1. This Rule was obtained at the instance of the decree-holder and is directed against the Munsiff's order passed on an application filed by Opposite Party No. 1 under the provisions of Or. 21, r. 99 of the Code of Civil Procedure.
2. The petitioner obtaining a decree for possession against Md. Omar (Opp. Party No. 2) in a suit for eviction in respect of a room which was the subject-matter of the tenancy started the execution on September 18, 1959. The petitioner was resisted by Opp. Party No. 1 and the Writ of possession was returned unserved. On November 9, 1959 the decree-holder petitioner filed two applications—one, praying for police help; and another, for possession, after breaking the padlocks of the door, if necessary, on which inter alia the following order No. 2 was passed on November 9, 1959 by the learned Munsiff:
“The petition praying for Police help will be allowed on Rs. 37/6/- being deposited by 19.11.59 The petition praying for breaking open the padlock be put up on 19.11.59”
3. After the amount of cost was deposited, the learned Munsiff passed an order (No. 3) on 12th November, 1959 directing Police help without waiting up to the 19th and directing the breaking of the padlock, if necessary. The writ of delivery of possession was directed to be issued, fixing November 28, 1959 for return. These two orders dated 9th and 12th November were passed admittedly without notice to the Opposite Party No. 1, who filed the application as stated, under the provisions of Or. 21, r. 99, of the Code of Civil Procedure, alleging that he was a monthly tenant under the judgment-debtor, Mr. Omar, (the Opposite Party No. 2 herein) ‘in his own right’ and that he was holding the suit premises ‘on his own account’, ‘in good faith’ and independently of the judgment-debtor. On evidence, the learned Munsiff by his order dated June 28, 1963 (order No. 56) not only allowed the said application under Or. 21, r. 99, of the Code but refused the decree-holder's prayer for possession through the Police help. The decree-holder petitioner through his learned Advocate Mr. Amal Kumar Ghoshal, is now challenging only the said order of June 28, 1963 in the instant Rule, principally on the ground that the Opposite Party No. 1, even assuming (though not admitting) that he is a third party or a bonafide claimant has no locus standi to maintain the application under Or. 21, r. 99, of the Code. Mr. Chandra Nath Mukherje, the learned Advocate for Opposite Party No. 1, is equally emphatic in his submissions for acceptance of the view opposite.
4. There being, as stated, no direct authority on the point and for appreciating the few decisions cited at the Bar it would be appropriate to notice the development of the law beginning from the Code of Civil Procedure, 1859 sections 229 and 269 of which, run as follows:—
“CCXXIX: If it shall appear to the satisfaction of the Court that the resistance or obstruction to the execution of the decree has been occasioned by any person, other than the defendant, claiming bonafide to be in possession of the property on his own account, or on account of some other person than the defendant, the claim shall be numbered and registered as a suit between the decree-holder as plaintiff and the claimant as defendant, and the court shall, without prejudice to any proceedings to which the claimant may be liable under any law for the time being in force for the punishment of such resistance or obstruction, proceed to investigate the claim in the same manner and with the like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of this Act, and shall pass such order for staying execution of the decree, or executing the same, as it may deem proper in the circumstances of the case.”
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“CCLXIX: If it shall appear that the resistance or obstruction to the delivery of possession was occasioned by any person, other than the defendant, claiming right to the possession of the property sold as proprietor, mortgagee, lessee, or under any other title, or if in the delivery of possession to the purchaser any such person claiming as aforesaid shall be dispossessed the Court, on the complaint of the purchaser, or of such person claiming as aforesaid, if made within one month from the date of such resistance or obstruction or of such dispossession as the case may be, shall inquire into the matter of the complaint and pass such order as may be proper in the circumstances of the case. The order shall not be subject to appeal, but the party against whom it has given shall be at liberty to bring a suit to establish his right at any time within one year from the date thereof.”
