1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4450 OF 2009 Shri Sudam Genu Salunke .. Petitioner versus Shri.Motiram @ Motilal Chunilal Gujar (since deceased) through heirs Mr.Madhavdas Chunilal Gujar & Ors. .. Respondents Mr.Ashok B. Tajane for the petitioner. Mr.P.J.Pawar for the 1st respondent. CORAM : A.S.OKA, J. DATE ON WHICH J UDGMENT IS RESERVED. : 15th October 2009. DATE ON WHICH JUDGMENT IS PRONOUNCED. : 17th November 2009. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the judgment and order dated 21st April 2009 passed by the District Court in an appeal preferred by him. 2. The first to third respondents are the decree holders who filed an execution application in the year 1967 for executing a decree for possession passed in Civil Appeal No. 415 of 1957 arising out of Regular Civil Suit No. 2 60 of 1953 filed by the first to third respondents. The decree passed which is sought to be executed is of possession directing the judgment debtors (the fourth to seventh respondents) to deliver possession of an area of 13 acres from the northern part of land bearing survey No. 66 of village Pande to the first to t hird respondents. 3. On the said execution application, the trial court passed an order appointing the district inspector of land records as a Court Commissioner for handing over the possession of the area of 13 acres after demarcation thereof. The first to third respondents made an application at Exhibit 61 for removal of obstruction of the petitioner and for grant of police protection at the time of execution of the decree. The petitioner made an application at Exhibit 66 objecting to the execution and for staying the order passed by the trial court appointing the District Inspector of land records for executing the decree. The petitioner made an application at Exhibit 68 praying that the execution application be dismissed. The learned trial judge by order dated 12th September 2006 rejected the application at Exhibit 66 and allowed the application at Exhibit 61. Being aggrieved by the said order, the petitioner preferred an appeal before the district court. By judgment and order dated 16th January 2008, the appeal was partly allowed. The appellate court remanded the applications at Exhibit 61, 66 and 68 to the executing court for disposal in accordance with law. After remand, an application was made by the petitioner at Exhibit 99 praying that an issue of tenancy be referred to 3 the tribunal constituted under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. 4. By judgment and order dated 30th January 2009, the applications at Exhibit 66,68 and 99 were rejected by the trial court and the application at Exhibit 61 was allowed by the trial court. Being aggrieved by the said order, the petitioner preferred Civil Appeal No. 151 of 2009 before the District Court. By the impugned order, the appeal has been dismissed on the ground that the same was not maintainable. 5. The learned counsel for the petitioner invited my attention to the judgment and order dated 16th January 2008 passed by the District Court in the earlier appeal preferred by the petitioner. He submitted that the district court in the said earlier decision directed that an enquiry has to be held in accordance with Rule 97 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). He submitted that the order dated 30th January 2009 has a force of a decree. He pointed out that the application at Exhibit 61 made by the first to third respondents was for removal of obstruction of the petitioner. He submitted that in view of Rule 103 of Order XXI of the said Code, the order of the trial court passed below application at Exhibit 61, 66, 68 and 99 has a force of decree. He submitted that the appeal before the district court was maintainable. 4 6. The learned counsel appearing for the first to third respondents submitted that the applications made by the petitioner were not maintainable. He submitted that looking to the prayers made in the said applications, it was not necessary to hold an enquiry as contemplated by Rule 97 of Order XXI of the said Code. He submitted that the district court was right in holding that the appeal was not maintainable. He submitted that the petitioner has successfully prolonged execution of the decree passed in the year 1967. He submitted that no interference was called for in writ jurisdiction under Article 227 of the Constitution of India. 7. I have given careful consideration to the submissions. The application at Exhibit 61 was made by the first to third respondents (the decree holders). A specific prayer made in the said application was for removal of obstruction of the petitioner. In the application at Exhibit 66 made by the petitioner, various objections were raised to the decree. Reliance was specifically placed on Rule 97 of Order 21 of the said code. The prayer made in the said application was for staying the implementation of the order passed on the execution application till the objection was heard. The prayer made in the application at Exhibit 68 was for dismissal of the execution application. The contention raised in the said application is that the decree sought to be executed was nullity. 