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Pradeep Ramgopal Gupta v/s Rukminibai Rammanohar Shahu & Others


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

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    Writ Petition No. 4427 of 2019

    Decided On, 04 February 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE MANISH PITALE

    For the Petitioner: S.S. Sitani, Counsel. For the Respondents: R1, V.V. Bhangde, R3, Chandurkar, Counsels.



Judgment Text


1. A serious challenge is raised on behalf of the respondent No.1 to the very maintainability of the present writ petition, whereby the petitioner (original decree holder) has challenged order dated 20/06/2019 passed by the Court of Joint Civil Judge, Junior Division, Nagpur (Executing court).

2. It is contended on behalf of the respondent No.1 that looking at the scheme contemplated under Order XXI Rules 97 to 103 of the Code of Civil Procedure (CPC), which is a complete Code in itself, the petitioner can challenge the impugned order only by way of appeal and not by filing the present writ petition.

3. The petitioner had filed a suit against the respondents for specific performance, declaration and permanent injunction. The petitioner sought specific performance of an agreement dated 07/01/1983 executed between him and the original defendant No.1 (respondent No.2 represented through legal representatives in this petition). The petitioner later amended the suit to challenge a sale deed executed by the aforesaid original defendant No.1 in favour of the respondent No.1 (original defendant No.3) in respect of part of the suit property and he sought a decree, directing the defendants to handover possession of the suit property after execution of sale deed. On 30/07/2012, the Trial Court decreed the suit, thereby directing the legal representatives of the original defendant No.1 to execute sale deed in favour of the petitioner in respect of the suit property. The Trial Court further declared that the sale deed dated 12/12/2003, executed by the original defendant No.1 in favour of the respondent No.1 herein was null and void and further directed respondent No.1 to handover possession of the said portion to the petitioner.

4. The respondent No.1 filed appeal before the Appellate Court. By judgment and order dated 09/12/2015, the Appellate Court dismissed the appeal and confirmed the decree. The respondent No.1 then filed Second Appeal No.51 of 2016, before this Court, which was admitted on five questions of law. But, by the judgment and order dated 17/10/2018, this Court dismissed the second appeal, thereby confirming the decree passed by the Trial Court.

5. Special Leave Petition No.32171 of 2018 filed by respondent No.1 before the Hon’ble Supreme Court, was also dismissed, but an observation was made by the Hon’ble Supreme Court in order dated 05/03/2019. The said order reads as follows:

“We do not find any infirmity in the impugned judgment. We, however, make it clear that the decree passed in these proceedings is for specific performance. If the petitioner has any right as a tenant she can always enforce those rights.

The Special Leave Petition is, accordingly, dismissed. Pending applications, if any, stand disposed of.”

6. The petitioner had already filed execution proceedings in the year 2012 and after dismissal of the special leave petition, on 11/03/2019, the respondent No.1 filed an application under section 47 of the CPC praying for the following reliefs.

“PRAYER: It is therefore, prayed that this Hon’ble Court may kindly be pleased to :

(i) Allow the present application and be further pleased to close the present proceedings by holding that the decree dated 30/07/2012 in R.C.S. No.1663/03 only directs giving of symbolic possession since the judgment-debtor no.3 has preexisting right as tenant and be further pleased to hold that the decree of specific performance stands satisfied in view of executing of sale deed in favour of plaintiff.

(ii) Or in alternative if this Hon’ble Court comes to the conclusion that the decree dated 30/07/2012 in R.C.S.No.1663/03 directs handing over of actual physical possession of the suit property, then the said decree being nullity (lacking inherent jurisdiction) cannot be enforced in the eyes of law.

(iii) Any other relief as this Hon’ble Court deems fit and proper in the facts and circumstances of the case may kindly be granted.”

7. The said application filed by the respondent No.1 was marked as Exhibit-53. The Executing Court allowed the objection and passed the following order.

“ORDER

The objection is allowed on the following terms;

i) The decree dated 30-07-2012 passed in RCS No.1663/2003 is only in respect of symbolic possession to decree holder in view of preexisting tenancy right of JD No.3.

ii) Issue possession warrant as per order 21, rule 36 of Civil Procedure Code for delivery.

iii) The application is disposed of.”