5. The provisions of the said section 229 after being modified, appeared as section 331 in the Civil Procedure Code of 1877 repeated in the Code of 1882. Similarly, section 269 of the Code of 1859 as modified became section 335 of the Codes of 1877 and 1882. Sections 229 and 269 substantially correspond to sections 331 and 335 respectively. Sections 331 and 335 of both the Codes of Civil Procedure of the years 1877 and 1882 are in similar terms and they are as follows:
“331: If the resistance or obstruction has been 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 claim shall be numbered and registered as a suit between the decree-holder as plaintiff and the claimant as defendant;
(a) and the Court shall, without prejudice to any proceedings to which the claimant may be liable under the Indian Penal Code or any other law for the punishment of such resistance or obstruction, proceed to investigate the claim in the same manner and with the like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of Chapter V,
(b) and shall pass such order as it thinks fit for executing or staying execution of the decree.
6. Every such order shall have the same force as a decree, and shall be subject to the same conditions as to appeal or otherwise.”
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“335: If the purchaser of any such property is resisted or obstructed by any person, other than the judgment-debetor claiming in good faith a right to the present possession thereof, or if, in delivering possession thereof, any such person is dispossessed, the court, on the complaint of the purchaser or the person so dispossessed, shall inquire into the matter of the resistance, obstruction or dispossession, as the case may be, and pass such order thereon as it thinks fit.
The party against whom such order is passed may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit, if any, the order shall be final.”
7. Section 331 without the procedural part substantially corresponds to Or. 21, r. 99 of the Code of 1908 and section 335 is spread over to Rules 97, 99, 101 and 103 of the present Code.
8. The provisions of Or. 21, rr. 97, 98 and 99 of the present Code of Civil Procedure, 1908 are in the following terms:
“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) The 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.”
9. By our amendment the words “or on his behalf” were inserted after the words “at his instigation” appearing in Rule 98 at two places. Similarly, the words “to have a right” after the words “in good faith” in Rule 99 were inserted by the Calcutta amendment.
10. It will be noticed that amongst others the words ‘defendant’ and ‘bona-fide’ in section 229 of the Code of 1859 have been replaced by the words ‘judgment-debtor’ and ‘in good faith’ in section 331 of the later Codes, introducing also the provisions of Indian Penal Code and Chapter V therein It might also be noticed that the words “proprietor, mortgagee, lessee” appearing in section 269 were deleted from section 335 of the later codes introducing the ‘present’ possession. The periods of one month and one year respectively were introduced for the first time in section 335.
11. In my view Rules 97, 98 and 99 of Or. 21 are to be read together. If there is the resistance to delivery of possession to the decree-holder or purchaser, it appears to me on construction of the Rules, that only they can apply under the provisions of Or. 21, r. 97. Rule 98 deals with two classes of cases viz., where the obstruction is occasioned without just cause (1) by the judgment-debtor or (2) by some other person at his instigation. But Rule 99 deals with two cases of claims in good faith viz., (1) persons claiming on their own account and (2) person claiming on account of some other person other that the judgment-debtor. In my opinion Rule 99 is not an independent pro vision but is dependent on Rule 97. Though the procedural part as laid down in sections 229 and 269 under the Code of 1859 and in sections 331 and 335 of the Codes of 1887 and 1882 were omitted from Rule 99 of Or. 21, and the decisions under the old Codes discussed hereafter might be distinguished on the said ground, in my view, on the construction of the language appearing in the said Rule 99 read with Rules 97 and 98 of Order 21, there is no warrant or authority for the proposition that a third party and/or a bonafide claimant has got locus standi to maintain an application under Or. 21, r. 99 of the Code of Civil Procedure. The decisions under the present Code, also discussed hereafter, do not hold the contrary view.
