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Disputes in Relation to Delivery of Possession by Executing Court Air 1998 Sc 1754

Disputes in Relation to Delivery of Possession by Executing Court Air 1998 Sc 1754

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06/27/2012

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http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 1 of 7
PETITIONER:SILVERLINE FORUM PVT. LTD.Vs.RESPONDENT:RAJIV TRUST AND ANOTHERDATE OF JUDGMENT: 31/03/1998BENCH:K.T. THOMAS, S. RAJENDRA BABUACT:HEADNOTE:JUDGMENT:J U D G M E N TThomas, J.Special leave granted .A sub-tenant, who was not party to a decree foreviction, resisted execution of the decree and the courtordered an inquiry under Section 151 of the Code of CivilProcedure (’Code’ for short). The High Court of Calcuttaupheld that order and that is challenged in this appeal.The suit property is a flat in "Harrington Mansion"situated on an important road at Calcutta. It was in theownership of one Arun Kumar Jalan. He tenanted the premisesto Rajiv Trust (first respondent) on 15-05-1975, who subletthe building to a company M/s. Accounting and SecretarialService Private Limited (which will hereinafter he referredto as "the first sub-tenant"). Subsequently the first sub-tenant created another sub-tenancy under it in favour ofsecond respondent M/s. Captain Shipping Estate PrivateLimited.Ownership of the building changed from Arun Kumar jalanand it now vests with the Silverline Forum Private Limited,(the appellant herein) as per registered conveyance deeddated 24-1-1995. Appellant filed a suit for ejectment of thetenant against first respondent under the provisions of WestBengal premises Tenancy Act, 1956, (hereinafter referred toas the "W.B. Act") on two grounds. First is that the tenantrespondent had sublet the building without the consent ofthe landlord and second is that the tenant used it in such amanner as to impair its condition. A decree for ejectmentwas passed ex-parte on 12-12-1995. Before appellant set outwith execution proceedings second respondent- sub-tenantfiled a suit (O.S. No. 2997/95) against appellant and someothers for a declaration and consequential injunctionorders. Though initially second respondent got an interimorder injunction against ejectment it was subsequent vacatedon 15-12-1995, but that suit is still pending.In the meanwhile appellant moved for execution of thedecree of ejectment. On 20-3-1996, bailiff of the court wentto the premises for effecting delivery of possession, but hewas resisted by the representatives of the second respondentand he reported the matter to the court. When he was again
 
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directed by the Court to effect delivery of possession withpolice help, he was unable to dispossess second respondentas the execution court has stayed dispossession in themeantime. Second respondent filed Miscellaneous Case 556 of1996 before the execution court quoting order 21 Rule 101and Section 151 of the Code, raising a contention that thedecree was passed without making him a party and allegingthat the decree was obtained in collusion between appellantand first respondent Rajiv Trust. Execution court, however,held that second respondent being a third party resistorcannot avail himself of the remedy provided in Ordered aninquiry to be conducted under Section 151 of the Code intothe allegations made by the second respondent, as per itsorder dated 26-4-1976. both sides, appellant and secondrespondent, were aggrieved by that order and hence both ofthem challenged it in revision before the High Court.A learned Single judge of the Calcutta High Courtconcurred with the view of the execution court thatgrievances of the second respondent cannot be canalisedthrough Order 21 Rule 101 presumably because the decree-holder has not moved the application for police help toremove the resistance under order 21 Rule 97 of the Code.Nonetheless, learned Single Judge observed that theapplication of second respondent could be gone into by thecourt in accordance with the inherent powers of the court asrecognised in Section 51 of the Code. On the said view ofthe matter both revisions were dismissed by the order whichis under challenge now.Shri Siddhartha Shankar Ray, learned senior counsel whoargued for the contesting parties did not choose to defendthe view of the learned Single Judge of the High Courtregarding non-availability of the remedy under Order 21 Rule97 of the Code. According to the learned counsel, though hecould not agree with that reasoning of the High Court thereis no warrant for the stand of the decree-holder that therespondent had no legal right to assail the decree inexecution proceedings.Shri Kapil Sibal, learned senior counsel for theappellant - decree-holder, on the other hand contended thatsince second respondent has admitted that he is a sub-tenantunder the first sub-tenant he cannot even be heard that thedecree for ejectment is a nullity or a collusive decree. Hepointed out that even the first sub-tenant has neverassailed that decree and hence second respondent, who is asub-tenant under the first sub-tenant, has no competence toquestion the decree for ejectment.At the outset, we may observe that it is difficult toagree with the High Court that resistance or obstructionsmade by a third party to the decree of execution cannot begone into under Order 21 Rule 97 of the Code. Rules 97 to106 in Order 21 of the Code are subsumed under the caption"Resistance to delivery of possession to decree-holder orpurchaser". Those rules are intended to deal with every sortof resistance or obstructions offered by any person. Rule 97specifically provides that when the holder of a decree forpossession of immovable property is resisted or obstructedby- "any person" in obtaining possession of the propertysuch decree- holder has to make an application complainingof the resistance or obstruction. Sub-rule (2) makes itincumbent on the court to proceed to adjudicate upon suchcomplaint in accordance with the procedure laid down.It is true that Rule 99 of Order 21 is not available toany person until he is dispossessed of immovable property bythe decree-holder. Rule 101 stipulates that all questions"arising between the parties to a proceeding on an
 
