'^ IN THE HIGH COURT OF CHHATTISGARH A-l o^ASPUR C.^2J CIVIL REVISION No. /2010 F'etitioner ^Mohd. Toshib, aged about 47 years, S/o Judgement debtor Late Mohd. Siddique, By Caste \Musalman,R/o Bus Stand, Distt Korba ^^0^?^^' ....•^•^ Versus ^espondents ^K Smt. Subhadra Sao, aged about 54 years, Decree Holder W/o Late Teemanlal, 2. Smt. Reena Sahu, aged about 27 years, D/o Late Teemanlal, Ku. Leena Sao, aged about 24 years, D/o Teemanlal Virendra aged about 19 years, S/o Late Teemanlal All R/o Purani Basti, Korba C.G. CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE R^PONDENTS CivU Revision No. 4/2010 Mohd. Toshlb Versus ;. Subhadra Sao aad ofhers CmlRevision No. 6/2010 Moveez Ahmed Smt. Subhadra Sao and others CivU Revision No. 22/2010 APPLICANT MushirAIuned Smt. Subhadra Sao and others SB:- Hon. Shri N.K. Aganval, J :-SIui Paras Kotecha, Advocate, for ftie appjicants. ORAL ORDER (10-3-2010) Per N.K. AgarBBal. J 1. Heard on admission. 2. CivU Revision No. 4/2010, Ciml Revision 6/2010 and CivU . Revision 22/2010 are being disposed of by this coiamon order. 3. CivU Revision no. 4/2010, Civil Revlsion 6/2010 and CivU Revision No. 22/2010 have been preferred against the order dax.ed 16-12-2009 passed by learaed Ist CivU Judge Class I, Korba m Execution Case no. 134/99, Execution Case No. 7- A/94 and Execution Case No. 138/97 respectively. 4. Pacts ofthe case in brief are as uader:- 5. Ttie non-applicants / decrce-holders mstituted a suit for eviction against the applicaat under C.G. Accominodation Control Act on the ground of bona fide need and denial of tenancy. The tenant/appllcant in his reply pteaded that he 1s not a tenant of fhe siut house, rather he is occupying the premises in his own right. It was further pleaded that the non-applicants have coUected rent of the suit house from htm Ulegally by keeping the applicant in dark. It was further pleaded that the suit house has been constructed on govemment land Khasra No. 996/1 aad 996/2 aad not in Khasra No. 997/2 as pleaded by the plamtifi". 6. The trial Coixrt on appreciation of the evidence led, material placed and submissions made held that the applicant is occupying the suit house as tenant of non-applicants on a monthty rent of Rs. 200/-; the applicant has not paid rent since August, 1990; the non-applicants have failed to prove their bona Hde need; the defendant has failed to prove fhat the suit house has been constructed by fhem aad they are in its possession since 20 years in their own right; he has also failed to prove fhat fhe applicaat has becoine owner of the suit house as fhe suit house has been constructed over the iovemment Abadi land, however the leamed Trial Coiirt has passed decree iiader Section 12(l)(c)of the Accommodation Conta-ol Act on account of denial of ownership by ftie applicant. There-against the applicant has preferred fhe first appeal. The Pirst Appellate Court vide judgment and decree dated 8th August, 2006 (Annexure P-1) has disinissed fhe appeal afiBrming the flading recorded by the trial Coiirt. There-against the second appeal preferred by the applicaat has been wlfhdrawn. 7. In fhe execution case preferred by the non-appUcants/deCTee holder, the applicant/judgment-debtor has preferred objection under Section 47 of the C.P.C. Leamed Executing Court vide tmpugned order dated 16-12-2009 disiaissed the applicant's appUcation holding it'as not niaintainable in fhe facts.end drcumstances ofthe ease. 8. Shri Parag Kotectia, leamed counsel for the applicant would subinit fhat there is a dispute between fhe partles with regard to ownership of the suit property whether fhe siiit property is situated on land Khasra no. 997/2 or on land Khasra No. 996/1 and 996/2 which is a govemment land for which the goveinment has graated patta ui appUcant's favour. Therefore, the question raised by the appllcaat/judgment debtor is squarety covered under Section 47 offhe C.P.C. As per fhe applicant, leamed Executing Court has erred in dismissing fhe applicant's application. He placed reliance upon the judgment of Supreme Court in N.S.S. Nwayema. Stinna and others -v- M/s Goldstone Exports (P) ttd. and others1 and in case of Bhamxn. Vc^a. eind others -v- Soleiftki Hcmvfi SSSwdafl Manscmg and anothet6 and the judgpient of Kerla High Court in case of Kunju Kur^u Chandran-^- RaglwcwP. 9. I have heard leamed counsel for the applicant and perused the order unpugned aad documents annexed therewifh. 