12 October 2004
Supreme Court
Download

P.JANARDHANA RAO Vs KANNAN

Bench: ASHOK BHAN S.H. KAPADIA
Case number: C.A. No.-001664-001664 / 1998
Diary number: 2641 / 1998
Advocates: R. N. KESWANI Vs R. AYYAM PERUMAL


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  1664 of 1998

PETITIONER: P. Janardhana Rao

RESPONDENT: Kannan & others

DATE OF JUDGMENT: 12/10/2004

BENCH: ASHOK BHAN S.H. KAPADIA

JUDGMENT: J U D G M E N T

KAPADIA, J.

       Being aggrieved by the judgment and order dated  12.11.1997 passed by the High Court of Madras in C.R.P.  No.2960 of 1995, dismissing Miscellaneous Petition No.600 of  1991 made by the decree holder under Order 21 Rule 97 of  Code of Civil Procedure, this civil appeal has been preferred by  grant of special leave.  

       For the sake of convenience, the parties herein are  referred to as they are arrayed in the Executing Court.  

       The facts giving rise to this civil appeal are as follows:\027  

       P. Janardhana Rao, the plaintiff filed an Ejectment Suit  No.44 of 1989 in the Court of Small Causes, Madras for getting  possession from Chelladurai and Bhagyalakshmi.  The suit was  decreed on 31.7.1990.  Pursuant to the said decree, the plaintiff  filed Execution Petition no.175 of 1991 for obtaining delivery  of possession.  Three obstructionists Kannan, Krishnan and Raji  resisted the plaintiff\026decree holder from taking possession.  In  view of the said obstruction, the decree holder preferred  miscellaneous petition No.600 of 1991 under order 21 rule 97  CPC for removal of the obstruction put up by the aforestated  three obstructionists (respondents herein).   

       In the said miscellaneous petition no.600/1991, the  executing Court recorded the evidence. PW1 deposed that in  1982 he purchased the suit property admeasuring 2300 sq. ft.  situate in Friends Avenue, Razack Garden, Arumbakkam,  Madras-106 vide Ex.P1, from Srinivasa Iyengar; that in 1982  when he bought the suit property, the three obstructionists were  not there; that he had engaged two labourers, Chelladurai and  Bhagyalakshmi, to construct his house; that on completion,  Chelladurai and Bhagyalakshmi refused to vacate and,  therefore, PW1 instituted the ejectment suit no.44 of 1989 in  the Court of Small Causes, Madras. The suit was decreed.   Appeal therefrom was dismissed.  PW1 in his deposition further  stated that the aforestated three obstructionists Kannan,  Krishnan and Raji were put up by the judgment-debtors.  In  cross-examination, PW1 stated that he knew Kannan, Krishnan  and Raji since 1980.  He further stated that there were three  houses in the suit property since 1980.  

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

       RW1, Thiru Krishnan, one of the obstructionists; deposed  in his evidence that they were residing in the suit property from  1965; that the three houses belonged to them; that he resided in  Vathalagundu Arumugam Nagar abutting Friends Avenue; that  since 1965, he has been residing in Vathalagundu Arumugam  Nagar; that he did not possess electricity bills of 1965; that he  had not encroached upon the suit property; that he had  electricity bills of 1993; that he had constructed a house on the  suit property in 1965; and that he had paid property taxes only  after 1989.  

       On the above evidence, the executing Court allowed the  miscellaneous petition no.600 of 1991, holding that there was  no evidence of possession of the obstructionists from 1965 as  claimed.

       Being aggrieved, the obstructionists came before the  High Court by way of revision under section 115 CPC.  By the  impugned judgment, the High Court allowed the revision  instituted by the obstructionists and dismissed the application of  the decree-holder under order 21 rule 97, holding, that the three  obstructionists were in occupation since 1980 i.e. prior to filing  of the Ejectment Suit No.44/1989.  The High Court further held  that there was no evidence to show that the three obstructionists  were inducted by the judgment-debtors.  In this connection, the  High Court relied upon the statement of PW1 that he knew the  obstructionists since 1980 and that they were residing in the  houses in the suit property from 1980.  Consequently, the  revision filed by the three obstructionists was allowed.  Hence,  this civil appeal.

       Order 21 Rule 97 CPC is the provision for removal of the  person bound by the decree who does not vacate.  It takes into  account a situation where resistance to possession is offered by  the judgment-debtor or any other person bound by the decree  which will include the claim of a person who claims to be in  possession in his own right and independently of the judgment- debtor but whose claim ex-facie is unsustainable.  Where,  however, resistance is offered or where obstruction proceeds  from the claimant claiming to be in possession in his own right  and whose claim cannot be rejected on the ground of want of  good faith, without investigation, the decree-holder must  proceed under order 21 rule 97. [See: Ragho Prasad v. Pratap  Narain Agarwal reported in 1969 All. L.J. 929].

