1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 438 OF 2010 1. Vithabai W/o Sayanna Battin, Age : 60 Years, Occu. : Business, R/o Gavalipura, Nanded. 2. Venkatrao S/o Sadashivrao Deshmukh, Age : 55 Years, Occu. : Business, R/o Govardhan Ghat Road, Nanded. 3. Vijaysingh S/o Chandelsingh Pardeshi, Age : 35 Years, Occu. : Business, R/o Govardhan Ghat Road, Nanded. .. Appellants VERSUS 1. Daljitsingh S/o Dilipsingh Ramgadiya, Age : 45 Years, Occu. : Business, R/o Dilipsingh Colony, Vazirabad, Nanded. 2. Nanded Waghala City Municipal Council, Through it's Commissioner, Nanded. .. Respondents Shri R. R. Mantri, Advocate for Appellants. Shri A. S. Bajaj, Advocate for the Respondent No. 1. Shri M. V. Deshpande, Advocate for the Respondent No. 2. 2 WITH SECOND APPEAL NO. 462 OF 2010 Abdul Sattar Abdul Hafiz, Age : 50 Years, Occu. : Editor, Daily Nagushe News Paper, R/o Govardhan Ghat Road, Nanded. .. Appellant VERSUS 1. Daljitsingh S/o Dilipsingh Ramgadiya, Age : 45 Years, Occu. : Business, R/o Dilipsingh Colony, Vazirabad, Nanded. 2. Nanded Waghala City Municipal Council, Through it's Commissioner, Nanded. .. Respondents Shri K. C. Sant, Advocate for the Appellant. Shri A. S. Bajaj, Advocate for the Respondent No. 1 in both. Shri M. V. Deshpande, Advocate for the Respondent No. 2. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2010. JUDGMENT : . The present respondent No. 1 had instituted R.C.S. No. 422/1988 for declaration of ownership, possession and mandetory 3 injunction in respect of land admeasuring 65 x 40 feet of survey No. 21/23 and as per the boundaries detailed in the plaint. The said suit was instituted by the present respondent No. 1 against the respondent No. 2/Municipal Council. The said suit came to be decreed and the defendant/Municipal Council was directed to demolish the construction carried out by it on the suit site. The Municipal Council preferred an appeal before the District Court, Nanded. The District Court Nanded dismissed the said appeal. Aggrieved thereby, the Municipal Council preferred second appeal before the High Court. The said second appeal bearing S. A. No. 416/1995 was also dismissed. 2. The respondent No. 1/decree holder thereafter instituted execution proceedings bearing Regular Darkhast No. 148/2008 against the present respondent No. 2/Judgment debtor. During the pendency of the said execution proceeding the present appellants/objection petitioners filed an objection petition purportedly U/O XXI Rule 97 of the Code of Civil Procedure. Inter alia contended that the execution petition is filed beyond the period of limitation, so also their possession is peaceful, continuous and hostile to the decree holder, since 30th September, 1989. As such, they have become owners by adverse 4 possession. It is their case that they have been lawfully inducted in possession of the suit premises on 30th September, 1989 by the present respondent No. 2/Judgment Debtor by executing lease deed. According to them, they are running the shops under the license granted by the Competent Authority in a peaceful manner. The said objection petition was resisted by the decree holder. The Jt. Civil Judge Junior Division, Nanded, vide its order dated 28th January, 2010 rejected the objection petition. The appellants aggrieved by the said judgment and order preferred Regular Civil Appeal No. 17/2010 before the District Court, Nanded. The Principal District Judge, Nanded vide its judgment and order dated 01st July, 2010 dismissed the appeal. Aggrieved by the said judgment, the objection petitioners have filed the present second appeal. 3. Shri R. R. Mantri, learned counsel for appellants in Second Appeal No. 438 of 2010 advanced the arguments on behalf of appellants. Shri Sant, learned counsel for the appellant in Second Appeal No. 462/2010 adopted the arguments of Shri Mantri. 4. Shri R. R. Mantri, learned counsel for appellants with all 5 his persuasive skill canvased following propositions : I. The decree holder himself is not sure about his property. Perusal of the suit shows that the plaintiff himself was not aware as to whether his property is situated in survey No. 21 or 23. The property is not identifiable. In such circumstances, execution could not have proceeded further. The same was not subject matter of the suit, as such cannot be executed. II. The execution proceedings filed by the decree holder is beyond the scope of the decree, though the decree holder had prayed for relief of possession, the Court has not granted the said relief and has only granted the relief of mandatory injunction directing the Judgement Debtor to demolish the said shops. As such, no warrant for possession can be issued. III. The Courts below have not taken into consideration the contentions raised by appellants nor have considered the application filed by appellants for measurement. IV. The lower Appellate Court has relied on Rule 102 of 6 Order XXI of the Code of Civil Procedure, which is deleted by the Bombay High Court Amendment on 01.10.1983 and as such reliance placed by the Principal District Judge, while rejecting the objection petition invoking Rule 102 of Order XXI is illegal. V. If the stand of the decree holder is accepted about the acquisition of the said property by the Municipal Council, then nothing remains for execution and the appellants were inducted in possession as a lessee of Municipal Council, then they would remain lessee of the Municipal Council. 