AIR 1984 Raj 94
IN THE HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
Civil Revn. Petn. Nos. 228 and 251 of 1983
Decided On: 15.09.1983
Smt. Shri Devi
Vs.
Kashiram and Ors.
Hon'ble Judges:
M.C. Jain, J.
Counsels:
For Appellant/Petitioner/Plaintiff: J.R. Tatia, Adv. for Shri Devi, Adv.
For Respondents/Defendant: P.C. Mathur, Adv.
Subject: Tenancy
Acts/Rules/Orders:
Civil Procedure Code (CPC), 1908 - Order 21, Rules 15 and 36
Cases Referred:
Shaikh Mohammad Anass v. Bhupendra Prasad Shukul, AIR 1938 Pat 457; Madanlal v. Hansraj
Case Note:
Civil Procedure Code - Order 21 Rule 97--Provision is permissive--Held, stranger to a decree for possession has no locus standi to move executing Court informing his right or requiring investigation about possession.
The provision of Order 21, Rule 97, CPC, is only a permissive provision and not a mandatory one and the executing Court can not compel or direct the decree-holder to a move an application under Or. 21, Rule 97 and a stranger to decree for dispossession has no locus standi to move the executing Court, either informing it that he is in possession of the property in his own right and as such not bound by the decree or to claim investigation from the Court into the question of his right to continue to remain in possession of the property.
(b) Civil Procedure Code - Order 21 Rule 15--Requirements-Satisfaction of--Execution application moved by husband decree holder only as restraint order operative against wife decree holder--Held, application is for benefit of both and requirements of Order 21 Rule 15 are satisfied Smt. Shri Devi has no right, title or interest in the property, so as to resist the execution of the decree for ejectment obtained by Ramchaodra against Asuram, the husband of Smt. Shri Devi. Simply because that restraint order is in operation agaist Smt. Kamla Devi, it cannot be said that the execution is not levied for her benefit and when once the decree is completely executed, it will definitely enure for the benefit of Smt. Kamla Devi as well.
Thus, the requirements of Rule 15 are fulfilled in the present case and the execution application does not in my opinion, suffer from any illegality.
(c) Civil Procedure Code - Order 21 Rule 36--Eviction--Execution of--Eviction decree against tenant--Held, wife & other members of his family are liable to be evicted in execution of eviction decree--Objection w/R 36 is without merit
There is a decree for eviction against a tenant. Smt. Shri Devi is the wife of the tenant and is the member of the family of the tenant, being wife. The members of the family of the tenant are bound by the decree and are liable to be evicted in execution of the decree for eviction against a tenant.
Rule 36 of Order 21 CPC cannot be considered to mean that where a decree is against a tenant, constructive possession may be obtained in execution of that decree against the members of the family of that tenant. Thus, objection based on Rule 36, in my opinion, has no merit.
Revision Dismissed With Costs
ORDER
M.C. Jain, J.
1. These two revision petitions arise out of an order dated 23-5- 1983 passed by Munsif City, Jodhpur, in Civil Execution Case No. 51 of 1979, whereby the learned Munsif ordered that the applicant before the executing Court Smt. Shri Devi will not be evicted from the premises in question forcibly, in case if, is found that she is in possession of the property in her own right. The other objection by Smt. Shri Devi in her application, was decided against her.
