1. The present litigation is principally restricted between a third party to a decree and the decree holder resisting the execution in respect of a portion of a decretal property.
2. The opposite party no. 1 obtained a decree in Title Suit No. 12 of 1997 filed against the opposite party no. 2 for its eviction in respect of premises no. 9, K.P. Singhee Road, Cossipore, Kolkata from the Court of the Learned Additional District Judge, Sealdah. The entire decretal premises comprised of 2,14,618 square feet of land together with structures. The said decree was assailed before the Appellate Court by the opposite party no. 2 and it is undisputed that the said opposite party later did not proceed with the said appeal. The decree was put into execution and in course of the execution proceeding spate of applications came to be poured in from various third parties asserting their independent right, title and interest that the decree is not binding upon them. The aforesaid proceedings were initiated under Order 21, Rule 97 to 101 of the Code of Civil Procedure and one of such proceedings was registered as Miscellaneous Case No. 4 of 2015. In the said Miscellaneous Case, the present petitioner was subsequently added as opposite party no. 3 and was permitted to disclose his defence. The present petitioner deposed in the said proceeding asserting its independent status in respect of a portion of a decretal property as well as the possession having given by the decree holder. The several applications, which were registered as Miscellaneous Cases were tried together and dismissed by the Executing Court with categorical observation that the petitioner never got possession of any portion of the decretal property. Subsequently, the petitioner filed the independent application under Order 21, Rule 97 to 101 of the Code which gave rise to registration of Miscellaneous Case No. 5 of 2017 inviting the Executing Court to adjudicate independent right, title and interest in respect of the said portion of the decretal property.
3. For the purpose of better understanding and to address the issue both on facts and law, the case, which is made out by the petitioner is adumbrated herein below:-
(i) the petitioner entered into an agreement to lease on 1st July, 2006 with the decree holder/opposite party no. 1 in respect of an area measuring 60,000 square feet of premises no. 9, Kali Prasanna Singhee Road, Kolkata for a period of 21 years;
(ii) it was agreed in the said agreement that the decree holder shall grant a lease in favour of the petitioner for the said period upon a payment of Rs. 3/- per square feet in respect of the aforesaid 60,000 square feet occupied area by its business associates at the said premises;
(iii) the salient features of the agreement as it would appear therefrom are that the decree holder shall accept the petitioner as intending lessee subject to the disposal of the eviction suit filed against the opposite party no. 2;
(iv) it was further agreed that the lease amount/fees of Rs. 1,80,000/- shall be paid in advance for each month its due and a further sum of Rs. 5,40,000/- shall also be paid on account of default of payment since January, 2006 for the said occupied area. Apart from the same, a further sum of Rs. 10,80,000/- being equivalent to 6 months adhoc fees amount shall be paid by the petitioner which will be adjusted at the rate of Rs. 1,00,000/- per month from the subsequent till its full adjustment.
4. After the suit was decreed a request was made by the petitioner for registration of a lease deed which is denied by the decree holder and a suit for specific performance of the said agreement being Title Suit No. 74 of 2015 is filed before the Civil Court and the same is pending.
5. Despite having aware of the available legal right of the petitioner and its possession in respect of a demised premises along with its business associates the decree passed in the said suit was put into execution being Title Execution Case No. 1 of 2011 against the opposite party no. 2 and the decree holder is contemplating to take possession of the decretal property, therefore creating a threat of dispossession of the petitioner in respect of the demised premises.
6. On the conspectus of the aforesaid facts, the petitioner prayed for adjudication of its right, title and interest in respect of the said area of 60,000 square feet being a part of the decretal property before the Executing Court.
7. It is axiomatic to record that the agreement dated 01.07.2006 has not been denied by the decree holder/opposite party herein. It is all along a specific stand of the decree holder/opposite party no. 1 that the possession of the area comprised in the said agreement was never given to the petitioner and therefore the application under Order 21, Rule 97 to 101 of the Code of Civil Procedure is not maintainable. The petitioner filed an application for stay of the execution case in the said Miscellaneous Case No. 5 of 2017, which has been rejected by the Executing Court and the same is a subject matter of challenge in the instant revisional application.