http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 3 of 7
application under rule 97 or rule 99" shall be determined bythe executing court, if such questions are "relevant to theadjudication of the application". A third party to thedecree who offers resistance would thus fall within theambit of Rule 101 if an adjudication is warranted as aconsequence of the resistance or obstruction made by him tothe execution of the decree. No doubt if the resistance wasmade by a transferee pendente lite of the judgment debtor,the scope of the adjudication would be shrunk to the limitedquestion whether he is such transferee and on a finding inthe affirmative regarding that point the execution court hasto hold that he has no right to resist in view of the clearlanguage contained in Rule 102. Exclusion of such atransferee from raising further contentions is based on thesalutary principle adumbrated in Section 52 of the Transferof property Act.When a decree-holder complains of resistance to theexecution of a decree it is incumbent on the execution courtto adjudicate upon it. But while making adjudication, thecourt is obliged to determine only such question as may bearising between the parties to a proceeding on suchcomplaint and that such questions must be relevant to theadjudication of the complaint.The words "all questions arising between the parties toa proceeding on an application under Rule 97" would enveloponly such questions as would legally arise for determinationbetween those parties. In other words, the court is notobliged to determine a question merely because the resistorraised it. The questions which executing court is obliged todetermine under rule 101, must possess two adjuncts. Firstis that such questions should have legally arisen betweenthe parties, and the second is, such questions must berelevant for consideration and determination between theparties, e.g. if the obstructor admits that he is atransferee pendente lite it is not necessary to determine aquestion raised by him that he was unaware of the litigationwhen he purchased the property. similarly, a third party,who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the questionregarding its validity should be decided during executionproceedings. Hence, it is necessary that the questionsraised by the resistor or the obstructor must legally arisebetween him and the decree-holder. in the adjudicationprocess envisaged in order 21 Rule 97(2) of the Code,execution court can decide whether the question raised by aresistor or obstructor legally arises between the parties.An answer to the said question also would be the result ofthe adjudication contemplated in the sub-section.In the above context we may refer to Order 21 Rule35(1) which reads thus:"Where a decree is for the deliveryof any immovable property,possession thereof shall bedelivered to the party to whom ithas been adjudged, or too suchperson as he may appoint to receivedelivery on his behalf, and, ifnecessary, by removing any personbound by the decree who refuses tovacate the property."It is clear that executing court can decide whether theresistor or obstructor is a person bound by the decree andhe refused to vacate the property. That question alsosquarely falls within the adjudicatory process contemplatedin Order 21 Rule 97(2) of the Code. The adjudication

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