2. In order to appreciate the controversies, which this Court is required to resolve in the present revision petitions, it would be proper to recall a few relevant facts. One Ramchandra obtained at decree for eviction against his tenant Asuram on 11-5-1974. He levied execration of the decree. During the pen-dency of the execution, he sold the house property to Kashi Ram and Smt. Kamla Devi by a registered sale deed dated 26-3-1981. The transferees were substituted as decree-holders in place of Ramchandra by the executing Court. Smt. Shri Devi on the basis of the agreement to sell by Ramehandra in her favour, instituted a civil suit against Smt. Kamla Devi and also filed an application for grant of temporary injunction in the Court of Additional District Judge No. 2, Jodhpur. That application was allowed and a temporary injunction was issued against Smt. Kamla Devi, one of the vendees. In the original suit by Smt. Shri Devi, the other vendee Kashi-ram was not a party. Subsequently he was made a party and an application for grant of temporary injunction was also moved against him, but that application was rejected by the trial court on 6-12-1982 and that order was upheld in appeal by this Court on 23-2-1983. Kashiram, one of the decree-holders-purchasers of the property, submitted an application on 8-4-1983 that warrant of possession was issued by the Court on 28-8-1982 and in execution of the warrant the possession officer of the Court went to the spot to deliver the possession, but the house was found locked. Thereupon he submitted an application on 31-8-1982 that possession may be delivered after breaking open the lock. On that the court had ordered on 1-9-19S2 to deliver possession after breaking open the lock. On the same date Smt. Shri Devi, wife of the judgment-debtor, submitted an objection petition stating that she had already filed an objection under Section 151, read with Order 21, Rule 97, C.P.C. The execution of the decree had been stayed in her suit against Smt. Kamla Devi, so she has got a legal right to continue to remain in possession of the house in question, so the decree-holders cannot evict her from the house in question forcibly with the police aid. Kashiram and Smt. Kamla Devi are the co-owners of the property in question and the property is undivided. In such a situation, the decree-holder is onty entitled to get constructive possession from her. It was prayed that the decree-holder may be put into the constructive possession of the property and it may further be ordered that she may not be put out of the property forcibly with the police aid. The teamed Munsif, by his order dated 20-5-1983 le-jerted the objection submitted by Smt. Shri Devi, under Section 151, road wrth Order 21, Rule 97, C.P.C., in which he held that the objector Smt. Shri Devi being third party, has no locus standi to get her right adjudicated, so she cannot interfere in the executing proceedings. After hearing the application under Section 151, C.P.C., dated 8-4-1983, the learned Munsif decided the application in the manner that Smt. Shri Devi shall not he put out of possession forcibly, in case it is found that she is in occupation of the property independently in her own right. Dissatisfied with this order dated May 23. 1983, Smt. Shri Devi, as well as Kashiram have preferred this revision.
3. I have heard Shri J. R. Tatia, learned coun-sel for Smt. Shri Devi and Shri P. C. Mathur, learned counsel for the decree-holders.
4. On behalf of Smt. Shri Devi, her learned counsel Shri J. R. Tatia submitted that the execution levied against the judgment-debtor, is not in accordance with the provisions of Order 21, Rule 15, C.P.C. In case of joint decree-holders, when one of the decree-holders levies execution, then it should be stated in the execution application that the execution is being levied for the benefit of all the decree-holders. Mr. Tatia urged that it is an essential requirement of the provision contained in Rule 15 of Order 21 and the present execution application does not fulfil the requisite condition of that provision. The requirement of Rule 15 is that one of the decree-holders, who levies the execution, is entitled to levy the execution only when it is for the benefit of all the decree-holders. One of the decree-holder Kashiram who islevying the execution, has nowhere stated that he is executing the decree even for the benefit of his wife Smt. Kamla Devi. Such a statement could not have been made by him, as Smt. Kamla has been injuncted by the Court not to execute the decree. Mr. Tatia urged that an illegality even in the execution proceedings can be pointed out even by the stranger to the decree, who otherwise has no locus standi. He referred to a decision in Shaikh Mohammad Anass v. Bhupendra Prasad Shukul (MANU/BH/0253/1937 : AIR 1938 Pat 457). In that case it has been held where an application for execution is alleged to have been made on behalf of the applicant himself and also another person having an interest in a portion of the decree, it is necessary, in order to comply with the provisions of Order 21, Rule 15, to state that the application is taken on behalf of the applicant and for the benefit and on behalf of the other person entitled to execute the decree. Unless this is done, the application cannot be treated as having been made on behalf of both.
