SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 1/20 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.190/2006 Prakash Solanki S/O Mistri Achla Ram versus 1. Tek Singh S/O late Sh. Deedar Singh 2. Mistri Achla Ram S/O Sh. Tikam Ji. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI REPORTABLE Mr.M.C. Bhoot, for the appellant Mr.S.D.Purohit, for the respondents. DATE OF JUDGMENT : 12th January, 2009. JUDGMENT 1. The present second appeal has been filed against the concurrent judgment of two Courts below. The first appellate court vide judgment dtd.5.5.2006 as well as the learned trial Court vide its judgment dtd.23.1.2006 rejected objections of the present appellant SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 2/20 Prakash Solanki S/O respondent No.2 Mistri Achla Ram against an eviction decree in respect of suit premises; a residential house situated at Thanvi building, Station Road, Jodhpur under Order 21 Rule 97 C.P.C. 2. The said appellant – objector Prakash Solanki contended before the Courts below as well as before this Court through his counsel Sh. M.C. Bhoot that he was not impleaded by the respondent No.1 Tek Singh who filed an eviction suit against the respondent No.2 Achla Ram, his father despite in know of the fact that he was in possession of the suit property; a residential house and therefore, he was not bound by the decree. He further submitted that in a suit filed by the present appellant seeking injunction against the respondent No.1 Tek Singh, namely, the suit No.103/2000 – Prakash Solanki V/s Tek Singh, on a compromise between the parties, the learned trial Court had decided on 23.5.2003 that the plaintiff Prakash Solanki would not be dispossessed from the suit premises without due process of law. According to the appellant, the respondent No.1 Tek Singh had purchased the said suit property from Mangi lal on 17.1.1998 and thereafter filed a suit No.130/2000 for eviction against the respondent SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 3/20 No.2 Achla Ram without impleading the present appellant Prakash Solanki therein and got the decree of eviction which became final after the first appeal filed by Achla Ram was dismissed by the appellate Court. Mr. Bhoot submitted that the partition suit was going on between Mangi Lal and Bhanwar Lal and therefore, during the pendency of the partition suit, the sale of said property by Mangi Lal to the present respondent No.1 Tek Singh was illegal and the present – appellant Prakash Solanki was paying rent to Sh. Bhanwar Lal since 1991, therefore, the decree passed against Achla Ram, his father was not binding upon him, since he was not impleaded as defendant in the eviction suit. Mr. Bhoot submitted that the Courts below have erred in holding that the decree against his father Achla Ram bound the present appellant Prakash Solanki also, whereas he was an stranger to the said decree and therefore, a substantial question of law arises in the present second appeal. He further submitted that the executing Court had wrongly held that the present appellant - objector Prakash Solanki could also file an application under order 21 Rule 97 C.P.C. in executing Court raising his objection, whereas such application under Order 21 Rule 97 C.P.C. can be filed only by the decree holder as per the provisions of Order 21 Rule 97 C.P.C. SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 4/20 and therefore, the very premise of the impugned judgments of the Courts below was not available. He has urged that the present appellant could not be bound by the decree against his father merely because he was the son of the judgment debtor Achla Ram and since he was claiming independent right in the said suit property as tenant of Bhanwar Lal, therefore, the objections filed by him have been wrongly rejected by the Courts below. 3. Mr. M.C. Bhoot relied upon the following judgments in support of his submissions : i) 1997(3) SCC 694 – Brahmdeo Chaudhary V/s Rishikesh Prasad Jaiswal and another ii) 1960 RLW 618 – Ibrahim V/s Phool Chand iii) 2004(4) WLC (Raj.) 85 – Balraj Singh and another V/s Ajit Singh. 4. On the side opposite, Mr. S.D. Purohit urged that no substantial question of law arises in the present second appeal and the appellant Prakash Solanki was bound by the decree passed against Achla Ram, SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 5/20 his father. He submitted that the objections filed by the present appellant before the learned executing Court below were rightly rejected as no tenancy between him and Mr. Bhanwar Lal was established and on the contrary since tenancy between the respondent No.1 Tek Singh and Achla Ram was established by landlord Tek Singh, the eviction decree was rightly passed in his favour and it became final. He urged that the objections of even an stranger can be decided within the scope of Order 21 Rule 97 C.P.C. under Order 101 C.P.C. which is adjudicated resulting in a decree and subject to appeal under Section 96 C.P.C. even though such applications are decided by summary proceedings on the basis of affidavits and no separate suit can be filed or lies at the instance of objectors after amendment in the CPC w.e.f. 1.2.1977 by Act No.104/1996. He also relied upon the following judgments in support of his submissions: i) Ram Chandra Verma V/s Jagan Singh Singhi – 1996 (1) Apex Court Journal 707. ii) Shreenath and another V/s Rajesh and ors. - 1998(1) Apex Court Journal 648 (SC) iii) Raman Lal V/s LRs. of Rukmani - 2004(1) RLW 440 SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 6/20 iv) 2005 AIR (SC) 1777 – Manicka Poosali V/s Anjalai Ammal and ors. v) 2007(2) CDR 1289 – Mukesh Chouhan V/s Ram Prasad and ors. vi) 2001( 3) CCC 432 (Kerala ) - Ittiyachan V/s Tomy vii) 2001(3) CC 651 (Raj.) - Sri Vaishnav Brahmin Trust V/s Ramesh Chandra and ors. 5. I have heard the learned counsel at length and given my thoughtful consideration to the rival submissions and judgments cited at the Bar and have perused the impugned judgments of the Courts below. 