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Bhaskaran v. Sheela .
Factual and Procedural Background
The appellant was the original owner of 88 cents of land and the building erected thereon. In 1986 he allegedly borrowed Rs 50,000 from the husband of Respondent 1 and, as security, executed a conveyance of the property in Respondent 1’s favour. On the same day the appellant’s wife allegedly signed a blank paper later converted into a rent deed. Separately, the property was attached in OS No. 176 of 1982 filed by Syndicate Bank against the appellant.
Respondent 1 sued for recovery of possession (OS No. 239 of 1990) and obtained a decree in 1990. The appellant appealed (AS No. 609 of 1992). During the pendency of that appeal, Respondent 1 initiated rent-control proceedings (RCP No. 292 of 1993) against the appellant’s wife for non-payment of rent and for own-use requirement. Although initially dismissed, Respondent 1 succeeded on appeal (RCA No. 197 of 1994). In a common judgment dated 2-4-2004, the High Court upheld Respondent 1’s title, confirmed the eviction order, and granted the appellant’s wife two months to pay arrears.
Upon non-payment, Respondent 1 began Execution Proceedings No. 407 of 2004. Resistance by the appellant led to an order for police-assisted delivery on 18-7-2005. Settlement negotiations followed; Respondent 1 purportedly agreed to withdraw execution but did not. The appellant then filed OS No. 181 of 2005 seeking specific performance and an injunction to restrain eviction. The trial court granted an injunction, which the High Court set aside, holding that the appellant and his wife colluded to frustrate the decree. The present appeal challenges that High Court decision.
Legal Issues Presented
- Whether Rule 104 of Order 21 of the Code of Civil Procedure (CPC) makes an order passed under Rule 101 or Rule 103 subject to the outcome of a subsequently filed suit for specific performance when the execution proceedings had already commenced.
- Whether the High Court erred in relying on Order 21 Rule 2 CPC to reject the trial court’s injunction based on an alleged oral settlement.
- Whether the burden of proving the genuineness of the alleged agreement was wrongly shifted to Respondent 1 contrary to Section 103 of the Evidence Act, 1872.
Arguments of the Parties
Appellant's Arguments
- Rule 104 was introduced in the 1997 amendment alongside Rules 98–106 to empower executing courts to decide title disputes without separate suits; hence, any order in execution is subject to a pending suit concerning the same property.
- Although execution began on 3-11-2004, the executing court’s order under Rule 97/98 was passed on 19-12-2005, after the appellant filed OS No. 181 of 2005 (27-8-2005); therefore, Rule 104 mandates that the execution order await the suit’s outcome.
- The High Court wrongly invoked Order 21 Rule 2 CPC and erred in overturning the injunction granted by the trial court.
Respondent's Arguments
- Rule 104 is inapplicable because the execution proceedings commenced long before the appellant filed his suit; the rule only protects suits pending when execution proceedings begin.
- The appellant’s late-filed suit was a device to stall enforcement of a decree obtained in 1990, relying on an unregistered, allegedly fabricated document.
- With eviction at its final stage, allowing the injunction would defeat the purpose of the 1997 amendments intended to expedite execution.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court acknowledged that the interpretative question regarding Rule 104 merits consideration but found it inapplicable on the present facts. The language of Rule 104 unequivocally limits its protection to suits pending on the date of commencement of the relevant execution proceeding. Because the execution began on 3-11-2004 and the appellant’s suit was filed on 27-8-2005, the suit was not “pending” at the requisite time. Accordingly, the execution order need not await the suit’s outcome.
The Court also agreed with the High Court that:
- Order 21 Rule 2 CPC concerning adjustment of decrees did not support the appellant’s reliance on an alleged oral settlement.
- The trial court improperly shifted the burden of disproving the alleged agreement to Respondent 1, contrary to Section 103 of the Evidence Act.
Finding no legal error in the High Court’s approach, the Supreme Court refused to disturb its decision.
Holding and Implications
APPEAL DISMISSED with costs of Rs 10,000.
Immediate Effect: The High Court’s order setting aside the injunction stands; execution proceedings for eviction and delivery of possession may proceed. Broader Impact: The judgment reiterates the temporal limitation embedded in Rule 104 of Order 21 CPC, signifying that only suits pending at the commencement of execution can stay orders passed under Rules 101 or 103. No new precedent was expressly created, but the decision reinforces strict adherence to statutory wording to prevent dilatory tactics in execution.
