1. If in the course of the execution of a decree for the delivery of any immovable property, a person in possession of the property, who is not a party to the decree, prefers an objection on the allegation that he is not bound by the decree, can the executing Court reject the application on the ground that such an application is not maintainable and continue to proceed with the execution? This is the question involved in this revision which shall succeed if the answer to the question is in the negative, while an affirmative answer would entail its dismissal.
2. The answer to this question would depend on a proper construction of the relevant Rules contained in O. XXI of the Civil P.C relating to the execution of decrees for the delivery of any immovable property. It may be noted that the Code of Civil Procedure, which is followed in Sikkim, is the Code as it stood on the 26th April, 1975 when Sikkim was incorporated in the Union of India as a component State. Rule 35(1) provides that 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. Rule 97(1) provides that when the holder of a decree for the possession of any immovable property 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, and on such an application being made, the Court is required to investigate the matter under R. 97(2). Rule 98 provides that where the Court is satisfied that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some person at his instigation, it shall direct that the decree-holder be put into possession of the property and if the latter is still resisted or obstructed, the Court may order the judgment-debtor or such person acting at his instigation and causing such resistance or obstruction to be detained in civil prison. Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor and that he claims 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 dismiss the application filed by the decree-holder under R. 97. Rule 100 provides that if in execution of a decree for the delivery of possession of any immovable property, any person other than the judgment-debtor is dispossessed, such person may make an application to the Court complaining of such dispossession and on such an application being made, the Court is required to investigate the matter under R. 100(2), and R. 101 provides that Where the Court is satisfied that such person was in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall direct that such person be put into possession of the property. Ex facie, therefore, these Rules envisage application by a decree-holder only when he is resisted or obstructed in obtaining possession of the property and by any person other than judgment-debtor only when such person is dispossessed of the property. There appears to be no express provision providing for any application to the executing Court by a person other than the judgment-debtor unless he is dispossessed by the decree-holder. The absence of any such provision led the executing Court to reject the application of the revision/petitioner as the executing Court did not find the application to be one under Section 47 between the parties and their representatives and did not find any other express provision to enable it to entertain the application of the present nature by a third party.
3. The absence of an express provision enabling a party to move the Court cannot invariably indicate the absence of the right to do so. If law grants a right, the right to move the Court to enforce that right must be implied. Otherwise a party is to be regarded to have no right to apply for, say, stay under Sec. 10 or for revision under Section 115 of the Civil P.C or, say, for bail or for an order under S. 144, Criminal P.C, as there exists no provision in those Codes expressly providing for such application. But this would be against one of the most elementary principles of law and justice enshrined in the maxim “Ubi Jus, Ibi Remedium”. As observed by Vivian Bose, J., in the decision of the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah (AIR 1955 SC 425 at 429), “there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them”, and that “our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle”.
4. Now, as already noted, R. 35(1) commands delivery of a possession to the decree-holder to be effected, if necessary, by removing “any person bound by the decree who refuses to vacate the property”. The expression “any person bound by the decree” does not mean those persons only who were parties to the suit and are parties to the decree, but would also include persons who were and are not such parties. For example, as pointed out by the Supreme Court in Importers and Manufacturers Ltd. v. Pheroze Framroze (AIR 1953 SC 73 at 75), a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person, whether or not he was or was not party to the suit. Again, as pointed out by the Privy Council (Gur Narayan v. Sheo Lal, AIR 1918 PC 140) and also by the Supreme Court (Ragho Prasad v. Krishna, AIR 1969 SC 316), a real owner is a “person bound by the decree” obtained against the benamidar, even though the former was not a party to the suit or the decree. A decision as to whether a person, not a party to the decree, is yet a “person bound by the decree” cannot be arrived at by a mere look at the decree but requires judicial consideration and, therefore, if a person who is not a party to the decree but who is in possession of the property decreed and whose possession is likely to be adversely affected by the threatened execution, contends that he is not bound by the decree, natural justice would inevitably require that he must be heard before proceeding with the execution likely to affect him prejudicially. As already noted, Rule 35(1) contemplates opposition to the delivery of possession by a person “who refuses to vacate the property” and it would be against all principles of natural justice to smother all opposition and refusal by a person claiming bona fide not to be bound by the decree under execution, without giving him a reasonable opportunity of being heard. As pointed out by this Court in Gajinder Singh v. Union of India (AIR 1981 Sikkim 9 at 13), statutory provisions, which are capable of being construed in two ways, one conforming with and the other conflicting with, the principles of natural justice, the Court must accept the construction which will be in consonance with such principles, unless their operation is ruled out expressly or by irresistible implication. As already noted, the mandate of the Supreme Court in Sangram Singh's case (AIR 1955 SC 425 at 429) (supra), is also to the same effect, namely, “our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle”.
(Emphasis supplied.)