10. A bare perusat of the application preferred by the applicant under Section 47 of fhe C.P.C. (Annexure P-3) would reveal that the applicant has raised tfae same grounds in the application which he has aJready raised in fhe written statement and the same has been decided by the trial Court and affirmed by the Flrst AppeUate Court. 11. ta order to appreciate fhe contention ralsed by Shri Kotecha, it would be appropriate to quote Section 47 of C.P.C. which reads as under- "47. Questions to be determined by the Court exccuting decree.—(1) AU questlons arisiag between the parties to fhe suit m which the decree was passed, or fheir representatives, and relating to fhe execution, discharge or satisfaction of tfae decree, shall be determined by the Goiirt executing the deccee and not by a separate suit 'AIR 2002 SC 251 2AIR1972SC1371 32006(l)CrVILLJ339 (2)r**i (3) Where a question arises as to whefher any person is or is not fhe representative of a party, such question shall, for fhe purposes of ttus section, be determined by the CourL [Explanation I.— For fhe purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has beea dismissed are parties to fhe suit Explanation S.— (a) For fhe piirposes of fhis section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to fhe suit in which fhe decree is passed; aad (&) all questions relating to the deUveiy of possession of such property to such purchaser or his representative shall be deeiaed to be questions relating to the execution, discharge or satisfaction ofthe decree wifhia the meaning ofthis section.]" 12. Section 47 of C.P.C. permits fhe parties to the suit to raise questions relating to execution, dischai^e or satisfaction of fhe decree. In fhe instant matter, it is not tn dispute that (he suit property is one and fhe same ui whlch the applicant was/is ruitning his business and for which, leamed trial Court as weU as the appeUate Court has held that the applicant is occupying the same as tenant of fhe non-applicants/decree-holders. It is also not ia dispute that the points which are being ralsed by the applicant have already been raised by him in fhe suit and the Court has already held that the appUcant has faUed to prove fhe stand itaken by him regardin'g construcdon of the suit house over govemment land or regardir^ his ownership over the siut property. The appUcaat has lost the Us up to first appeal and has wifhdrawn the second appeal in his own wisdom. It is also trite law that in an eviction suit, the question of tiUe is incidental and not germane if fhe applicaat wants to claim the title over the suit house, then he should have filed a separate suit claiming hls ownership over fhe suit land or suit house. The same question cannol be raised by the appllcant again and again ui an application under Section 47 oftheC.P.C. rs - 13. The Supreme Court in case of JBhflocui Vcrfa <uut others3 has held fhat alfhou^i an executmg court cannot go behiad the decree imder execution. But that does not mean that it has no duty to find out the true effect of fhat decree. ,For construing a decree it can and in appropnate case, it ou^it to take mto consideration the pleadings as weU as the proceedtr^s leading upto the decree. In order to find out the meaamg of the words employed In a decree the Court, often has to ascertala fhe circumstances under which fhose words came to be used. That is the plain duty of (he executfon court. 14. The Supreme Court in N.S.S. Narciyeina1 observed in para 16 as under:- 16. Interpretmg the provisions ia these Rules, a three-Judge Bench of tius Court ia the case of Stlueriine Forwn (P) Ltd. v. Rajiv Trust (1998) 3 SCC 723 held:- a It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of iinmovable property by the decree-holder. Rute 101 stipulates that all questions 'arising between fhe parties to a proceeding on an appUcation under Rule 97 or Rule 99' shall be detennined by the executmg court, if such questions are 'relevant to the adjudication of the application'. A third party to fhe decree who offers resistance would thus faU wittun the ambit of Rule 101 if an adjudication is warranted as a consequence of fhe resistance or obstruction made by him to the execution of the decree. No doubt if fhe resistance was xnade by a transferee pendente Hte of the judgment-debtor, the scope of the adjudicaUon would be shrunk to fhe liinited question whether he is such a transferee and on a finding in fhe af&rmative regarding that point ftie execution court has to hold fhat he