       In the case of Noorduddin v. Dr. K. L. Anand reported in  [(1995) 1 SCC 242], it has been held as follows:\027          "8.     Thus, the scheme of the Code clearly  adumbrates that when an application has been  made under Order 21, Rule 97, the court is  enjoined to adjudicate upon the right, title and  interest claimed in the property arising between the  parties to a proceeding or between the decree- holder and the person claiming independent right,  title or interest in the immovable property and an  order in that behalf be made.  The determination  shall be conclusive between the parties as if it was  a decree subject to right of appeal and not a matter  to be agitated by a separate suit.  In other words,  no other proceedings were allowed to be taken.  It  has to be remembered that preceding Civil  Procedure Code Amendment Act, 1976, right of  suit under Order 21, Rule 103 of 1908 Code was

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

available which has been now taken away.  By  necessary implication, the legislature relegated the  parties to an adjudication of right, title or interest  in the immovable property under execution and  finality has been accorded to it.  Thus, the scheme  of the Code appears to be to put an end to the  protraction of the execution and to shorten the  litigation between the parties or persons claiming  right, title and interest in the immovable property  in execution.

9.      Adjudication before execution is an  efficacious remedy to prevent fraud, oppression,  abuse of the process of the court or miscarriage of  justice.  The object of law is to mete out justice.   Right to the right, title or interest of a party in the  immovable property is a substantive right.  But the  right to an adjudication of the dispute in that behalf  is a procedural right to which no one has a vested  right.  The faith of the people in the efficacy of law  is the saviour and succour for the sustenance of the  rule of law.  Any weakening like in the judicial  process would rip apart the edifice of justice and  create a feeling of disillusionment in the minds of  the people of the very law and courts.  The rules of  procedure have been devised as a channel or a  means to render substantive or at best substantial  justice which is the highest interest of man and  almameter (sic) for the mankind.  It is a foundation  for orderly human relations.  Equally the judicial  process should never become an instrument of  oppression or abuse or a means in the process of  the court to subvert justice.  The court has,  therefore, to wisely evolve its process to aid  expeditious adjudication and would preserve the  possession of the property in the interregnum  based on factual situation.  Adjudication under  Order 21, Rules 98, 100 and 101 and its successive  rules is sine qua non to a finality of the  adjudication of the right, title or interest in the  immovable property under execution.

10.     The question is whether the executing court  was right in dismissing the application on the  ground that the dispute was adjudicated in RFA  No.305 of 1986 or as held by the High Court that  the dispute was decided in the writ proceedings  referred to earlier.  The execution court is enjoined  to adjudicate the claim or the objection or the  claim to resistance.  As seen, Rule 97 enables such  a person to make an application which must be  independent of the judgment-debtor or a person  having derivate right from the judgment-debtor.  The applicant in his own right must be in  possession of the property\005."  

       Applying the above tests, we may now examine the  question \026 whether the obstructionists were in possession of the  property in their own right, as claimed.  In this regard, we may  now examine the evidence on record.  

       PW1, in his examination-in-chief, deposed that the three  obstructionists were set up by the said Chelladurai and  Bhagyalakshmi.  It was the case of the obstructionists that they

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

were in possession of the suit property since 1965.  However,  no evidence was produced.  On the contrary, RW1 stated in his  evidence that he started paying property tax from 1989 and that  prior thereto he had not paid the property tax.  As stated above,  PW1 instituted the ejectment suit in the Small Causes Court in  1989. Therefore, the evidence has been created by the  obstructionists only from 1989.  No electricity bills from 1965  onwards have been produced.  No ration card has been  produced.  No proof of residence from 1965 has been produced.   The High Court has relied upon the statement of PW1 stating  that he knew three obstructionists since 1980 and that three  houses existed in the suit property from 1980.  In our view, the  trial Court was right in examining the entire evidence on record  and coming to the conclusion that there was no evidence from  the side of the obstructionists to show that they were in  possession of the suit premises prior to the filing of ejectment  suit no.44 of 1989.  As stated above, on the contrary, the  property tax receipts show that the obstructionists have entered  into occupation from 1989.  The High Court has failed to  appreciate the entire evidence on record.  Merely because PW1  knew the three obstructionists from 1980 would not be  sufficient to conclude that three obstructionists came to reside  in the suit property from 1965, as alleged. There is no evidence  of residence from the side of the obstructionists between 1965  and 1989.  In the circumstances, the High Court erred in  dismissing the decree holder’s application under order 21 rule  97 CPC.

       For the reasons stated above, the appeal is allowed.  The  impugned judgment and order of the High Court is set aside and  that of the execution Court is restored.  The said miscellaneous  petition no.600 of 1991 in execution petition no.175 of 1991 is  made absolute.  However, in the facts and circumstances of the  case, there shall be no order as to costs.