5. Mr. Sarkar, the learned Advocate appearing for the respondent/decree-holder, endeavoured to urge that since Rule 97 expressly contemplates resistance or obstruction to the delivery of possession by a party not bound by the decree and since that rule expressly provides for an application by the decree-holder to the Court for investigating the matter where the person resisting or obstructing would get reasonable opportunity of being heard, R. 35, which ex facie does not provide for any application by or hearing to such a party, does not require to be construed to cover such application and hearing, by superadding the principles of natural justice thereto. But that would then mean that a party in possession, even though he is not bound by the decree, cannot take the shelter of law to prevent execution of a decree, but must allow the execution to proceed and then to take the law in his hands to resist or obstruct the delivery of possession with all the attending risks of breach of the peace, not or other lawlessness. I think I should be inclined to accept that construction of R. 35 which would promote law and order in preference to the one which might create law and order problem.
6. But as already indicated, the main reason for which I am inclined to construe Rule 35 so as to permit any person in possession claiming not to be bound by the decree to apply for the determination of that claim, is that such a construction would make the rule more reasonable and consonant with the principles of natural justice. I cannot persuade myself to think that even though the main purpose of R. 35 is to put the decree-holder in possession of the property by removing, if necessary, all persons bound by such decree, a person in possession of the property and claiming in good faith not to be bound by the decree, must be denied a hearing and be driven either to resist and obstruct the delivery of possession by whatever means he can or to a regular suit. I would not like to have any doubt that after the decree is put into execution under which a person bound by the decree can be physically removed, a person in possession of the property and claiming bona fide not to be bound by the decree has a right to be heard and to have it decided as to whether he is bound by the decree before he is compelled to resist or obstruct me delivery of possession or to file a regular suit. And if he has such a right under the law, then his right to file an application for the exercise of that right cannot but be implied as a matter of course, whether under Section 151, Civil P.C or otherwise.
7. In the Division Bench decision of the Calcutta High Court in Sheikh Yusuf v. Jyotish Chandra (AIR 1932 Cal 241), a person in possession of the property and claiming not to be bound by a decree of ejectment against his lessor “made an application under S. 151, Civil P.C, in which he urged that he could not be affected in execution of the decree against his lessor but that the proper procedure to be followed by the decree-holder was under O. XXI, R. 97, Civil P.C”. The executing Court on such an application proceeded to determine the question as to whether the petitioner could be ejected in execution of the decree against his lessor or whether it was incumbent on the decree-holder to proceed under O. XXI, R. 97, and after considering the facts of the case and the law, the executing Court held that as the petitioner was a sub-tenant under the judgment-debtor, he was bound by the decree within the meaning of O. XXI, R. 35 and ordered that the decree-holder be delivered khas possession in execution of the decree and this course was upheld by the High Court in revision. This decision is, therefore, a clear authority for the proposition that a person in possession of the property and claiming in good faith not to be bound by the decree can approach the executing Court by an application for the determination of the question as to whether he is bound by the decree and, that is what has precisely been done by the revision petitioner in this case. As the executing Court has pointed out in the impugned order, it was urged before it by the revision petitioner that his application may be treated as one under S. 151, Civil P.C, whereunder the application in the Calcutta case cited was also filed. This Division Bench decision in Sheikh Yusuf v. Jyotish Chandra (supra) has been referred to with approval in a later Division Bench decision of the same High Court in Sailendra Nath v. Bijanlal (AIR 1945 Cal 283) and both these decisions appear to have been noted with approval by the Supreme Court in Jagatguru Gurushiddaswami v. Dakshina Maharashtra Digambar Jain Sabha (AIR 1953 SC 514).
8. In the Assam High Court decision in United Bank of India v. J.C Mitra (AIR 1962 Assam 150), the opposite parties obstructed the delivery of the possession and the decree-holder accordingly applied under O. XXI, R. 97. But the decree-holder nevertheless contended that as to whether the opposite parties were or were not bound by the decree was also to be determined by the executing Court under O. XXI, Rule 35. The decree-holder having already resorted to O. XXI, R. 97, the question was no longer relevant or pertinent. But Mehrotra, C.J, sitting singly, appears to have held that the question whether the opposite parties were or were not sub-tenants of the judgment-debtor and, as such, bound by the decree, was not to be gone into except in an investigation under O. XXI, R. 97. The learned Chief Justice referred to the Calcutta Division Bench decision in Sheikh Yusuf v. Jyotish Chandra (AIR 1932 Cal 241) (supra) but proceeded to distinguish the same on the ground that as in the Calcutta case the person in possession admitted to be the subtenant of the tenant/judgment-debtor, the question as to whether he was bound by the decree could be gone into in that case. It is true that because of such admitted position, it was easily possible in that Calcutta case to hold the person in possession to be bound by the decree under O. XXI, R. 35. But if in a given case, it is not possible to hold that such a person in possession is bound by the decree, the executing Court obviously cannot proceed with the execution under O. XXI, R. 35, as under that Rule a person in possession can be proceeded against only when he is found to be bound by the decree and in such case the executing Court cannot but stay its hands leaving it to the decree-holder to proceed under O. XXI, R. 97 or otherwise, as he may think fit. I am, therefore, of opinion that in the case at hand if the executing Court could not, as it did not, hold the revision petitioner to be bound by the decree, it ought to have stayed its hands and not to have ordered the execution to proceed.
