IN THE HIGH COURT OF BOMBAY AT GOA **** CIVIL REVISION APPLICATION NO. 73 OF 2001 1. Smt. Sushila Sadanand Borkar, major in age, d/o Sadanand ladu Borkar, 2. Smt. Nila Sadanand Borkar, major in age, d/o S. Borkar, 3. Kum. Shobha Sadanand Borkar, major, d/o late Sadanand L. Borkar, 4. Shri Devidas Sadanand Borkar, major in age, s/o late Sadanand Ladu Borkar, all r/o House No.335, Shrama Safalya, Fatorda, Margao, Salcete, Goa. ... Petitioners. Versus 1. Smt. Maria Exaltacao Vaz alias Elasso Vaz, aged 70 years, married, housewife and her husband and 2. Shri Rosario Oliveira, aged 75 years, s/o late Constantino Oliveira, both r/o House No.29, Ilha de Rachol, Salcete, Goa. ... Respondents. Smt. A. A. Agni, with Shri N. Costa Frias, advocates for the petitioners. Shri Y. V. Nadkanri with Shri J. A. Cardozo, advocates for the respondents. CORAM: S. RADHAKRISHNAN, J. DATE: 13th September, 2002. ORAL JUDGMENT By this Civil Revision Application the petitioners, who are the original defendants have - 2 - challenged the Order dated 11th January, 2001, passed by the IInd Additional Civil Judge, Senior Division, Margao, in an application filed by the petitioners herein, under Order 7 Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the plaint. The learned Judge by the aforesaid Order dated 11th January, 2001 had declined to grant the said application and dismissed the same. Aggrieved thereby, the original defendants, namely the petitioners herein, have filed this Civil Revision Application. 2. This Civil Revision Application was admitted by this Court on 20th April, 2001 and the impugned Order was also stayed. 3. The above matter has a chequered history of over 32 years. On 20th November, 1970, an agreement for managing a bar-cum-restaurant, known as "Ratnadeep Lunch Home" was entered into between one Sadanand Ladu Borkar and Luis Vaz. the said Sadanand was a lessee of the premises wherein the said bar-cum-restaurant, was situated and the landlord was one Antonio Pereira. In the year 1975, the said Sadanand Borkar filed an eviction suit against Luis Vaz, contending that Luis Vaz was only allowed to manage the said establishment, namely the said bar-cum-restaurant Ratnadeep Lunch Home, on the ground that the said Luis Vaz had failed to pay compensation and - 3 - was also indulging in illegal activities like matka, etc. and also that the period of agreement had already expired. The above suit came to be disposed of by the Civil Court on 22nd December, 1978, holding that the Civil Court had no jurisdiction inasmuch as the matter involved was between a landlord and tenant and was governed by the provisions of the Rent Control Act. In view of the above finding given by the Civil Court, especially because the stand of the defendants in the said suit was that the said Luis Vaz was a tenant of Sadanand Borkar and as such the regular Civil Court had no jurisdiction to entertain the suit, the said suit was dismissed. 4. In view of the findings in the above civil suit, the said Sadanand Borkar filed a rent case before the Rent Controller in the year 1979. Before the Rent Controller, the said Luis Vaz took a stand that the relationship between him and Sadanand Borkar was not that of landlord and tenant and there was only an agreement to manage the said restaurant. The above contention of Luis Vaz was accepted by the Rent Controller and the Rent Case was dismissed on 13th October, 1980. Aggrieved thereupon, an appeal was preferred by Sadanand Borkar, which Appeal also came to be dismissed on 15th January, 1982. - 4 - 5. In view of the above, Sadanand Borkar had to again file an eviction suit by way of Civil Suit on 25th November, 1982, contending that the relationship between Sadanand Borkar and Luis Vaz, was not that of landlord and tenant, but was only that of lessor and lessee. However, on 21st October, 1983, the said suit filed by Sandanand Borkar came to be dismissed by the Civil Court on the ground that the earlier finding recorded in the earlier suit operated as res judicata. In the meanwhile Luis Vaz died and his wife Ana Severina Monteiro e Vaz was brought on record. Subsequent thereto, a regular appeal was filed by Sadanand Borkar against the dismissal of the suit. Even the said appeal came to be dismissed by the lower Appellate Court on 11th June, 1987. Aggrieved thereby, the said Sadanand Borkar filed a Second Appeal before this Court. In the said Second Appeal on 19th April, 1990, certain consent terms were arrived at between Ana Severina and the legal representatives of Sadanand Borkar, as Sadanand Borkar had expired during the interregnum. The said consent terms were duly signed by Ana Severina and the legal representatives of Sadanand Borkar. Ultimately, on 24th April, 1990, this Court passed a consent decree in the light of the consent terms. Inspite of the said consent decree Ana failed to deliver possession of the said Hotel Ratnadeep Lunch Home. - 5 - 6. In the meanwhile, one Ubaldino had filed a civil suit in the