This revision is from an order dated March 4, 1968, passed by the 1st Additional District Judge, Jabalpur, in Miscellaneous Judicial Case No. 6 of 1968. The petitioner in his revision has also mentioned the order dated March 2, 1968,
2. On March 2, 1968, the decree-holder auction-purchaser made an application under Order 21, rule 95, Civil Procedure Code, for possession of house Nos. 642 and 643, Madhatal, Jabalpur, previbusly known as "Sunder Vilas Theatre" and now known as "Plaza Talkies". The learned 1st Additional District Judge ordered issue of a warrant of possession. When the process server went to the premises of the Plaza Talkies, the Manager resisted delivery of possession and he wrote his protest on the warrant itself which was presented to him by the process server. The warrant remained un served and was returned by the process server.
3. Thereupon, on March 4, 1968, the auction-purchaser made another application under Order 21, rule 95, Civil Procedure Code, for issuance of a fresh warrant. The learned trial Judge passed the order under revision in these words:
"Nazir,
To re-issue the warrant for execution. The S.P. be directed to act with firmness in execution of warrant provided no physical resistance by fiancé is apprehended."
4. Before dealing with the correctness and validity of this order of March 4, 1968, let it be mentioned that on the same date the revision-petitioner made an application to the executing Court under section 151, read with Order 21, rule 96, Civil Procedure Code, and also made an application in Misc. Judicial Case No. 6 of 1968 for stay of re-issuance of the warrant. The learned Additional District Judge, on the stay application, made an order of stay "until further orders" and registered the petitioner's application under section 151, read with Order 21, rule 96, Civil Procedure Code, as Misc. Judicial Case No. 7 of 1968. He further ordered issuance of notice to the auction-purchaser and fixed a date for hearing of that application. About this last mentioned application of the revision-petitioner (Misc. Judicial Case No. 7 of 1968), I shall say something at the end of this order.
5. Coming back to the order dated March 4, 1968, passed in Misc. Judicial Case No. 6 of 1968 on the auction-purchaser's application of that date, it appears to me quite clear that the learned Additional District Judge did not fully apply his mind to the nature of the application and to the procedure which he was to follow with regard to that application. If he had done so, he would not have passed an order for re issuance of a warrant for execution and at the same time directing firmness to be adopted by the process server.
6. In this second application of March 4, 1968, which was styled by the auction-purchaser as one under Order 21, rule 95, Civil Procedure Code, he has stated the facts that on his application dated March 2, 1968, a warrant was issued and on the following day, that is, 3rd March, the process server went to the spot to obtain possession and the process server showed the warrant to Shri G. V. S. Chouhan, Manager, Plaza Talkies, who runs the Talkies on behalf of M/s. Supreme General Films Exchance (P) Ltd. and who holds the property on behalf of the judgment-debtors and as such is bound by the decree and who was, therefore, also bound to deliver possession to the auction-purchaser.
Reasons are given to show that the auction-purchaser is entitled to physical possession and then the application proceeds on to say :
"But he unlawfully resisted the delivery of possession and wrote on the warrant that he refuses to deliver possession. For all these reasons, M/s. Supreme General Films Exchange (P) Ltd., have no right to resist the delivery of the possession to the present auction-purchaser and his action is illegal and amounts to a contempt of the lawful authority of this Court."
(Italics by me).
Having said so, it was contended in the application that the process server ought to have delivered possession of the property by removing any person who refused to vacate the same and it was complained that the process server, instead of performing his duty, quietly submitted to this unlawful resistance and declined to execute the warrant by endorsing on it that Shri Chouhan refused to deliver possession. The prayer in this application was: -
"The said warrant be re-issued again for execution with direction to the process server to do his duty and deliver possession to the applicant by removing if necessary, from the premises Shri Chouhan or any other person who resists the delivery of possession on behalf of M/s. Supreme General Films Exchange (P) Ltd., or on behalf of any one of the judgment-debtors."
7. Now, I have before me the provisions contained in Order 21, rules 95, 96, 97, 98 and 99 of the Coda of Civil Procedure. There can be no doubt that the application of the auction- purchaser dated March 4, 1968, fell within the purview of rule 97 (1), which reads thus:
"Where the holder of a decree for the possession of immovable property or the purchase 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."
(Italics by me).
I have quoted above the relevant part of the application where the auction-purchaser complained of resistance or obstruction which was offered on behalf of the revision-petitioner. Rule 97 provides that when such a complaint is made, the Court shall fix a date for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. This is followed by the provisions contained in rules 98 and 99. Under the former rule, the Court has to investigate on the date fixed and where as a result of the investigation 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, the Court shall direct the applicant (i. e., auction-purchaser) to be put into possession of the property. If such order was passed and the judgment-debtor still resisted or obstructed, then the Court would pass an order to detain in civil prison the person insisting on resistance. This is what is provided in rule 98. On the other hand, if, as a result of such investigation under rule 97, 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 (i. e. the application complaining resistance under rule 97).