Altamas Kabir, J.— Leave granted.
2. An interesting question regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to Rule 101 thereof has been raised by Mr M.K.S Menon, learned counsel for the appellant. In order to appreciate his submissions, it is necessary to briefly set out the facts of the case giving rise to such question.
3. The appellant, who was the original owner of the suit property along with the building erected thereupon, allegedly took a loan of Rs 50,000 from the husband of Respondent 1 and under the guise of security for the loan the appellant was made to execute a conveyance in respect of the suit property measuring 88 cents in favour of Respondent 1 on 1-10-1986. According to the appellant, on the same day his wife was also made to sign on a blank paper, which was later on converted into a rent deed. It also appears that on account of another loan taken by the appellant from Syndicate Bank, OS No. 176 of 1982 was instituted by the Bank against the appellant for recovery of the amounts due, before the Subordinate Court, Thalasherry, in which the suit property was attached.
4. In 1990, OS No. 239 of 1990, filed by Respondent 1 before the Subordinate Court, Thalasherry, for recovery of the suit property on the strength of the conveyance executed in her favour, was decreed. An appeal was preferred therefrom by the appellant before the High Court, being AS No. 609 of 1992, and during the pendency of the appeal, Respondent 1 filed RCP No. 292 of 1993 against the wife of the appellant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, on the ground of default in payment of rent for the suit building since August 1989. An additional ground was also taken by Respondent 1 claiming that the building was also required by her for her own use and occupation. The said rent control petition was dismissed by the Rent Control Court on the ground that the title in relation to the building was in dispute in OS No. 239 of 1990.
5. An appeal, being RCA No. 197 of 1994, filed by Respondent 1 before the Rent Control Appellate Authority from the order of the Rent Control Court, was allowed and eviction was ordered. The wife of the appellant thereupon filed a revision petition before the High Court, being CRP No. 2532 of 1996, which was dismissed on 2-4-2004, by a common judgment delivered in AS No. 609 of 1992 and CRP No. 2532 of 1996, whereby the title of the appellant in respect of the suit property was upheld and the order passed in RCA No. 197 of 1994 was confirmed. The appellant's wife was given two months' time to pay the arrears of rent, failing which the respondent was given leave to take steps for execution of the order.
6. Since the arrears were not paid within the stipulated time, Respondent 1 filed Execution Proceedings No. 407 of 2004 seeking the appellant's eviction and delivery of possession of the suit premises. The appellant's wife entered appearance before the executing court, which ordered delivery of possession of the suit premises to the respondent on 2-4-2005. Since such delivery was resisted by the appellant, the court ordered delivery to be effected with police help on 18-7-2005. Thereafter, attempts were made to settle the matter and the respondent also agreed to withdraw the execution proceedings unconditionally. According to the appellant, although the respondent had agreed to withdraw the execution proceedings, the same was never withdrawn, which compelled the appellant to file OS No. 181 of 2005 and also for an injunction to prevent the eviction of the appellant in Execution Proceedings No. 497 of 2004 in RCP No. 292 of 1993. Inasmuch as such prayer for injunction was allowed by the learned Subordinate Judge, the respondent challenged the same before the High Court.
7. On behalf of the respondent herein, who was the appellant before the High Court, it was contended that when her title to the scheduled property and the building had been upheld and the eviction had also been ordered, such execution of the decree legally obtained could not be stalled merely on the basis of a claim made by the husband of the judgment-debtor on the basis of an unregistered agreement alleged to have been executed by the respondent on a stamp paper purchased in her name.
8. The High Court observed that the trial court had simply proceeded on the basis that the agreement in question was genuine and had shifted the burden of proving the said agreement to be a manufactured document on the respondent. The High Court, therefore, took the view that in order to prevent the respondent from obtaining delivery of the possession of the suit premises in the execution proceedings, the appellant had colluded with his wife, the judgment-debtor, in instituting the suit for specific performance and to obtain an injunction therein to restrain the respondent from enjoying the benefits of the decree obtained by her. The High Court, therefore, came to the conclusion that the injunction granted by the trial court in favour of the appellant herein was highly irregular and deserved to be set aside. The injunction petition filed by the appellant in OS No. 181 of 2005, in the Court of the Subordinate Judge, Thalasherry, was therefore, dismissed.