12. Turning now to the reported decisions specially on section 229 of the Code of 1859, in the case of Maharajahdhiraj Mahatab v. Mst. Nadurunnissa. (1) reported in 1 Wyman's Reports (civil rulings) page 25, it appears that after the Maharaja took out an execution, Begum Nadurunnissa obstructed and claimed bonafide to be in possession of the property on her own account. The Lower Courts referred the Raja to a regular suit. The said orders were reversed by Loch and Glover, JJ. holding inter alia that the claim should have been numbered and registered as a suit between the Raja decree-holder, as plaintiff and the claimant as defendant. The next decision is that of Buhal Singh v. Behareelall (2) reported in 10 W.R (civil rulings) page 318. It appears that the Court of first instance rejected the plaintiff's application filed under section 229 of the Code of 1859 complaining that the defendants, having obtained a decree against a third party were attempting unlawfully to interfere with his possession. On appeal the Judge decided that the application was untenable under section 229 and remanded the case for trial. The first Court then gave the plaintiff a decree which the Subordinate Judge reversed on appeal. On the objections being taken that the proceedings were illegal, Jackson, J. held inter alia that the plaintiff's claim could not be made under section 229. The Bench was composed of Jackson and Dwarkanath Mitter JJ. but as Mitter, J. was of a different opinion, Jackson, J. gave effect to his judgment under the 36th section of the Letters Patent and directed that the appeal be dismissed. Though the decision in the case of Shadhoo Sum v. Bhuggoo Lall (3) (12 W.R 98) on sections 226 and 227 of the Code of 1859 has got no application to the instant case, but the court could not be put in motion by a third party under section 226 (Or. 21, r. 97)—see Bibee Mahtab v. Koomaree, (4) 19 W.R 62.
13. Under the Code of 1882, the first Bench decision in the series is a case between F.D Raikut v. Rani Jugodishwari, (5) I.L.R 14 Cal. 234 where, on execution of a decree for possession against a person who resisted the same, claiming the property as his own, it was held inter alia that the claim application should be treated as a plaint within section 331 of the Code between the decree-holder as plaintiff and the claimant as defendant. In the Allahabad decision of Mahabir Prosad v. Parma (6) reported in I.L.R 14 All. 417 the Munsif gave effect to the objection of a third party holding that the decree was incapable of execution, on which the plaintiff sued for establishment of his right to possession and having lost before the Subordinate Judge succeeded in the High Court, their Lordships, approving Buhal Singh's case (supra) held that the proceedings before the Munsif were without jurisdiction and his order was nugatory. It was held in a Bench decision of this Court in the case of Srinath v. Annoda (7) reported in 1 C.W.N 192 that the auction purchaser having once been put into possession, by the execution of the decree cannot maintain a second application and cannot have another enquiry under section 331 when he was subsequently turned out by a proceeding of law, which is not the case here. Sir Ashutosh Mukherjee in the Bench decision of Braja Bala v. Gurudas (8) reported in I.L.R 33 Cal. 487 : 3 C.L.J 293 held inter alia that the judgment-debtor was not competent to make an application under section 335. Woodroffe, J. sitting in a Division Bench in the case of Sukhan Singh v. Baijnath, (9) reported in 12 C.W.N 115, gave effect to the contention of Babu Digambar Chatterjee in 1907 and held, of course without giving any reason, that section 331 was limited to an application by the decree-holder. In the case of Baranagore Jute Factory v. Rajkumar (10) reported in 13 C.W.N 724, their Lordships observed in a different context that the procedure under section 335 differs very materially from that under section 331. Their Lordships of the Madras High Court in the case of K. Menon v. Secretary of State (11) reported in 21 M.L.J 407, observed that the defendant was not entitled to come in under section 331 of the Code or any other claim section of the Code.
