IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 226 of 2010 Date of decision: 07.09.2010 Vinod Bala & another …Petitioners. Versus Yog Raj & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate. For the respondents: Mr. M.S. Thakur, Advocate. Deepak Gupta, J. (Oral) 1. The short question which arises for consideration in this petition under Article 227 of the Constitution of India is whether an appeal is maintainable before the learned Appellate Authority constituted under the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’) against an order passed by the Rent Controller on an application filed under Order 21 Rules 97, 98, 99 and 101 of the Code of Civil Procedure Code (CPC). 2. Prior to issuance of the notification dated 10th October, 2006 issued by the State of H.P. under the Act, the law was well settled that an appeal lies against such an order, since the reasoning was that any order dismissing the objections under 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Order 21 Rules 97, 98, 99 and 101 amounts to a decree and, therefore, an appeal is maintainable. In this regard, reference to the judgment of this Court in Harjinder Kaur versus K.R. Aggarwal and another, 2000 (2) Shimla Law Cases 185, may be made, wherein after discussion of the entire law, the Court held as follows: “In the light of the above settled law, the impugned order dated 23.12.1999 dismissing the objections of the petitioners under Order 21, Rule 97, Code of Civil Procedure being the one passed under Rule 98 or Rule 100 would be a decree within the meaning of Rule 103 and as such the same is not revisable. Only an appeal would lie against it.” The said decision was followed by another learned Single Judge of this Court in RSA No. 52 of 2006, titled Tilak Raj versus Tulsi Ram and others, Latest HLJ 2006 (1) 662, decided on April 26, 2006. Even I took the same view in Civil Revision No. 2 of 2006, titled Raja Virbhadra Singh versus M/s Salig Ram Nand Kishore. 3. The learned lower Appellate Court has held that the situation has undergone a change due to the notification dated 10th October, 2006, issued by the State of Himachal Pradesh, which reads as follows: “No. LSG-A(3)-1/71-II dated 10th October, 2006- In supersession of this Department notification of even number dated 26.05.1988 published in Rajpatra, Himachal Pradesh (extra ordinary) dated 7th June, 1988 and in exercise of the 3 Himachal Pradesh Rent Control Act, 1987 (Act No. 25 of 1987) the Governor Himachal Pradesh is pleased to confer the powers of appellate authorities on all the District and Sessions Judges / Additional District and Sessions Judges in respect of the urban area in their respective jurisdictions to hear appeal against the orders made by the Rent Controllers under section 4, 5, 11, 12, 13, 14 {except 14 (3) (a) (iii)} and 21 of the said Act.” 4. The learned lower Appellate Court has come to a conclusion that only those orders, which are passed under the sections mentioned in the notification, would be appealable and none other. The learned lower Appellate Court has not taken into consideration the provisions of Section 26 of the Act, which reads as follows: “26. Execution of orders. Save as otherwise provided in section 31, any order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.” A bare reading of this provision makes it more than apparent that any order made by the Controller under the Act is executed by him as a decree of a Civil Court and the Controller has been vested with the powers of the Civil Court to enable him to execute such orders. 4 5. It is not disputed that the provisions of Order 21 CPC are attracted while executing an order under Section 26 of the Act. Therefore, the objections in terms of Order 21 Rules 97, 98, 99 and 101 can be filed even before the Rent Controller. These objections have to be decided as per procedure laid down in the Code of Civil Procedure and are governed by the law relating to execution proceedings. 6. In Brahmdeo Chaudhary versus Rishikesh Prasad Jaiswal and another, (1997) 3 SCC 694, the Hon’ble Apex Court has held as follows: “8. A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture: “(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree- holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment- debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. (2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie infilling an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application 5 is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101. 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 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 visualize 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 6 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 he is vigilance 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 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 7 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, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievance once and for all finally resolved in execution proceedings themselves.” 7. The Apex Court has clearly laid down that whether procedure under Order 21 Rule 97 is followed to remove an obstruction by some person or the question of title is raised under Order 21, Rules 97, 98, 99 and 101, the executing court virtually acts as a civil court and the order passed by it amounts to a decree and hence an appeal is maintainable. 8. It is a settled law that in terms of Order 21 Rule 103, an order of adjudication passed under Rule 98 or Rule 100 of the CPC, amounts to a decree and an appeal against such an order is maintainable under Order 21 Rule 103 CPC. Therefore, the objector had a right under Order 21 Rule 103 CPC to file an appeal. This right of appeal, which vested in the petitioner, has not been taken away by the notification dated 10th October, 2006. Merely because the appeal was filed under Section 24 and not under 8 Order 21 Rule 103 CPC would not divest the court vested with the jurisdiction to decide such an appeal. A party which is aggrieved by an order passed under Order 21 Rule 97s to 103 CPC has a right under the Code of Civil Procedure to file an appeal before the Appellate Authority. This right of appeal could not and has not been taken away by the notification dated 10th October, 2006. Only the forum of appeal has changed. An appeal under the Rent Control Act will lie to the Appellate Authority alone and a harmonious construction has to be given to the various provisions. If we read Sections 24 and 26 of the Act and Order 21 Rules 97 to 103 of the Code of Civil Procedure together, it is obvious that the only proper construction which can be given to the notification is that the Appellate Authority under the H.P. Urban Rent Control Act would have the jurisdiction to hear an appeal filed under Order 21 Rule 103 CPC against an order passed by The Rent Controller under Section 26 of the Act on the objections filed under Order 21 Rules 97, 98, 99 and 101 CPC. 9. In view of the above discussion, the present petition is allowed and it is held that the learned District Judge has jurisdiction to decide the appeal filed by the present petitioners. Since the appeal was filed in the year 2009 and arises out of eviction proceedings which started in the year 1987, the learned District Judge is directed to dispose of the appeal as early as possible and in any event not later than 30th November, 2010. Parties through their counsel are directed to appear before the learned District Judge on 28th September, 2010. The 9 Registry is directed to ensure that the record of the case is sent to the learned District Judge well before the said date. Till 28th September, 2010, the petitioners shall not be evicted pursuant to the order of eviction passed against them and they may obtain necessary stay orders from the Appellate Authority thereafter. (Deepak Gupta) Judge September 7, 2010 (rajni)