6. In the opinion of this Court, there is no substance in the appeal filed by the present appellant - objector and he has been rightly held bound by the decree of eviction passed against his father Achla Ram. The reasons for this are as follows. 7. The Courts below have allowed the full opportunity to the present appellant to raise his objections against the decree and have SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 7/20 dealt with the same. Initially such objections were filed by the present appellant before the learned executing Court on 18.7.2005 whereupon the learned executing Court passed an order in Execution Application No.14/2005 on 10.8.2005 directing the appellant – objector to file his objections by way of application under Order 21 Rule 97 C.P.C. Accordingly, the said appellant – Prakash Solanki filed his application under Order 21 Rule 97 C.P.C. in the same Court on 16.8.2005 to which reply was filed by the decree holder on 22.8.2005. In the said reply, the decree holder clearly stated that the present appellant – Prakash Solanki was in possession of suit property only through his father Achla Ram, judgment debtor and he had no independent right at all as tenant or otherwise in the said residential house. It was also said in the said reply that even if the present appellant is taken to be a stranger or third party, he did not have any right, interest or title over the said suit property and being bound by the decree was liable to be dispossessed from the said suit property. After hearing both the parties, the learned trial Court passed the judgment on 23.1.2006 rejecting the objections and the application of the appellant under Order 21 Rule 97 C.P.C. The appeal filed by the present appellant against the said order dtd.23.1.2006 was also SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 8/20 dismissed by the first appellate Court by the impugned judgment dtd.5.5.2006. Being aggrieved by that, the appellant has preferred the present second appeal. 8. In Brahmdeo Chaudhary V/s Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694, the Hon'ble Apex Court in para 8 of the judgment dealing with the Scope of Order 21 Rule 97, 98, 99 and 101 held as under: “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 SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 9/20 controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21 Rule 98. It is obvious that 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 in filing an SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 10/20 application under Order 21 Rule 99 C.P.C. claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) C.P.C. 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) 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. The Court further held in para 9 as under: “9........ 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 SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 11/20 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 SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 12/20 losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. .............. On the contrary the statutory scheme envisaged by Order 21, Rule 97 C.P.C. as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree holder as well as to the objectionists 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 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 grievances once and for all finally resolved in execution proceedings themselves.” 10. Similarly, the Hon'ble Apex court in the case of Shri Nath V/s Rajesh reported in 1998 (1) Apex Court Journal 648, held in para 9 SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 13/20 and 10 of the judgment that the words “any person” under Order 21 Rule 97 C.P.C. includes a stranger and the person who even claims to be not bound by the decree or claims right in the property of his own to make his objection before the executing Court under Order 21 Rule 97 C.P.C. as no separate suit is not permitted after amendment in law w.e.f. 1.2.1977. The Hon'ble Apex Court in para 9 and 10 held as under: “9. Under sub-clause 1 of Order 21, Rule 35, the Executing Court delivers actual physical possession of the disputed property to the decree holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 14/20 place, the substance of the decree in regard to the property. In other words, the decree- holder gets the symbolic possession. Order 21, Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person”. This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (As amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the Court and not by a separate SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 15/20 suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by a stranger is adjudicated and finality given even in the executing proceedings. We find the expression “any person” under sub-clause (1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21, Rule 97. Thus, by the use of the words “any person” it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including stranger. 