year 1990 contending that he is the legal heir of Luis Vaz and also sub-tenant of Ana and had prayed that the consent decree should be treated as null and void. The said Ubaldino was able to obtain an ex parte injunction on 22nd August, 1990, whereby the petitioners herein were restrained from proceeding with the execution of the decree. Finally, the said ex parte injunction was vacated by the Civil Judge, Senior Division, Margao, by his Order dated 2nd July, 1993. The said Ubaldino filed an appeal against the said dismissal. Thereafter the said Ubaldino had filed an application in the execution proceedings which was dismissed by the Civil Judge, Senior Division, and later confirmed by the Additional District Judge, Margao. However, this Court in its revisional jurisdiction held that the application was maintainable. Finally, this application under Order 21 Rule 97 of the Code of Civil Procedure was adjudicated by recording evidence and by an Order dated 28th January, 1999, the same was dismissed. thereafter a regular appeal was filed against the said Order before the learned Additional District Judge, Margao, which appeal also came to be dismissed on 11th January, 2000. The matter was carried further to this Court by way of Second Appeal, which came to be dismissed on 15th March, 2000. 7. After all the aforesaid proceedings, in - 6 - the month of April, 2000, one Smt. Maria Exaltacao Vaz alias Elassao Vaz and her husband have filed a suit before the Civil Judge, Senior Division. In the said suit the petitioners herein, who were the defendants in the said suit, had taken out an application on 7th June, 2000, contending that the plaint ought to be rejected, inasmuch as the respondents herein could not file a separate suit and could only file an application under Order 21 Rule 97 of the Code of Civil Procedure and such a separate suit to establish their right, title, interest, etc. in the said restaurant Ratnadeep Lunch Home was not maintainable at all. The learned counsel for the petitioners states that on 30th June, 2000 in execution of the aforesaid decree, the petitioners herein were able to take possession of the said bar-cum-restaurant Ratnadeep Lunch Home, from one Ramdas Brokar, who was present at the suit premises at that time. It is also the case of the petitioners that thereafter on 1st July, 2000, the petitioners found that the locks placed by them on the suit premises were broken and one Cajetan Oliveira and two others were present in the suit premises and also that the petitioners were threatened with dire consequences. In view thereof it appears that on 10th August, 2000, the petitioners herein have filed Regular Civil Suit for a mandatory injunction against respondents no.1 and 2, for removal of the locks and for possession. In the said suit on 26th September, - 7 - 2000, a mandatory injunction was granted. Aggrieved thereby, an appeal has been preferred by the respondents, which has been admitted and stay has been granted. Thereafter the impugned Order dated 11th January, 2001, came to be passed by the learned IInd Additional Civil Judge, Senior Division, Margao, rejecting the application of the petitioners seeking the relief of rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure. 8. The learned counsel appearing for the petitioners, Mrs. Agni, brought to my notice that as per the scheme of Order 21 Rules 97 to 103 of the Code of Civil Procedure, no separate suit is permissible and all disputes pertaining to execution of a decree ought to be resolved by way of an application either under Order 21 Rule 97 or under Order 21 Rule 99 of the Code of Civil Procedure. In this context, it would be relevant to note the provisions of Order 21 Rules 97 to 103 of the Code of Civil Procedure, which read as under;- "Order 21: R.97. R.97. R.97. Resistance Resistance Resistance or obstruction of or obstruction of or obstruction of possession possession possession of immovable of immovable of immovable property.- property.- property.- (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 - 8 - property, he may make an application to the Court complaining of such resistance or obstruction. (2) where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. 98. 98. Orders Orders Orders after adjudication.- after adjudication.- after adjudication.- (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, 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 or on his behalf, or by any tansferee, where such transfer was made during the pendency of the suit or execution proceeding, 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 or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 99. 99. 99. Dispossession Dispossession Dispossession by decree-holder or by decree-holder or by decree-holder or purchaser. purchaser. purchaser. - 9 - (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. 100. 