has no right to resist m view of fhe clear language contained in Rvde 102. Exclusion of such a transferee from raisir^ further contentions is based on fhe salutary principle adumbrated in Section 52 of fhe Transfer of Property Act When a decree-holder complains af resistance to the execution of a decree it is uicuinbeiit on fhe execution court to adjudlcate upon it. But whUe makmg adjudicatiQn, fhe court is obUged to determine only such question as may be arising betweai the parties to a proceeduig on sach complaint and that such questions must be relevant to the adjudication offhe complaint 1 Thc words 'aU quiestwns a.nswg betweefi the partfes to a proceedxng on an applicatwn under Rule 97' would envelop only such qu.estvans as would legaUy ansefor determm.ation between those parties. In other words, tiie court is not obliged to determine a question merety because the resfcter raised it. The questions which fhe executing court is obl^ed to determine under Rule 101, must possess two adjuncts. First is fhat such questions shoiild have legally arisen between the pardes, and fhe second is, such questions must be relevant for consideration aad determination between the parties, e.g., if the obstructor admits - that he is a transferee pendente lite it is not necessary to determme a question raised by him that he was tinaware of the Uti^tion when he purchased fhe property. Smularly, a third party, who questions fhe validity of a G^B7Btranrfer made by a decree-holder to an assignee, cannot claim that fhe question regarding its validily should be decided during execution proceedings. Hence, it is necessary fhat the questions raised by fhe resister or fhe obstructor must legalfy arise between him and the decree-holder. M the adiu.diexctsan vrocess enwscwed in Order 21 Rule 97(2) of the Code. the executian cawt can dedde •whetlwsr the auestion rvased bii a resister or obstructor teaaBu arises between the wxrties. An answer to the scdd ctuestion also wauld be the result of the cidMdicatian conterrwlatedm the sub-section. * (emphasis supplied) 15. The Supreme Court thus clarified the meaiiing ofthe words "all questlons arising between the parties to a proceedtngs on an application under Rule 97 of Order 21" and has held that it would mean to onty such questions as would legally arise for determination betsveen fhose parties. to other words, the Court is not obUged to detennine a question xnerely because of the resister raised it. The ' questions which the executmg Court is obliged to determiae iinder Order 21 must possess two adjuncts. First is fhat 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 fhe obstructer admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was imaware of the lit^ation whea he purchased the property. SimUarty, a third party, who questions the validity of a transfer made by a decree-holder to an ass^nee, cannot T" claim that the question r^ardmg ils validity should be decided during execution proceedings. 16. There is no quarrel with regard to aforesald proposition of law laid down by fhe Supreme Court in the above referred cases. However, fhe questions which the applicant is raising here, have already been raised by him dunr^; trial and have been settted by the Court and (hereafter it is not open for the applicaat to challenge the same as the said question cannot be said to be legally arisen between the parties for determination. Therefore, the judgments cited and relied upon by the leamed coiinsel for the parties are of no help to him tn fhe facts and circumstances of the case. Again fhe judgment of Kerala High Court relied on by the leamed connsel for Uie appMcant is of no help to him as here in fhe instant case, location of the siiit property i.e. tenanted premises is not in dispute. What dispute fhe applicant has raised during trial and also by way of the appUcation under Section 47 of C.P.c. is whether the siiit premises has been constructed over Khasra No. 997/2 or upon Khasra No. 996/1 or 996/2 and for that, it has been clearly held by both the Courts below fhat the applicant has failed to prove his ownership over the suit premises. 17. In view of the above, in the considered opinlon of fhis Conrt, leamed Court below has not comxmtted any jiuisdictional UlegaUy/niaterial irregularity in dlsinlssmg the applicant's application, warranting interference ofthis Court. 18. The revision being devoid of substance deserves to be and is hereby dismissed. Sd/- N.K.Agarwal Judge