8. Mr. Ashok Banerjee, learned Senior Advocate for the petitioner vehemently submits that the petitioner has acquired an independent right, title and interest in respect of the said 60,000 square feet area on the basis of the said agreement and therefore the decree holder/opposite party no. 1 cannot recover the possession thereof in execution of the said decree. It is further submitted that even though the petitioner is not in physical possession yet his possession is constructive through its business associates and Executing Court, thus wrongly held that the petitioner is not in possession of the said area.
9. It is ardently submitted by Mr. Banerjee that it is not mandatory that the third party to the decree should be actually dispossessed to maintain the application under the aforesaid provisions. According to Mr. Banerjee, the threat of dispossession entitles the third party to resist the decree and protect the possession on the basis of its own right, title and interest.
10. Mr. Banerjee would contend that the findings on the possession made in a Miscellaneous Case No. 4 of 2015 are not binding on the petitioner nor can stand in the way of maintaining the independent application as the same has not achieved finality because of the pendency of an appeal before the Appellate Court. In support of the aforesaid contentions, the reliance is placed upon a Division Bench judgment of this Court in case of Satyanarayan Prosad Gooptu v. Diana Engineering Company Reported in 55 CWN 509. On the other hand, Mr. Jayanta Mitra, learned Senior Advocate appearing for the decree holder/opposite party submits that the Trial Court did not commit any error in holding that the petitioner was never in possession of the said area and thus cannot maintain an application under the said provisions. Mr. Mitra arduously submits that there had been the express findings of the Executing Court in Miscellaneous Case No. 4 of 2015 relating to the possession of the petitioner in respect of the said area and so long the said findings are not set aside, it remain binding on the petitioner.
11. According to Mr. Mitra, unless a person is in possession and received threat of dispossession in execution of a decree for eviction, the provisions contained under Order 21, Rule 97 to 101 cannot be made applicable. It is submitted by Mr. Mitra, on instruction that the said agreement dated 01.07.2006 is merely an agreement to enter into a lease deed and therefore no right can be claimed on the basis thereof. It is further submitted that the said agreement clearly provides that the petitioner is a mere rent collector collecting rents for and on behalf of the decree holder/opposite party from its business associates and therefore no independent right has accrued upon the petitioner. Lastly, it is submitted that a suit for specific performance of the said agreement is pending before the Civil Court and therefore the present application is not maintainable.
12. On the conspectus of the aforesaid submissions advanced before this Court by the respective Counsels, the moot question which arises in the instant proceeding is whether the petitioner was in actual possession of the said area on the basis of the said agreement dated 01.07.2006.
13. It is no longer res integra that the word "possession" is of wide amplitude. It is not necessary that the person should remain in actual physical possession of the property and then alleged the dispossession under Order 21, Rule 99 of the Code of Civil Procedure. The constructive possession is also well recognized in legal parlance and any attempt to invade such right would tantamount to dispossession.
14. In case of H. Seshadri v. K.R. Natarajan & Anr. reported in (2003) 10 SCC 449 the Apex Court held that in order to maintain an application under Order 21, Rule 99 and 100 of the Code of Civil Procedure what is sinequanon is that the applicant must ascertain independent right dehors the judgment debtor and he is in possession of the premises on such basis. It would be relevant to quote the relevant portion of the said judgment which runs thus:-
"12. The judgment under appeal demonstrates that the High Court did not come to a definite finding to the effect that the appellant was a rank trespasser or claimed his title in or over the disputed premises under Respondent 2. Although the High Court did not disbelieve the actual possession of the appellant in respect of the suit premises but without any basis whatsoever and without setting aside the findings of the trial Judge it came to the conclusion that such possession was unlawful.
13. For the purpose of considering an application under Order 21 Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise."