9. The decision of the Division Bench of the Madhya Pradesh High Court in Bhagawat v. Kasturi (AIR 1974 Madh Pra 26) to which my attention has been drawn by Mr. Kharga, the learned Advocate appearing for the revision petitioner, is also clearly to that effect. The Division Bench has observed that “apart from the judgment-debtor, if any other person is to be removed, the executing Court has to be satisfied that such person is bound by the decree” and “otherwise the executing Court has no jurisdiction to remove a third person who is not bound by the decree and who refuses to vacate the property” and that “the language of O. XXI, R. 35 supports this view”.
10. If after a decree-holder has put the decree for delivery of possession of any immovable property into execution, any person in possession of the property files an application opposing the execution on the ground that he is not bound by the decree, he is obviously resisting the execution of the decree and the consequential delivery of possession, within the meaning of R. 97. The word “resistance” cannot mean physical resistance only, but a clear expression of an intention by a person not to vacate the property through an application on the assertion that he is not bound by the decree is a sufficient resistance within the meaning of Rule 97 and if thereupon the decree-holder does not take step by filing an application under that rule, the executing Court cannot proceed with the execution, unless it holds that the objector is bound by the decree. That is also the view held by a learned single Judge in Mahabir Pershad v. Delhi Traders (AIR 1977 Delhi 45 at 46) to which also my attention has been drawn by Mr. Kharga and which has followed the Madhya Pradesh decision in Bhagawat v. Kasturi (AIR 1974 Madh Pra 26) (supra). As already noted, in the Division Bench decision of the Calcutta High Court in Sheikh Yusuf v. Jyotish Chandra (AIR 1932 Cal 241) (supra), such an application, purported to have been made under Sec. 151, Civil P.C, was entertained, and the execution was proceeded with after holding the appellant-objector to be bound by the decree. The executing Court, therefore, was wrong in holding that such an application cannot lie.
11. The executing Court in this case did not hold that the revision petitioner was bound by the decree and, therefore, he was wrong in ordering execution case to proceed, which he could do only if he could hold the revision petitioner to be bound by the decree. That being so, the executing Court should have stayed its hands in the matter leaving it to the decree-holder to proceed under Rule 97 or in such other manner as he might have thought fit. As the executing Court has no jurisdiction to proceed with the execution case when a third party in possession objects to the execution, unless he holds the objector to be bound by the decree, the executing Court in the case at hand exercised its jurisdiction illegally and with material irregularity to attract the revisional jurisdiction of this Court.
12. Mr. Sarkar has submitted and Mr. Kharga has also admitted that the revision petitioner has, after initiating this revision proceeding, filed a suit in the Court of the Civil Judge for a declaration that he is not bound by the decree and for consequential reliefs and Mr. Sarkar has accordingly urged that no interference in revision would any longer be justified. There is, however, nothing on record to show the nature of the suit, the reliefs claimed and the order, if any, already passed therein. At any rate, the impugned order of the executing Court assailed before me, namely, the order rejecting the application of the revision petitioner on the ground that the same is not maintainable under law, cannot be challenged in any suit and after hearing the matter at full length and finding a clear case of illegal exercise of jurisdiction I do not think that I would be exercising a proper jurisdiction if I leave the matter at that. No one can speculate about the ultimate result of such a suit and if it fails for any reason, the question of executing the decree, which the executing Court has ordered to proceed by the impugned order, will again arise. It is, therefore, very much necessary that the executing Court be made aware that it has gone wrong in rejecting the application and ordering the execution to proceed without deciding that the revision petitioner is bound by the decree and the order must be quashed to that extent.
13. Mr. Sarkar has submitted that filing an application by the decree-holder under Rule 97 complaining of the resistance posed by the application would now be futile in view of the suit filed by the revision petitioner and would result in unnecessary multiplicity of proceedings. There is no obligation on the decree-holder to file such an application and he may not do so, if he is so advised. All that I have said is that after the executing Court found that a third party in possession was objecting to the execution of the decree by filing an application to that effect, the executing Court, without holding the party to be bound by the decree, could not reject the application as not maintainable under the law and order the execution to proceed and that the decree-holder in that circumstances, could have filed an application under R. 97.
14. The revision, therefore, succeeds and the order of the executing Court ordering execution to proceed is quashed. No order as to costs.
Revision allowed.