objections. In the instant case decree-holders have not asked for any relief; their I.A VIII seeking police help is still pending and it has yet to be dealt with. There is nothing in this decision which holds that the application by the obstructor is maintainable under Order 21 Rule 97 C.P.C Question of maintainability of the Petition was not raised as a preliminary issue. Parties led evidence and the lower Court recorded a finding that Respondents 2 and 3 were not tenants. In the instant case, that stage has not yet reached. Moreover the question whether Mahaveera II represented by Devichand is a tenant or not, stands concluded by the findings in M.F.A No. 1869/1983. Therefore, on the facts of this case, since the Court below has dismissed the Petition of the obstructor as not maintainable and that being the limited scope of this C.R.P and on that point, there being no divergent views, I hold that the application filed by the petitioner under Order 21 Rule 97 C.P.C was not maintainable. The lower court's finding is confirmed.

Point No. 3 - Maintainability of application under Section 10 C.P.C

23. Section 10 is invoked to stay the proceedings before the executing Court, on the ground that O.S 1507/1981, is pending and is instituted earlier. Section 10 contemplates the trial of two suits, between the same parties, in which matter is directly and substantially the same; in such a Case, the trial of the suit instituted subsequently had to be stayed. In execution, prior to 1976 amendment, two types of suits were contemplated; they are 1) Order 21 Rule 63 and 2) Order 21 Rule 103. After amendment, such suits cannot be entertained. The Order passed under sub-section (4) of Order 21 Rule 58 is treated as a decree similarly all questions of right, title and interest, decided in a proceeding under Rule 97 or Rule 99 shall be determined by the Court dealing with these petitions and separate suit is barred. Resultant position is, after the 1976 amendment there cannot be a suit dealing with the dentical issue, which is covered by Order 21 Rules 58, 97 or 99. If such a suit is filed, it is legally not maintainable and the only remedy available to the party would be to take steps as per Order 21.

24. As held above, the Petition filed by petitioner-obstructor was not maintainable under Order 21 Rule 87. The proceedings have no legal sanction. It is not a suit. In Ismailsab v. C.P Nanjunda Shetty . CRP 2413 of 1973 DD. 7-1-1974. it was observed -

“Section 10 is clearly not applicable to stay the eviction proceedings pending determination of fair rent by the Rent Controller. Section 151 also cannot be invoked unless execeptional circumstances are proved in the case.”

The same Learned Judge held in CRP/1118/1973 (D.D 1-8-1973)11, that Section 10 is inapplicable to the appeals pending before Assistant Commissioner in tenancy appeals, where a suit for declaration was pending. This was the position where the two proceedings were legally tenable. Situation would be worse if the suit is barred and the proceedings sought to be stayed are not legally maintainable. Courts cannot be a contributing party to the dilatory tactics. Indeed every attempt must be made for early adjudication. Moreover, in these proceedings, and between the same parties, it is already decided that the tenancy only with Jugraj and neither Mahaveera II nor Devichand have any tenancy rights. Their possession was traceable through Jugraj, who was a partner in Mahaveera II. In this situation petitioner cannot invoke Section 10 C.P.C; the said provision is not applicable. Hence Court below has rightly rejected I.A III.

25. For the foregoing reasons these petitions must fail; they are rejected with costs. Advocate's fees in each of these casts is Rs. 1000/- to be paid separately. Only respondents 1 to 4 would be entitled to costs.