Case: ASGAR  Vs. MOHAN VARMA

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 grievances once and for all finally resolved in execution proceedings themselves. 36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v Rajesh, Justice A P Misra, speaking for a two judge Bench of this Court, while interpreting the expression any person in Rule 97, held thus : 10…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, including tenants or other persons claiming right on their own, including a stranger. 37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession. 38. In a succinct elucidation of the law in Nusserwanji E Poonegar v Mrs Shirinbai F Bbesania , Justice R A Jahagirdar as a Single Judge of the Bombay High Court interpreted Rule 101 of Order XXI: 10. From the rule extracted above, it is easily seen that the language of the rule is peremptory and the powers given to the executing Court under the said rule are plenary. The powers given to the executing Court under Rule 101 are not qualified or hedged by any restrictions. On the other hand it shows that the executing Court is required to adjudicate upon all questions mentioned in the said rule as if it had jurisdiction to deal with every question that may so arise. By a legal fiction, an executing Court which may otherwise have no jurisdiction is invested with the jurisdiction to try all questions under the aforesaid rule. 39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103. 40. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder. 41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]22. The above observations of the High Court indicate that the reason why it did not go into the question was because it did not arise from the order on the claim petitions. In fact, the High Court also observed that it would not pronounce judgment on whether the appellants were entitled to raise the issue. While dismissing the Special Leave Petition against the judgment of the High Court, this Court in its order dated 25 July 2014 observed that insofar as the question of compensation for improvements made by the appellants is concerned, the appellants were free to pursue an appropriate remedy for the redressal of their grievances in accordance with law. These observations as contained in the order of this Court cannot be construed to mean that the respondents would be deprived of their right to set up a plea of constructive res judicata if the appellants were to raise such a claim. The appellants were, as this Court observed, free to pursue the appropriate remedy for redressal of their grievances in accordance with law. This must necessarily be construed to mean that all defences of the respondents upon the invocation of a remedy by the appellants were kept open for decision. The liberty granted by this Court was not one-sided. It encompasses both the ability of the appellants to take recourse and of the respondents to raise necessary defences to the invocation of the remedy. Therefore, we do not find any merit in the submission urged on behalf of the appellants that the earlier judgment of the Kerala High Court and the order of this Court preclude the respondents from raising the bar of constructive res judicata28. In the present case, what the appellants now seek to assert is that in pursuance of the provisions of Section 4(1), they are entitled to remain in possession until their claim for compensation for the improvements made on the land is adjudicated upon. As we have found earlier, the claim which the appellants asserted in Execution Application 38 of 2009 was specifically for declaring that they were entitled to remain in possession as lessees and that the respondents were not entitled to dispossess them from the property in their possession. Though they sought to assert that claim in their character as lessees, the issue which requires consideration is whether the claim to compensation under Section 4(1) of the Act of 1958 could have been asserted in the earlier proceedings and should have been asserted then32. We are not inclined to decide this question on a priori consideration, for the simple reason that under the CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future34. In determining as to whether the bar of constructive res judicata stands attracted, it is necessary to advert to the earlier application which was filed by the appellants in the execution proceedings. The appellants styled the application as one under Order XXI Rule 99 of the CPC but that, in our view, is not determinative of the true nature of the application.36. Under Order XXI Rule 101, all questions including questions relating to right, title and interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit37. These principles have been reiterated in Har Vilas v Mahendra Nath, in which it has been held that the provisions of Order XXI Rule 99 will not defeat the right of a third person claiming to be in possession of the property forming the subject matter of a decree in his own right to get his objection decided under Rule 97, at a stage prior to dispossession39. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order XXI Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order XXI Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order XXI Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 10340. The claim which the appellants have now sought to assert for compensation under Section 4(1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder41. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order XXI is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order XXI Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.