15. In Ashan Devi & Anr. v. Phulwasi Devi & Ors. reported in (2004) 1 CHN 182 (SC) the Apex Court considers the meaning of the word "possession" to be a word of open texture required to be ascertained from the context and on the basis of the particular facts of the case. It is further held therein that the word "possession" is somewhat similar to "control over" the property in order to exclude all others, in these words:-
"22. The word "dispossessed" as used in Order 21, Rule 99 of the Code has been narrowly construed to be an ouster from actual and physical possession of the property by several High Courts. See Pera Naidu v. Soundaravalli Ammal [AIR 1954 Mad 516 : (1954) 1 MLJ 179] AIR at p. 519; Rajendra N. Das v. Minatunnisa Bibi [ (1966) 32 Cut LT 972 : ILR 1966 Cut 611] and Emerciano Leonardo Dias (Dr.) v. Ganexama B. Naique Vaingancar [AIR 1978 Goa 48] .
23. Salmond on Jurisprudence explains that the word "possession" is a word of "open texture". Its legal meaning has to be ascertained from the context. The property involved in the present case is open vacant land. Such property is possessed by a person who has control over the same. This "control" over the property means "power to exclude all others". The test then for determining whether a man is in possession of anything is whether he is in "general control" of it-maybe, that he is not in actual and physical possession or using the same.
24. The objectors have laid evidence before the executing court to show that after obtaining by recitals in the sale deeds delivery of possession of the property, the names of purchasers were also mutated in the municipal records. Merely because at the time of execution of the decree through Court Nazir, the objectors were not physically present on the property, it cannot be said that the delivery of possession to the decree-holder by the court does not amount to the objectors' legal ouster or "dispossession". The word "possession", therefore, has to be given contextual meaning on facts of a particular case and the nature of the property involved.
25. In interpreting the provisions of Order 21, Rule 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The legislature purposely amended provisions in Order 21 to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram [(1985) 1 SCC 61] .
26. The High Court in the impugned judgment dated 23-4-2001 has construed the word "dispossessed" under Order 21, Rule 99 of the Code to mean actual and physical dispossession. The reasoning adopted is that if the expression "dispossessed" is thus not narrowly construed, "anybody apprehensive of dispossession or anybody claiming right although not actually dispossessed can come within the purview of Rule 99 and there would be floodgate and a decree-holder who obtained a decree by due process of law would be frustrated in not getting the fruit of the decree"."
16. What emerges from the aforesaid reports are that the word "possession" has been given contextual meaning and the nature of the property involved. It should not be restricted to an actual physical possession but should include the constructive and symbolic possession as well. The word "dispossession" occurring under Order 21, Rule 99 of the Code of Civil Procedure cannot be construed in strict and limited sense but in a wider manner. If a person alleges that he has been threatened of dispossession may be symbolic or constructive, by an execution of a decree for eviction, it was never intended by the legislatures that he should first suffer dispossession and make an application for repossession upon adjudication of independent right, title and interest. Mere threat of dispossession entitles the person to approach Executing Court under the aforesaid provision and resist the decree and it is obligatory on the Executing Court to adjudicate the right, title and interest of such person before an order for recovery of possession is passed. The support of the Supreme Court can be lent in case of Anwarbi v. Pramod D.A. Joshi & Ors. reported in (2000) 10 SCC 405 wherein it is held:-
"3. In view of the obstruction so caused it was for the decree-holder to take appropriate steps under Order 21, Rule 97 for removal of the obstruction and to have the rights of the parties including the obstructionist adjudicated under the provisions of Order 21, Rule 101. We do not know if any such proceedings have been taken by the decree-holders and whether such proceedings are pending or not. The appellant, however, made various applications including the present application under section 151 of the Civil Procedure Code read with Order 21, Rule 35 and Order 21, Rule 101 for adjudication of her rights. All these applications of the appellant have been dismissed on the ground that these are premature since she is in possession.