8. The present writ petition has been filed by the petitioner challenging the said order of the Executing Court. Mr.S.S.Sitani, learned counsel appearing for the petitioner, submitted that the Executing Court erred in passing the impugned order and holding that the petitioner could get only symbolic possession of the suit property in view of preexisting tenancy right of respondent No.1. It was submitted that the observation made by the Hon’ble Supreme Court in its order dated 05/03/2019, was being misused by the respondent No.1. By placing reliance on judgment of the Hon’ble Supreme Court in the case of R.Kanthimathi v. Beatrice Xavier, reported in (2000) 9 SCC 339 and judgment of this Court in the case of Radheshyam Ramkaran Coube v. A.S.Mogare, thr. LRs.Dilip Mogare and others, judgment and order dated 30/10/2014 passed in Second Appeal No.4 of 2002, the learned counsel appearing for the petitioner submitted that once the respondent No.1, being the tenant, entered into an agreement and executed sale deed in respect of part of the suit property, the relationship of landlord and tenant had come to an end. It was submitted that setting aside of the sale deed by the decree passed by the Trial Court could never have the effect of reviving the status of the respondent No.1 as tenant and that therefore, the Executing Court could not have passed the impugned order.

9. On the question of maintainability of the present writ petition, it was submitted that the application at Exhibit-53 was filed by the respondent No.1 under section 47 of the CPC and the contentions sought to be raised on behalf of respondent No.1 with reference to Order XXI Rule 103 of the CPC were not sustainable in the facts and circumstances of the present case. It was submitted that the application at Exhibit-53 filed by the respondent No.1 could not be said to be an application under Order XXI Rule 97 of the CPC and that therefore, the whole basis of the contention regarding maintainability of the writ petition raised on behalf of the respondent No.1 was fallacious. On this basis, it was submitted that the impugned order deserved to be set aside.

10. On the other hand, Mr. V.V.Bhangde, learned counsel appearing for the respondent No.1, submitted that the writ petition itself was not maintainable. It was submitted that even if the title of the application at Exhibit-53 stated that it was filed under section 47 of the CPC, all such applications resisting execution of decree were under Order XXI of the CPC. It was submitted that since the respondent No.1 was a judgment debtor and not a stranger or third person seeking to obstruct the decree, the application at Exhibit-53 filed by the respondent No.1 was under Order XXI Rule 97 of the CPC. The words “any person” used in Order XXI Rule 97(1) of the CPC were emphasized by the learned counsel for the respondent No.1 to assert that the application was under the said provision. It was then submitted that as per settled law, decision on such application by the Executing Court was governed by the provisions under Order XXI Rules 97 to 103 of the CPC, which was a complete Code in itself. By placing emphasis on Order XXI Rule 103 of the CPC, it was submitted that the impugned order passed by the Executing Court in the present case had the same force as that of a decree and therefore, only an appeal against the said decree could have been filed, thereby demonstrating that the present writ petition was not maintainable. In support of the said contention, reliance was placed on judgments of the Hon’ble Supreme Court in the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, reported in (1997) 3 SCC 694 and Shreenath v. Rajesh, reported in (1998) 4 SCC 543. The learned counsel for the respondent No.1 stated that since the writ petition itself was not maintainable, no submissions were required to be made on the merits of the impugned order passed by the Executing Court.

11. Since the learned counsel for the respondent No.1 has emphatically claimed that this Court exercising writ jurisdiction ought not to go into the merits of the impugned order and that the writ petition deserves to be dismissed on the preliminary objection of maintainability, it is necessary to examine the said question at the outset.