5. Per contra Shri Bajaj, learned counsel for the respondent No. 1/decree holder contended : I. The appellants are transferee pendente-lite and as such they do not have any right or authority to file an objection petition U/O XXI Rule 97 of the Code of Civil Procedure. II. The Judgement Debtor had taken the stand in the suit that the suit property is not a part of Survey No. 21/23, but it is part of Survey No. 25. The said contention of the 7 Judgment Debtor was rejected upto the High Court. Now the objection petitioners being transferee pendente-lite cannot raise the same issue. III. The High Court have also considered that the suit was for possession and a decree for mandatory injunction was passed against the judgment debtor to demolish the construction made over the suit property which necessarily means that after demolition the possession would be of the decree holder. IV. The scope of objection petition being U/O XXI Rule 97 of the Code of the Civil Procedure is very limited. Even the objectors have admitted that they are transferee pendente- lite, then it is not necessary to determine a question raised by them, for the said purpose relied on the judgment of the Apex Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported in AIR 1998 Supreme Court 1754 (1). So also the decision of the learned Single Judge of this Court in a case of Jagdish Motilal Joshi Vs. Chandrapal Tulsiram Bhola and others reported in 2007 (Supp.) Bom. C. R. 198. 8 6. I have heard the learned counsels for respective parties at length and with their assistance has gone through the judgment of the Courts below. Before adverting to the arguments advanced by the learned counsels, it would be appropriate to reproduce the relevant provisions necessary for decision : Order XXI [98. Orders after adjudication.-- (1)............ (a).............. (b)............. (2)....................... High Court Amendment - [Bombay]. - Substitute the following sub-rule (2), for the existing sub-rule (2) of rule 98 in Order XXI:- "(2) Whether 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 transferee 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. The Court may 9 also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree." --(1-10-1983). Order XXI [100. Order to be passed upon application complaining of dispossession.-- Upon the 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.] High Court Amendment--[Bombay]-- Add the following proviso to rule 100:-- "Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above."-- (01-10-1983). 10 Order XXI [102. Rules not applicable to transferee 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.--In this rule, "transfer" includes a transfer by operation of law.] High Court Amendment--[Bombay]--Delete rule 102.--(01-10-1983). TRANSFER OF PROPERTY ACT 52. Transfer of property pending suit relating thereto.--- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. 11 Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 07. It would also be relevant to refer to some of the objections raised in the objection petition : 4) That, on the strength of lawful possession without any interruption over the suit site since long back the objection petitioners are certainly entitled for ownership as objection petitioners became adverse and hostiling title of the present respondent, completely as a lawful possessors after completion of statutory prescribed period enjoyed by the objection petitioners without any interruption over the premises as per the possession, therefore, from the date of possession which was inducted by then Municipal Council, this fact and nature of possession was within the knowledge of true owner i. e. present respondent, therefore objection of objection petitioners for declaration of ownership on the basis of adverse possession is deserved to be allowed with 12 costs. 5) That, right of then Municipal Council over the property is extinguished by operation of law by Judgment and decree passed in R.C.S. No. 422/1988 on dated 3-4-1989 and confirmed upto High court, Bench Aurangabad. The decree under execution is required to be executed within 12 years from date of decree, but execution filed beyond limitation as per the Limitation Act, therefore, decree is not executable. Therefore title of respondent is hostile by present objection petitioner as a right of ownership acquired on the strength of adverse possession after completion of prescribed statutory period as long standing continuous lawful possession which speaks from documentary evidence that too by public documents, therefore, the objection of the objection petitioner is required to be allowed with full costs. 6) That, the objection petitioners exercising right over the suit property exclusively as a owner openly and to the knowledge of present respondent, the objection petitioners has established the case of adverse possession against the respondent, on the basis of document and fact, therefore, possession of the objection petitioner is required to be protected by allowing present objection with full cost. 7) That, the objection petitioners since 30-9-89 actual physical possession totally peaceful, continuous and hostile to the true owner i. e. present respondent. The person Kashinathsingh s/o 13 Gangusingh Rawat then Estate Manager of N. M. C. Nanded deposed before the court in R.C.S. No. 422/1988 on behalf of then Municipal Council and same person executed the possession receipt on dated 30.9.1989 in favour of objection petitioner, as proceeding and decree within the knowledge, therefore considering the legal and factual aspects and issue involved as since 19 years are lapsed. The objection petitioner deposited the property tax as well as other allied taxes in the office of council, therefore, considering this factual aspect the objection of objection petitioners is required to be allowed with costs. 08. Going through the objection petition filed by the present appellants it is manifest that the appellants admitted that they have been inducted in possession pursuant to a lease deed executed by the judgment debtor/Municipal council in the year 1989. The suit was filed in the year 1988. In the objection petition the appellants did not raise the dispute regarding identity of the property. On the contrary going through the recitals of the objection petition the appellants have categorically pleaded that they have been inducted in the suit premises in the year 1989 and they have become the owners by adverse possession. Now, in such circumstances as the appellants are transferee pendente-lite, the objection of the appellants cannot be 14 considered. 