8. Thus, an analysis of these rules makes it very clear that on the auction-purchaser's application dated March 4, 1968, the executing Court should have fixed a date for investigating the matter and should have issued notice to the revision-petitioner. After enquiry, the Court should have passed an order either under rule 98, rule 99 as a result of its satisfaction on such investigation. The order to re-issue a fresh warrant with a direction to be firm could be issued only under rule 98, after such investigation but not before. The order dated March 4, 1968, must, therefore, be set aside as having been passed in exercise of jurisdiction with material irregularity in ignoring the procedure laid down in the law.
9. The real dispute between the parties as urged by Shri Dabir, learned counsel for the petitioner, is the one which was left open in the judgment passed in First Appeal No. 6 of 196ft between the parties. That, appeal arose from Civil Suit No. 13-A of 1963, for a declaration that the lease deed dated March 24 (correct date being 30th), 1956 was void and of no effect so far as the enforcement of the plaintiffs' decretal claim in Civil Suit No. 15-A of 1954 and also the decretal claim of plaintiff No. 1 in Civil Suit No. 3-B of 1952, was concerned. In that appeal, six contentions had been raised on behalf of the appellant who is now the revision-petitioner before me. Five contentions were rejected. The last contention was that that the appellant was entitled to protection under the M. P. Accommodation Control Act, 1961. The plaintiffs insisted that that question be left open. That question was, therefore, left open with these observations:
"The plaintiffs are satisfied with the declaration that the lease deed dated 24 (30) March 1956 taken by the appellant from the Bhatias is void and of no effect so far as the enforcement of the plaintiffs' decrial claim is concerned. In other words the plaintiffs' only attack is on the lease deed just mentioned. If the plaintiffs have chosen to seek a limited declaration and they do not want us to go into that question, we leave it open and it will be open to be agitated if and when a suit for eviction is instituted against the appellant. We do not say whether the appellant is or is not protected by the M. P. Accommodation Control Act, 1961, from eviction from the suit premises. The declaration which the trial Court has given is restricted to the lease deed dated 24 (30) March 1956 (Exh. D-8)."
In the result, that appeal was dismissed,
10. The question which was thus left open in First Appeal No. 8 of 1966 has to be decided. Whether it can be decided in the proceedings instituted by the respondents under Order 21, rule 97, Civil Procedure Code, is not for me to say at this stage. In this Court an application was made by the revision-petitioner on February 6, 1970, raising a new ground, namely, that the order of the executing Court making the sale absolute is still subjoined in the appeal filed by Surya Prakash Naidu. In my opinion, that application cannot be decided here.
11. It remains to be said that the application made by the revision-petitioner on March 4, 1968, styling it as one under section 151, read with Order 21, rule 96, Civil Procedure Code, was wholly ill-advised and incompetent. An application under Order 21, rule 96, can be made only by the auction purchaser. It appears that the revision-petitioner having come to know that the Court has ordered re-issuance of a warrant, he made that application under section 151, Civil Procedure Code, to seek an enquiry into his claim and it appears that just because he made that application, the executing Court registered it as M. J. C. No. 7 of 1968 and issued a notice to the auction-purchaser. As the main case is going back to the executing Court to proceed according to the provisions contained in Order 21, rules 97, 98, and 99, Civil 'Procedure Code, with the auction-purchaser's application dated March I, 1968, nothing more need be said ahout the revision-petitioner's application under section 151, read with Order 21, rule 96, Civil Procedure Code. The executing Court will dispose of that application by an appropriate order.
12. Shri Seth, learned counsel for the auction-purchaser, stated that he had raised a preliminary objection that this revision was wholly unnecessary, when the trial Court had ordered an enquiry on the petitioner's application of March 4, 1968. In spite of this, the petitioner continued to prosecute this revision. Two years have been spent in this Court. He made an application for early hearing of this revision, but it could not be heard because, in the meantime, one of the parties died and proceedings were taken to bring on record his legal representatives.
13. From the above discussion, it is clear that the order dated March 4, 1963, passed in Misc. Judicial Case No. 6 of 1968, for re-issuance of a warrant with certain directions to the Nazir, could not be made.
14. The revision is allowed. The case shall now go back to the executing Court for proceeding with the auction-purchaser's application of March 4, 1968, in accordance with law, keeping in view the provisions contained in Order 21, rules 97, 98 and 99 of the Code of Civil Procedure and in the light of this order. In the circumstances of the case, parties shall bear their own costs.
15. The amount deposited by the revision-petitioner in compliance with the interlocutory order passed in this revision on August 19, 1969, shall remain in deposit in the executing Court until an order for disbursement is passed by a competent Court in an appropriate proceeding.
Revision allowed.