12. In the present case, there is no doubt about the fact that the decree passed by the Trial Court in favour of the petitioner on 30/07/2012 has been confirmed up to the Hon’ble Supreme Court by dismissal of the special leave petition of the respondent No.1 by order dated 05/03/2019. The respondent No.1 filed the application at Exhibit-53 by relying upon the observation made by the Hon’ble Supreme Court in the above quoted order, specifically on the words “if the petitioner has any right as a tenant, she can always enforce those rights”. The Hon’ble Supreme Court has certainly not made any comment on the right claimed by the respondent No.1 as tenant in part of the suit property. It is this right, which the respondent No.1 sought to agitate by filing the application at Exhibit-53 before the Executing Court. A perusal of the impugned order passed by the Executing Court shows that the said right claimed by the respondent No.1 has been dealt with and adjudicated upon, while allowing the objection in the above quoted terms. The Executing Court has held that relief of actual physical possession can be granted to the petitioner only after the Competent Court i.e. Small Causes Court passes an appropriate order and it cannot be granted by the Executing Court. It has been held that only symbolic possession can be granted to the petitioner and not physical possession, which can be obtained by the petitioner from the Competent Court in view of preexisting tenancy rights of the respondent No.1. Thereafter, the Executing Court has directed issuance of possession warrant, which according to the said Court is only in respect of symbolic possession to the petitioner. The Executing Court has held that only symbolic possession can be granted, because it has been observed by the Hon’ble Supreme Court that the respondent No.1 can enforce her right as a tenant.

13. The question is whether the impugned order passed by the Executing Court can be said to be amenable to writ jurisdiction or it can be challenged only by way of mechanism of appeal provided under Order XXI Rule 103 of the CPC. In this context, the provisions of Order XXI Rules 97 to 103 are relevant. There cannot be any doubt about the fact that since any person under Order XXI Rule 97 can resist or obstruct execution of a decree, it would include a judgment debtor like the respondent No.1. Once this position is appreciated, it becomes clear that an application in the nature of the application at Exhibit-53 filed by the respondent No.1 in the present case, is governed by the procedure prescribed under Order XXI Rules 98 to 103 of the CPC. As per the Bombay Amendment, Sub-rule (2) of Order XXI Rule 98 of the CPC stands substituted and Rule 102 has been deleted. The last words in the substituted Sub-rule (2) of Order XXI Rule 98 of the CPC are “any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree”. Order XXI Rule 101 of the CPC pertains to questions that are to be determined, including all questions pertaining to right, title or interest in the property. After determining such questions, the Executing Court can pass an appropriate order under Order XXI Rule 98 of the CPC. Order XXI Rule 103 of the CPC specifically states that when an application has been adjudicated upon under Rule 98 or Rule 100, such an order shall have the same force as if it were a decree and it would be subject to the same conditions as to an appeal.

14. In the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (supra), the Hon’ble Supreme Court has extensively dealt with the entire scheme envisaged under the provisions of Order XXI Rules 97 to 103 of the CPC. It has been held that such a scheme is a complete Code and that both the decree holder as well as obstructionist can have their respective say in the matter to get proper adjudication before the Executing Court and that such adjudication is subject to the hierarchy of appeals. In the said judgment, reliance has been placed on earlier judgment of the Hon’ble Supreme Court in the case of Bhanwar Lal v. Satyanarayan, reported in (1995) 1 SCC 6, wherein it has been held as follows:

“5. The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21, Rules 98 to 102. A reading of order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.

15. In the case of Shreenath v. Rajesh (supra), the Hon’ble Supreme Court has held that the right of a tenant or any person claiming right on his own in the property in case he resists, his objection under Order XXI Rule 97 of the CPC has to be decided by the Executing Court itself. Thus, it becomes amply clear that the respondent No.1 as judgment debtor was entitled to resist execution and that such an application, including the application at Exhibit-53 in the present case, was to be adjudicated by the Executing Court under the scheme envisaged under Order XXI Rules 97 to 103 of the CPC. Accordingly, there does not appear to be much substance in the contention raised on behalf of the petitioner that since the application was filed by the respondent No.1 under section 47 of the CPC, it could not be said to be an application under Order XXI Rule 97 thereof. Section 47 of the CPC simply states that all questions arising between the parties to the suit in which decree has been passed relating to execution or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The respondent No.1 herein was only seeking to have her objection decided, which was necessarily required to be adjudicated as per the scheme provided under Order XXI Rules 97 to 103 of the CPC, which forms a complete Code in itself.