10. So, under Order 21, Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both the decree holder and other person claiming title on their own right to get it SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 16/20 adjudicated in the very execution proceedings. We find that Order 21 Rule 35 deals with cases of delivery of possession of an immovable property to the decree- holder by delivery of actual possession and by removing any person in possession who is bound by a decree, while under Order 21 Rule 36 only symbolic possession is given where tenant is in actual possession. Order 21, Rule 97, as aforesaid conceives of cases where delivery of possession to decree-holder or purchaser is resisted by any person. “Any person”, as aforesaid, is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including stranger. 11. In Ram Chandra Verma V/s Jagat Singh Singhi reported in 1996 (1) Apex Court Journal 707, the Hon'ble Supreme Court held that the appellant having been found in possession was entitled to obstruct execution defending his illegal dispossession in execution proceedings and he is also independently entitled to file an application under Order 21 Rule 97 C.P.C. claiming his possession. SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 17/20 12. The coordinate Bench of this Court in the case of Raman Lal V/s LRs. of Rukmani reported in 2004(1) RLW 440 held in a case involving similar facts where father resisted delivery of possession on the ground that he is the owner of the property and is in possession of the shop and was, therefore, not bound by the decree passed against a third party his son; that the decree holder is entitled to possession not only from the tenant but from the objector. 13. Thus, this Court is of the clear opinion that the object of Order 21 Rule 97 to 103 C.P.C. is to provide mechanism to decide the dispute as to right, title or interest in the suit property in execution proceedings itself and to bar separate suit, even if such objections are raised by a stranger to a decree. The contention of the learned counsel for the appellant that unless the decree holder could establish in terms of Order 21 Rule 98 (2) C.P.C. that resistance or obstruction was occasioned without any just cause by the judgment debtor or 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 proceedings, the learned Court below could not SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 18/20 dispossess the present appellant is of no avail because the Courts below have clearly discussed and held that the present appellant was in possession of the suit property ever since his childhood and his father Achla Ram was original tenant against whom the eviction decree had become final. The independent right of the appellant claiming to be tenant of Bhanwar Lal was not accepted by the Courts below. On the contrary, the tenancy between the landlord Tek Singh who had purchased property from Mangi Lal was found to be established and therefore, the present appellant was also held bound by the decree. This Court finds nothing wrong in these findings. It is well settled that the question of title is not relevant in the eviction matter and therefore, the relationship of landlord and tenant between the decree holder Tek Singh and judgment debtor Achla Ram was not upset by the claim of the present appellant who claimed to be a stranger and in possession of the suit premises in his own right as tenant of Bhanwar Lal who was engaged in partition suit with Mangi Lal. This Court is also of the opinion that such device as one put up by appellant cannot be allowed to thwart and nullify the decree of eviction by the appellant who claims to be a stranger in a decree passed against his father. The very fact that he was in possession of SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 19/20 the suit property ever since his child-hood and undisputed fact that he was son of the judgment debtor Achla Ram is enough to hold him as bound by the decree. 14. The Courts cannot shut its eyes to the stark realities of the life and cannot allow such technical and strange arguments to frustrate the decrees of the Courts in execution proceedings. The Courts below rightly rejected the claim of the appellant to be tenant of Bhanwar Lal independently and rejecting his objection of his being bound by the decree, as he was raising the objection or resistance on behalf of the judgment debtor only under Order 98 Sub-rule (2) C.P.C. Therefore, in the opinion of this Court, the Courts below have not erred in rejecting the objections of the present appellant as well as his application under Order 21 Rule 97 C.P.C. Mere filing of application under Order 21 Rule 97 C.P.C. by the objector as against by the decree holder does not dither away the decision on the objections of the appellant by the Courts below. These decisions were also the due process of law against the appellant in view of decree in injunction suit No.103/2000 decided on 23.5.2003. SBC SECOND APPEAL NO.190/2006 –PRAKASH SOLANKI . V/S TEK SINGH AND ANR. . : JUDGMENT DTD. 12.1.2009 20/20 15. In view of what has been stated above, this Court does not consider it necessary to decide the amendment applications filed by the appellant under Order 6 Rule 17 C.P.C. seeking amendment in the memo of appeal in view of the subsequent developments, about partition of property between Mangi Lal and Bhanwar Lal as this Court has upheld the judgments of Courts below to the effect that the appellant was bound by the decree against his father Achla Ram. 16. In the opinion of this Court, no substantial question of law arises in the present second appeal. Consequently this appeal is found to be devoid of