14. Turning now to the present Code, the decision of Rankin J. sitting singly, in the case of Ezra v. Gubbay (12) reported in I.L.R 47 Cal. 907. It was a case of resistance by a sub-tenant to the delivery of possession, applied for by the decree-holder under the provisions of Or. 21, r. 97. It was held that Rule 101 which dealt with exactly the same class of persons as Rule 99, dealt with that class after and not before dispossession. On the point whether the sub-lessee, though not a party to the suit was bound by the ejectment decree Rankin J.'s negative view in the said decision was not accepted in the case of Ramkissen v. Binjraj (13) reported in I.L.R 50 Cal. 419 : A.I.R (1923) Cal. 691 which later decision was approved by a Bench decision of this Court (Suhrawardy and Graham, JJ.) in the case of Yusuf v. Jyotish (14) I.L.R 59 Cal. 739 : A.I.R (1932) Cal. 241. The decision of Sailendra v. Bijanlal (15) reported in I.L.R 1947(1) Cal. 270 : 49 C.W.N 133 binds a sub-tenant by the decree for eviction of the tenant, based on a ground which determines the sub-tenancy. The said decision of Rankin J. in Ezra's case was not approved by Macleod, C.J of the Bombay High Court in the case of Jairam v. Nowroji, (16) reported in A.I.R (1922) Bom. 449 : 23 Bom. L.R 1316 who maintained his own decision in the case of Jafferji v. Miyadin, (17) reported in I.L.R 46 Bom. 526 : A.I.R (1922) Bom. 273 and assisted by Messrs. B.J Desai, Jinnah and Setalvad, held that a sub-tenant could not claim under Rule 99. The Supreme Court in the case of Importers and Manufacturers Ltd. v. P.F Taraporewala (18) reported in 1953 S.C.R 226 : A.I.R (1953) S.C 73 has finally laid down the law that the decree for possession against a tenant is binding on the person claiming title under or through the tenant though he might not be a party to the suit. There was no occasion for Rankin C.J to decide the present issue in the case of Bhim Naik v. Chakradhar (19) 34 C.W.N 577 : A.I.R (1930) Cal. 438, as sought to be argued. In the case of Kiron Sashi v. Official Assignee (20) reported in 36 C.W.N 963 : A.I.R (1933) Cal. 296 cited by Mr. Ghoshal, Rankin C.J sitting with Costello, J. in dealing with the question of constructive res judicta and as to the bar of limitation under Article 11A of the Limitation Act, to a suit for possession; after dismissal of the application, filed under Or. 21, r. 97; observed that only the decree-holder has got locus standi to file an application under Or. 21, r. 97 though nothing has been stated on Rule 99. The said decision was however explained by Lahiri, and A.N Ray JJ. in the case of P.N Pathak Sharma v. Sm. Renuka Debi (21) reported in A.I.R (1959) Cal. 613 where also the questions of limitation and of fresh writs on successive resistance, arose. Their Lordships agreed with the decision of P.B Mukharji, J. in the case of Official Trustee v. Manmatha Nath Sadhukhan (22) reported in 91 C.L.J 55 : A.I.R (1953) Cal. 499 in which his Lordship reviewed all the cases bearing on the point of limitation.
15. Three other decisions, viz., Usha Rani v. Jagabandhu (23) reported in A.I.R (1955) Tripura 30, Shyamlal v. Ahmad Bhat (24) reported in A.I.R (1957) Jammu & Kashmir 23 and Amulya Chandra v. Haridas (25) reported in A.I.R (1958) Tripura 11 are cited by Mr. Ghosal. The first Tripura decision deals with only Rule 100 and does not touch the present issue. The Kashmiri decision that Rule 98 is dependent on Rule 97 and the decree-holder's remedy is by an application under Rule 97 is nothing new. The second Tripura case again relies on this Court's decision (see Sukhan Singh (supra) and holds that the right to apply under Or. 21, r. 97 is given only to the decree-holder. One of the latest cases cited, is a decision by Guha, J. in the case of Deokaran v. Satyendra (26) reported in 63 C.W.N 361 : A.I.R (1959) Cal. 621 which is not a decision on the point raised in this case though there are some discussions on Or. 21, r. 99 of the Code.
16. Particular reliance was placed by Mr. Mukherjee, learned Advocate of the Opposite Party, on the decision of P.N Mukherji, J. sitting singly, in the case of Jagat Lakshmi v. Gulam Hossain (27) reported in 60 C.W.N 147 which has been relied on by the learned Munsiff in support of the proposition that a bonafide claimant has locus standi to maintain an application under the provisions of Or. 21, r. 99 of the Code. In my view, the learned Munsiff did not read the decision correctly. The said decision is not an authority for the said proposition. It was rather held that a sub-tenant had no locus standi to make an independent application under Or. 21, r. 97 of the Code but he would be entitled to a notice and to a hearing.