8. The apex court in its decision in the case of Brahmdeo Chaudhary 5 v. Rishikesh Prasad Jaiswal((1997) 3 SCC 694) held thus: “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 XXI, Rule 35 then the decree-holder has to move an application under Order XXI, 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 XXI, Rule 97, sub-rule (2) read with Order XXI, 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 XXI, 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 XXI, 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 application under Order XXI, Rule 99 CPC 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 XXI, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order XXI, 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 XXI, Rule 98, sub- rule (1) would be deemed to be a decree as laid down by Order XXI, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI, Rule 101.” 6 9. In short the aforesaid statutory provisions of Order XXI of the said Code 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 XXI, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI, 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 XXI, Rule 99 CPC and pray for restoration of possession.” 10. The said decision of apex court was affirmed in the subsequent decision in the case of Silverline Forum Private Limited versus Rajiv Trust and another (AIR 1998 Supreme Court 1754). Thus when a stranger to the decree approaches the executing court by filing an objection, the court is duty bound to make adjudication in accordance with Rule 97 read with Rule 7 103 of Order XXI of the said Code. In the the earlier appeal preferred by the petitioner, a specific direction was issued by the District Court directing disposal of the applications at Exhibit 61, Exhibit 66 and Exhibit 68 after giving an opportunity to the parties to lead evidence. The district court held that an adjudication was required to be made in accordance with Rule 97 of Order XXI of the said Code on the said applications. While passing the impugned order, the learned district judge held that the applications at Exhibit 66, 68 and 99 were not applications governed by Rule 97 of Order XXI of the said Code. The learned district judge observed that the only prayer made in application at Exhibit 61 was for providing police protection at the time of execution and there was no complaint made about obstruction by any obstructionists. 11. The learned district judge has completely ignored the first prayer in application at Exhibit 61 that the obstruction application made by the petitioner be rejected. It was alleged in the application that the petitioner had no right to raise any objection. As stated earlier, in the applications at Exhibit 66 and Exhibit 68, specific objection is raised to the execution of the decree. The prayer in application at Exhibit 66 was for staying the implementation of the order passed on the execution application till the objection was heard and decided .The prayer in the application at Exhibit 68 was for dismissal of the execution application on the ground that the decree was not executable. As directed by the earlier order of the District Court, an 8 adjudication was held by the trial court while passing order dated 30th January 2009. The learned trial judge held that the petitioner has failed to establish his right to obstruct the execution application. Therefore, the learned district judge committed gross error by holding that the order passed on the said three applications does not have a force of decree under Rule 103 of Order XXI of the said code. The appeal was very much maintainable in so far as the order below the applications at Exhibit 61, 66 and 68 was concerned. To that extent the impugned order will to be set aside. 12. Now turning to application at Exhibit 99, the prayer was for making a reference to the tribunal under the said Act of 1948 for deciding alleged issue of tenancy. While deciding the said application, no adjudication as contemplated by Rule 97 read with Rule 103 of Order XXI of the said code was required to be made. Therefore, an appeal against an order rejecting the said application was not maintainable. In the present petition, there is no challenge to the order passed by the trial court rejecting the application at Exhibit 99. The challenge is confined to the judgment of the appellate court. The appellate court was right to the extent that an appeal against the order below the Exhibit 99 was not maintainable. To that extent the order dated 30th January 2009 passed by the trial court will have to be confirmed. Hence the appeal will have to be remanded to the district court for hearing in accordance with law in so far as order passed below applications at Exhibit 9 61 ,66 and 68 is concerned. 13. Hence, I pass the following order: : O R D E R : i) The impugned judgement and order dated 21st April 2009 is quashed and set aside. ii) It is held that the Civil Appeal No. 151 of 2009 is maintainable in so far as the challenge to orders below Exhibits 61, 66 and 68 are concerned. iii) The appeal was not maintainable in so far as the challenge to the order below application at Exhibit 99 is concerned. iv) The District Court is directed to decide the Civil Appeal No. 151 of 2009 afresh in the light of the observations made in this judgement. v) The order of the trial court dated 30th January 2009 stands confirmed in so far as the application at Exhibit 99 is concerned. vi) The appeal shall be decided as expeditiously as possible and in any event on or before 31st March 2010. vii) All contentions of the parties on merits of the appeal are expressly 10 kept open. viii) The writ petition is partly allowed in above terms with no orders as to the costs. (A.S.OKA,J)