5. Mr. P. C. Mathur, learned counsel for the decree-holders, on the other hand submitted that the petitioner has no locus standi, whatsoever, to raise any legal objections. She is stranger to the decree. He urged that Smt. Shri Devi, the objector cannot be heard. Even otherwise if the decree is executed, it will be for the benefit not only of Kashiram, but also of his wife Smt. Kamla Devi. He further submitted that it is significant to note that the present decree-holders are the transferees during the pendency of the executing proceedings, so they have come on record by way of substitution and in such a situation if one of the decree-holders proceeded to execute the decree, it would be for the benefit of the other decree-holder as well and it is not necessary to specifically state that the decree-holder, who is proceeding with the execution, is executing the decree for the benefit of the other decree-holder as well. If the decree stands executed, then the decree shall stand satisfied and the judgment-debtor would be absolved from the liability under the decree. Mr. Mathur, on the other hand, referred to Panna Lal Agrawal v. Kanhaiya Lal Jain (MANU/BH/0080/1974 : AIR 1974 Pat 284). In that case it has been held that one of the decree-holders can apply for execution on behalf of all and it is not incumbent for the applicant to expressly state that he is applying on behalf of all the decree-holders. If it appears to the Court that the decree is being executed for the benefit of all the decree-holders, it may allow the execution to proceed.
6. I have considered the rival submissions of the learned counsel for the parties and I find considerable force in the submission of Shri p. C. Mathur. It may be observed that Smt. Shri Devi, in my opinion, has absolutely, no locus standi to raise any objection in the execution proceedings and that she cannot be heard on the point that the application for execution is not valid, as it does not fulfil the requirements of Rule 15 of Order 21, C.P.C. I had an occasion to consider the question in Madanlal v. Hansraj, S. B. Civil Revision petition No. 419 of 1980, decided on 14-9-1983, as to whether the stranger has any right to move the executing Court in connection with raising objections against the execution of the decree. That question was considered in the light of the provisions of Order 21, Rule 97 C.P.C., as well as Order 21, Rule 35, C.P.C. It was observed in that case, as under:--
"
If the legislature had intended, it could have granted a right to the obstructionist to maintain an obstruction petition or could have made it imperative for the decree-holder to move an applications against the obstructionist or could have empowered the Court to give direction to the decree-holder to move such an application if it feels that the obstructionist without being heard could not be proceeded against. But no such provision has been enacted obviously for the reason that the decree will never be allowed to be executed and hurdles will be created in the execution of the decree by raising false and frivolous claims and rights to continue to remain in possession Of the property asserting that the obstructionist is not bound by the decree.
From the consideration of the case law, referred to above, the legal position that emerges is that the provision of Order 21, Rule 97, C.P.C. is only a permissive provision and not a mandatory one and the executing Court cannot compel or direct the decree-holder to move an application under Order 21, Rule 97 and a stranger to a decree for dispossession has no locus standi to move the executing Court, either informing it that he is in possession of the property in his own right and as such not bound by the decree or to claim investigation from the Court into the question of his right to continue to remain in possession of the properly. Even when obstruction is, reported by the officer executing the warrant of possession, still it is up to the decree-holder to move an application under Order 21, Rule 97, C.P.C., or not."
7. Apart from that I fail to understand as to how the requirements of Rule 15 are lacking in the present execution application. It is noteworthy that during the execution proceedings, the property had changed hands and in place of the original decree-holder, the transferees of the property have been brought on record. It is true that one of the transferees has been restrained from executing the decree, but there is no such restraint order against the other decree-holder, that is, Kashiram and the two courts, the trial court as well as this Court, have found that Smt. Shri Devi has no right, title or interest in the property, so as to resist the execution of the decree for ejectment obtained by Ram Chandra against Asuram, the husband of Smt. Shri Devi. Simply because that restraint order is in operation against Smt. Kamla Devi, it cannot be said that the execution is not levied for her benefit and when once the decree is completely executed, it will definitely enure for the benefit of Smt. Kamla Devi as well, as observed by the Patna High Court in the case cited by Shri P.C. Mathur, learned counsel for the decree-holders, it is not necessary to expressly state that the decree-holder proceeding with execution of the decree, is doing so for the benefit of all the decree-holders. Smt. Kamla Devi has been brougt on record in the execution proceeedings. She is well aware of the execution, but she cannot proceed because of restraint order. In such a situation it can be taken that the execution, which is being levied by her husband, is for the benefit of both of them. Thus, the requirements of Rule 15 are fulfilled in the present case and the execution application does not, in my opinion, suffer from any illegality.