17. Therefore, on the construction of Rule 99 of Order 21 of the Code, it appears to me that a third party or a person 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 or a person claiming bonafide to have a right to be in such possession, none of the said classes of persons have locus standi to make an independent application under the said provisions of Or. 21, r. 99. The decisions under the Codes of 1859 and 1882 though support the said view of mine but they cannot be strictly availed of in interpreting rule 99 of Order 21 of the present Code, because the procedural part viz., that the decree-holder would only be the claimant or the plaintiff in the enquiry is omitted from rule 99. Similarly, the decisions under the present Code even if read together, which again cannot be strictly availed of rather supports my view indirectly.
18. For these reasons the order dated June 28, 1963 in its entirety passed by the learned Munsif, both in allowing the Miscellaneous case and in refusing the police help is set aside. Mr. Mukherjee made a grievance that the said point of locus standi was not pointedly taken in the Trial Court as it done here but his client is not prejudiced; as the learned Munsif noticed the point in his favour and sufficient opportunity was given here to Mr. Mukherjee to substantiate the order if he can, on the said pure question of law, arising on no new evidence, which I have allowed Mr. Ghoshal to agitate.
19. By the said order, the learned Munsif also refused the Police help to the petitioner. It does not appear that the matter has at all been considered by him except that the fact of filing such an application for police help was only noted by him in the beginning of the order and the police help was ultimately refused in the ordering portion, without any discussion or reason in the body of the order. In his anxiety he even forgot to set aside or to recall or even to take notice of the two previous orders Nos. 2 and 3 dated 9th and 12th November, 1959 granting police help to the petitioner.
20. But then again the orders granting Police help to the petitioner, noticed earlier, were passed on 9th and 12th November, 1959 admittedly without service of the notice to the opposite Party No. 1 which are illegal and are also fit to be set aside. It is now well settled by this Court that (1) the party, against whom an order for Police help is made, is entitled to notice and that (2) the bonafide nature of the claim and that whether the party is entitled as of right to be in possession, are relevant matters for consideration in exercise of the Court's discretion to deal with the case for Police help (see Dasgupta and Lahiri, JJ. in Sew Sankar v. Bejoy Krishna (28) 57 C.W.N 65 : A.I.R (1953) Cal. 218). P.N Mookerjee, J. in the said case of Jagat Lakshmi (supra) inter alia held that the party (a sub-tenant) would be entitled to a hearing, after giving him proper opportunities to place all relevant materials in support of the case of resistance. Bachawat, J. in the case of Gaya Nath v. Amulya (29) reported in 61 C.W.N 164 : A.I.R (1957) Cal. 258 after reviewing many decisions including the decision of Sen, J. in Bhupesh v. Dr. M.N Bose (30) reported in 56 C.W.N 832, followed the principles laid down by Dasgupta, J. (as his Lordship then was) and P.N Mookherjee, J. in the said two decisions. With respect I only intend to add that the decision in Sukhan Singh's case (supra) as referred to by Bachawat, J. at p. 167 was under the Code of 1882 and not under Or. 21, r. 97 of the present Code; and that the form (referred to at p. 168) as amended by this Court is Form No. (P) 49 of Civil Rules and Orders (both the Editions of 1935 and 1958).
21. In the circumstances and as the whole case is before me in revision, I set aside also the said two orders Nos. 2 and 3 dated 9th and 12th November, 1959 respectively in so far as they allow the police help to the petitioner.
22. I direct the learned Munsif to decide the two applications of the decree-holder petitioner for possession and for police help filed on 9th November, 1959 in the light of the observations made above, and on the materials on record. There would be no fresh evidence but the learned Munsif would be entitled to take note of the fact of non-payment of rent and other facts appearing on the record. The application of the Opposite Party No. 1 purported to be filed under Or. 21, r. 99 should be treated as a petition of objection to the said two applications of the petitioner. The learned Munsif should make every possible attempt to dispose of the matter as early as possible.
23. The Rule is therefore made absolute without any order as to costs. Let the records be sent down without delay.
P.N.C