4. Learned counsel for the appellant has contended that the appellant is being repeatedly threatened with dispossession. We, therefore make it clear that the possession of the appellant cannot be disturbed except in accordance with law; and that in view of the obstruction raised by her to the execution of the said decree, the rights of the obstructionist will have to be decided in appropriate proceedings, in accordance with law. Unless and until such proceedings terminate in favour of the decree-holder, the decree-holder cannot take possession and the appellant is entitled to retain possession."
17. The concept of qua timet may be taken recourse to. It is therefore obligatory for the Executing Court to adjudicate the right, title and interest under Rule 101 of Order 21 of the Code and not by a separate suit. By virtue of Rule 103 of Order 21 of the Code, the decision of the Executing Court is treated as a decree. It is, therefore, sinequanon for maintaining such application that the third party must assert his possession in the decretal property or any part thereof. A person who has not been dispossessed or likely to be dispossessed in execution of a decree is not entitled to maintain an application under Order 21, Rule 97 to 101 of the Code. The aforesaid observation can lend support from the language used in Rule 101 of Order 21 of the Code which clearly provides that all questions including questions relating to right, title and interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the Executing Court and not by a separate suit. By virtue of the language used in Rule 101 of Order 21 of the Code, the provisions relating to Rule 99 thereof has been expressly included and therefore the concept of possession and dispossession assumes great importance and relevance.
18. Reverting back to the facts of the instant case in the perspective of the law enunciated herein above, whether the order impugned deserves any interference. In the impugned order, the Executing Court held that the petitioner was never put in possession of the said area and therefore not entitled to an order for stay of execution proceeding. The different clauses of the agreement dated 1st July, 2006 need meticulous examinations and the interpretation so as to gather the intention of parties executing the same. The agreement contains various provisions relating to payment of the lease amount/fees by the petitioner even during the pendency of the suit for eviction and certain amounts to be deposited to secure the due compliance thereof. It is not ascertainable from the various clauses of the said agreement when such lease would take effect or in other words will commence, yet the petitioner was obliged to pay the lease amount/fees under the said agreement. It is the specific stand of the decree holder before this Court that the period provided under the said agreement would commence on and from the date of the execution of the lease deed and not from the date of the execution of the said agreement.
19. Interestingly, it is further submitted by the learned Advocate of the decree holder that the said agreement contemplates that the petitioner would collect the rent from its business associates as a rent collector for and on behalf of the decree holder/opposite party no. 1.
20. This Court initially finds that the Executing Court ought to have examined the said agreement and interpret the various provisions to gather an intention of the parties but the moment it has been placed before this Court the specific finding on p
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ossession made by the Executing Court in Miscellaneous Case No. 4 of 2015, such aspect, in my opinion, takes a back seat. In adversarial system the defendant/opposite party can assert his independent right in a proceeding and the findings on such right shall be binding upon such party, even if the proceeding is not initiated by him. The Executing Court have categorically held that the petitioner is not in possession of the said area of the decretal property and so long such finding remains, it is binding upon the petitioner. Furthermore, the petitioner has assailed the said judgment before the Appellate Court and the appeal is pending. There is no quarrel to the proposition of law laid down in case of Satyanarayan Prosad Gooptu (Supra) that once an appeal is filed against the decision, it loses its characteristic of finality and becomes res sub judice. It is one thing to say that the decision did not attend finality but it is otherwise true as well that so long such finding is not set aside or the decision is reverse, it remains binding upon the parties to the said proceeding. 21. In the instant proceeding, the findings recorded in the said proceeding, so far as it relates to the possession of the petitioner in respect of the said area is concerned, is staring at the face of the petitioner and therefore, this Court does not find any infirmity and/or illegality in the impugned order holding that the petitioner is not in possession of the said portion of the decretal property. 22. The position would be different when the petitioner succeeds in an appeal filed before the Appellate Court. In such eventuality, it would be open to the Executing Court to consider the various clauses of an agreement not only touching the right but also on possession. It will then be open to the Executing Court to also take into account the stand the decree holder/opposite party which has been taken before this Court and to decide the matter on merit. 23. In view of the above observations and findings made herein above, the revisional application is dismissed. 24. However, there shall be no order as to costs.