09. It is only if the proceedings between the decree holder and the judgment debtor are collusive then in such circumstances only the transferee pendente-lite would get some right to agitate. In the present case, the suit was filed in the year 1988. The Municipal Council contested the suit by adducing evidence claimed their ownership, then even constructed the shops on the suit premises during the pendency of the suit. After the decree was passed against them, they preferred appeal. After the appeal was dismissed on merits, the Municipal Council preferred second appeal which was admitted by this Court and subsequently dismissed in the year 2008. Even the judgment delivered by this Court in the second appeal filed by the Municipal Council shows that the matter was contested on merits. Taking into account this aspect, it is clear that the litigation between the decree holder and the judgment debtor was not collusive in nature. On the contrary it was contested and both the parties had led their evidence. Even decree passed by the Trial Court was challenged in appeal and thereafter in second appeal before this Court. 15 10. Once it is found that the decree obtained by the decree holder against the judgment debtor was not collusive, then taking into account the provisions of Order XXI, the moot question is whether the objection petitioners would get any right to raise the objection U/O XXI Rule 97 being a transferee pendente-lite. 11. No doubt Mr. Mantri is correct in arguing that the lower appellate court could not have relied on Rule 102 of Order XXI, as the same has been deleted in the year 1983 by the Bombay High Court, but when the Bombay High Court by amendment deleted Rule 102 it had incorporated amendment in Rule 98 of Order XXI, so also by an amendment incorporated a proviso to Rule 100 of Order XXI. 12. Bare perusal of the Sub Rule 2 of Rule 98 as amended by the Bombay High Court and proviso to Rule 100 of Order XXI as added by the Bombay High Court, it is clear that if on determination it is found that the objection petitioner is transferee pendente-lite, then the objection petition needs to be rejected. The phrasology used in the said proviso of Order XXI Rule 100, so also of Sub Rule 2 of Rule 98 of Order XXI as amended by Bombay High Court is succinct and does not admit 16 on any other interpretation. If it is found that an application is made by the person to whom the judgment debtor has transferred the property after institution of the suit in which the decree was passed, the Court shall dismiss the application. 13. The objection petitioners/present appellants had raised an objection to the execution admitting that they have been put in possession pursuant to a lease in the year 1989 i. e. after institution of the suit. They nowhere raised the dispute regarding the identify of the property or that the shop in which they have been put in possession in the year 1989 by the Judgment debtor was not a part of the suit property which subsequently they tried to raise, on the contrary raised the plea of adverse possession. The dispute regarding the identity of the property was raised by the judgment debtor in the suit itself. After long draw enquiry it was held that the suit property is not a part of survey No. 25, the same has been properly described by the boundaries and the shops were constructed by the municipal council after demolishing the latrine is the suit property and the said shops were during the pendency of the suit leased out to the objection petitioners/presnet appellants. As such, now it would not be open for the objection petitioners to again raise the same 17 objection. A transferee pendente-lite is precluded from raising such objection by virtue of the operation of the provisions of Rule 98(2) of Bombay Amendment of Order XXI and proviso to Rule 100 of Order XXI. 14. The Apex Court in a case of Silverline Forum Pvt. Ltd. referred supra has observed in para 10 as under : 10. It is true that R. 99 of O. 21 is not available to any person untill he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all question "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in 18 Section 52 of the Transfer of Property Act. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts, First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e. g. if the obstructor admits that he is a transferee pendent lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the 19 decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. 15. Taking into account the factual matrix and the legal position, the appellants being the transferee pendente-lite, it will not be open for them to raise such an objection U/O XXI Rule 97 of the Code of Civil Procedure. Though, Rule 102 of Order XXI as relied by the lower Appellate Court would not apply, as same has been deleted by the amendment of the Bombay High Court, still as per the Sub Rule 2 of Rule 98 of Order XXI and proviso to Rule 100 of Order XXI, the appellants objection petition would not be tenable as they are transferee pendente- lite. 16. In the result the appeals stand dismissed. 17. At this stage Shri Mantri and Shri Sant, learned counsels for appellants request to continue the interim order passed by this Court for further period of eight weeks. Shri Bajaj, learned counsel for the respondent No. 1 objects to the said prayer on the 20 count that the appellants do not have any right to raise the objection. Taking into account the fact that the interim protection is granted to appellants since 09 th July, 2010 and even during the pendency of appeals before the lower Appellate Court the protection was granted to appellants. The interim order passed by this Court on 09 th July, 2010 is continued for further period of six weeks. [S. V. GANGAPURWALA, J.] bsb/Oct. 10