9. It is in the aforesaid background that Mr Menon urged that the provisions of Rule 104 of Order 21 of the Code of Civil Procedure were required to be considered. Since we shall be considering the effect of the aforesaid Rule, the same is set out hereinbelow:
“104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit.—Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.”
Mr Menon submitted that the said provision was not there in the Code of Civil Procedure in its original form and was included by amendment with effect from 1-2-1997 together with Rules 98 to 103, 105 and 106 of Order 21. Mr Menon submitted that in order to curtail the delay in executing the decree for possession of immovable property, the amended Rules were brought on the statute book to enable the executing court itself to decide claims of title which might be raised in execution proceedings without filing of a separate suit for the said purpose.
10. Mr Menon submitted that the amended provisions of Order 21 of the Code provided for a scheme by which any obstruction to the execution of a decree giving rise to questions relating to right, title or interest in the suit property, arising between the parties to a proceeding, on an application under Rule 97 or Rule 99 or their representative and relevant to the adjudication of the application, is to be determined by the court dealing with the application and not by a separate suit. The said provision contained in Rule 101 has been referred to in Rule 104 which indicates that any order made under Rule 101 or Rule 103 would be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made.
11. According to Mr Menon, although the execution proceedings were commenced on 3-11-2004, and the suit for specific performance was filed by the appellant on 27-8-2005, the actual order was passed on the application under Rule 97 by the executing court on 19-12-2005, after the suit had been filed by the appellant. In other words, according to Mr Menon, the suit filed by the appellant was pending on the date when the order under Rule 97 and Rule 98 was made and would, therefore, be subject to the provisions of Rule 104 and would have to await the outcome of the suit for specific performance filed by the appellant. Mr Menon urged that the High Court had erred in relying on the provisions of Rule 2 of Order 21 of the Code in setting aside the order of injunction passed by the learned Subordinate Judge on the application for injunction filed by the appellant in OS No. 181 of 2005.
12. Appearing for the respondent, Mr Vishwanathan, on the other hand, submitted that the submission regarding the applicability of Rule 104 of Order 21 of the Code of Civil Procedure to the facts of this case was wholly misconceived since the execution proceedings had been commenced long before the appellant's suit for specific performance was filed. While the respondent's suit for recovery of possession was decreed in 1990, the execution proceedings for executing the decree was commenced on 3-11-2004, and the appellant filed his suit for specific performance about ten months later on 27-8-2005. Mr Vishwanathan submitted that since the eviction proceedings against the appellant's wife had reached its final stages, the appellant raised a new claim based on an unregistered document to stall the execution of the decree for possession made as far back as in 1990.
13. The submissions made on behalf of the appellant regarding the applicability of Rule 104 of Order 21 of the Code has substance and merits consideration in an appropriate case, but they do not justify interference with the order of the High Court in the facts of this case.
14. The suit filed by the appellant for specific performance of contract was considerably later in point of time than the commencement of the execution proceedings and, in any event, the language of Rule 104 is clear and unambiguous that any order made under Rule 101 or Rule 103 would be subject to the result of a suit pending on the date of commencement of the proceeding in which orders were made under Rule 101 or 103. Since the appellant's suit was filed long after the commencement of the execution proceedings, the provisions of Rule 104 of Order 21 of the Code will not apply to this case.
15. We cannot also find any fault with the views expressed by the High Court in relation to the provisions of Order 21 Rule 2 of the Code regarding adjustment of the decree in terms of an oral settlement alleged to have been arrived at between the parties on 21-2-2005. Furthermore, we also agree with the High Court that the burden of proving that the agreement relied upon by the appellants was manufactured had been wrongly shifted upon Respondent 1 in contravention of Section 103 of the Evidence Act, 1872. We, therefore, find no reason for disturbing the order of the High Court impugned in this appeal on any of the grounds urged on behalf of the appellant.
16. The appeal, therefore, fails and is dismissed, with cost assessed at Rs 10,000.
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