16. The next question that arises in this context is, as to whether the impugned order passed by the Executing Court can be said to be an adjudication of the objection specifically raised on behalf of respondent No.1. Perusal of the impugned order shows that the Executing Court has accepted the contention raised on behalf of respondent No.1, that upon setting aside of the sale deed by the Trial Court, her status as a tenant stood revived and that even the Hon’ble Supreme Court had recognized such a right. The Executing Court has accepted the contentions of the respondent No.1 and held that as per the decree passed in favour of the petitioner, only symbolic possession could be handed over to him, in view of preexisting tenancy right of respondent No.1. The possession warrant has been issued in this backdrop by the Executing Court. Thus, the Executing Court has indeed adjudicated upon the contentions raised by the respondent No.1 in application at Exhibit-53. Once this conclusion is reached, it becomes clear that by operation of Order XXI Rule 103 of the CPC, the impugned order passed by the Executing Court has the same force as a decree and an appeal would have to be filed to challenge the same.

17. In this context, judgment of the Hon’ble Supreme Court in the case of Sameer Singh v. Abdul Rab, reported in (2015) 1 SCC 379, is relevant. In the said case, the Executing Court had rejected application filed by an objector by holding that it had become functus officio and that therefore, the application was not maintainable. The aggrieved objector had filed a writ petition before the High Court, wherein a similar preliminary objection was raised on behalf of respondent No.1, that in view of Order XXI Rules 98 to 103 of the CPC, the writ petition was not maintainable. The said preliminary objection was upheld by a learned Single Judge of the High Court and the said order was challenged before the Hon’ble Supreme Court. While reversing the order of the learned Single Judge of the High Court, the Hon’ble Supreme Court held that since the Executing Court had not adjudicated upon the objection raised before it and had thrown out the same on the basis that the Executing Court was functus officio, the writ petition filed before the High Court was maintainable. After referring to the aforesaid judgment in the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (supra), the Hon’ble Supreme Court held that if there had been adjudication by the Executing Court, the writ petition could not have been maintained and that an appeal was the remedy, but since the Executing Court had failed to adjudicate upon the dispute raised by the objector, the High Court could certainly exercise writ jurisdiction.

18. The said judgment of the Hon’ble Supreme Court further emphasizes that a writ petition under Article 227 of the Constitution of India would be maintainable if there is absence of adjudication of objection by the Executing Court. As a consequence, when there is an adjudication of the objection obstructing the execution of the decree, as in the present case, an appeal would have to be filed in terms of the scheme provided under Order XXI Rules 97 to 103 of the CPC. As this Court has come to the conclusion that by the impugned order, the Executing Court indeed adjudicated the application at Exhibit- 53 filed by the respondent No.1, it has to be held on the basis of the aforesaid pos

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ition of law, that the present writ petition is not maintainable. 19. In a recent judgment in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Education Society, reported in (2019) 9 SCC 538, the Hon’ble Supreme Court has reiterated that where a specific remedy of appeal is provided under the CPC itself, as a matter of discipline and prudence, the High Court would refrain from exercising superintending jurisdiction under Article 227 of the Constitution of India. The relevant paragraph of the said judgment reads as follows: “13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 20. It is a different matter that the petitioner may claim to have an absolutely open and shut case in his favour in terms of the position of law laid down by the Hon’ble Supreme Court in the case of R. Kanthimathi v. Beatrice Xavier (supra) and judgment of this Court in the case of Radheshyam Ramkaran Choube v. A.S.Mogare, thr. LRs Dilip Mogare and others (supra), such a claim made on behalf of the petitioner would have to be decided in an appeal challenging the impugned order passed by the Executing Court, because by operation of Order XXI Rule 98(2) of the CPC (Bombay Amendment) and Order XXI Rule 103 thereof, the impugned order has the force of a decree. Therefore, this Court refrains from making any observation on the merits of the matter. 21. In view of the aforesaid conclusion reached by this Court that the writ petition challenging the impugned order passed by the Executing Court is not maintainable, the writ petition is dismissed. No order as to costs.
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