100. Order Order Order to be passed upon to be passed upon to be passed upon application application application complaining of complaining of complaining of dispossession. dispossession. dispossession. - - - Upon determination of the questions referred to in rule 101, the Court shall in accordance with such determination, - (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined - All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. - 10 - 102. 102. 102. Rules Rules Rules not applicable to not applicable to not applicable to transferee transferee transferee pendente lite pendente lite pendente lite.- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation Explanation Explanation - In this rule, ‘transfer’ includes a transfer by operation of law. 103. 103. 103. Orders Orders Orders to be treated as decrees.- to be treated as decrees.- to be treated as decrees.- Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." 9. Smt. Agni, learned counsel for the petitioners contends that the learned IInd Additional Civil Judge, Senior Division, Margao, had committed serious error of law by entertaining the above suit filed by the respondents herein and also by not allowing the application for rejection of the plaint filed by the petitioners herein. Smt. Agni contends that when there is an execution proceeding, and if a third party wants to claim an independent right, title, etc. the only remedy available to such a third party is to adopt proceedings either under Order 21 Rule 97 of the Code of Civil Procedure, if not dispossessed already, or if dispossessed then under Order 21 Rule 99 of the Code of Civil Procedure but cannot at all, resort to a separate - 11 - suit. Therefore, the contention of the learned counsel is that such a third party could only take recourse in the said execution proceedings by way of an application and cannot file a separate suit. The learned counsel also pointed out that in the said application the third party is entitled to set up the entire case leading evidence and the same will be determined as if it were to be a suit but no separate suit would be permissible. Smt. Agni contends that the provisions in Order 21 Rules 97 to 103 are a Code by themselves and are comprehensive to deal with all the issues and the Legislature has specifically provided and barred any separate suits and, as such, the learned Civil Judge ought not to have entertained the said suit and ought to have rejected the said plaint. 10. In that behalf, Smt. Agni, learned counsel brought to my notice a judgment of the Supreme Court in Shreenath & Anr. Shreenath & Anr. Shreenath & Anr. vs. Rajesh & Ors. Rajesh & Ors. Rajesh & Ors., (1998) 4 SCC 543, especially paragraph 13 of the said judgment, the Hon’ble Supreme Court has held that any third party claiming to have an independent right can set up that right and agitate under Order 21 Rule 97 of the Code of Civil Procedure and he need not wait till he is dispossessed and therefore can file an application under Order 21 Rule 97 of the Code of Civil Procedure. In paragraph 13 of the aforesaid judgment, the Supreme Court - 12 - has clearly held that after the amendment of the Code of Civil Procedure, all disputes are to be settled by the executing court itself, finally under Rule 101. In paragraph 14 the Supreme Court has observed as under:- "14. We find that both either under the old law or the present law, the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself." In paragraph 15 the Supreme Court has made it very clear that one need not wait for his dispossession to enable him to participate in execution proceedings. A person can object and get an adjudication when he is sought to be dispossessed by the decree-holder. 11. The learned counsel for the petitioners thereafter referred to another judgment of the Supreme Court in Noorduddin Noorduddin Noorduddin vs. Dr. K. L. Anand Dr. K. L. Anand Dr. K. L. Anand, (1995)1 SCC 242, wherein in paragraph 8 the Court has observed as under:- "8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive - 13 - between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution." 12. Smt. Agni also referred to another judgment of the Supreme Court in Brahmdeo Chaudhary Brahmdeo Chaudhary Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr. Rishikesh Prasad Jaiswal & Anr. Rishikesh Prasad Jaiswal & Anr., (1997)3 SCC 694, wherein the Court has exhaustively analysed the scope of Order 21 Rules 97 to 103 of the Code of Civil Procedure, and the relevant paragraph in that behalf would be paragraph 9, which reads as under:- "9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of - 14 - police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if - 15 - he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rule 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all - 16 - finally resolved in execution proceedings themselves." From the above dictum laid down by the Supreme Court, Smt. Agni contends that the statutory remedy for the decree-holder as well as the obstructionist will be to get a proper adjudication before the executing court and such an