- (1.) THE petitioners whose application under Order 21, Rule 97, Civil Procedure Code was rejected have filed the present civil revision petition.
(2.) ACCORDING to the averments in the petition filed in the Court below, the shops subject matter of the civil revision petition at 28th Cross Street, Indira Nagar, Adyar, Chennai-20, were allotted to the petitioner Nos.1 and 2 respectively. They had put up their own construction, obtained electricity connection and had been carrying on the business. The allotment was made to the first petitioner to put up a mechanical shed and to the second petitioner to put up a wet grinder. The first respondent filed W.P.No.10700 of 1989 where one Ganapathy Automobiles, one V.K.G. Durai and one Meena Auto Works were made the sixth, seventh and eighth respondents and the prayer was for a mandamus to abate the nuisance caused by them. The writ petition was ordered by this Court on 19.9.1998 directing the said respondents to apply for license fee from the Corporation to carry on their workshop and other business and obtain orders from the Corporation. In the order passed in the writ petition it was stated that the respondents had paid the license fee. Therefore, four weeks time was granted to pass orders thereon. The learned Judge left it open to the first respondent therein namely the Commissioner, Corporation of Madras, to consider the question of nuisance. On 23.9.1994, the first petitioner obtained a decree in O.S.No.2711 of 1993 for permanent injunction restraining the Chairman, Tamil Nadu Slum Clearance Board, who is the second respondent herein from interfering with her possession. Subsequently, they came to know that the first respondent had obtained decree on 28.2.1994 in O.S.No.7712 of 1990. They also learnt that this suit was filed by the first respondent against the second respondent for a mandatory injunction to remove the automobile workshop tinkering, welding and painting in the suit properties. The petitioners were not parties to the suit. The first respondent filed E.P.No.2043 of 1996 to execute the decree obtained by him on 28.2.1994 in O.S.No.7712 of 1990. After getting details of the suit the petitioners filed O.S.No.1404 of 1998 for cancelling the decree and also for an application to stay the operation of the decree. The petitioners also filed an application under Order 21, Rule 97, Civil Procedure Code in the Execution Petition filed by the first respondent to adjudicate upon her right. This was rejected and hence the above civil revision petition was filed. The Registry posted the civil revision petition for maintainability and at this stage itself notice was ordered and the respondents entered appearance. The civil revision petition itself was argued by both the parties extensively. Mr.C. Rajagopalan, learned counsel for the petitioner made the following submission. The properties had been allotted to the petitioners for the purpose specified above as a rehabilitation measure and they have also been carrying on the business for the last 12 or 13 years and therefore, their possession cannot be disturbed except in accordance with law. The decree which is sought to be executed for mandatory injunction will result in their dispossession and therefore, though they are strangers to the suit their application under Order 21, Rule 97, Civil Procedure Code must be heard. Though in the written statement filed by the second respondent in the suit O.S.No.1404 of 1998 referred to above it is stated that the allotment has been cancelled, he is instructed by the parties to state that they have challenged the cancellation by way of appeal to the Government and no orders have been passed thereupon. In any event the fact remains that they are in possession of the properties in question. He relied on the following decisions to support his case that the petitioners are entitled to file an application under Order 21, Rule 97, Civil Procedure Code and to have their rights adjudicated upon. (1) Bhanwar Lal v. Satyanarain and another, AIR 1995 SC 358; (2) Shreenath and another v. Rajesh and others, AIR 1998 SC 1827; (3) Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 SC 1754; (4) Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, 1997 (2) LW 266 Mr. Sitharanjan Das, learned counsel for the first respondent on the other hand submitted that the petitioners now before this Court are not in actual possession and that they have parted with their possession. A letter was produced by the learned counsel issued by the Assistant Commissioner, Corporation of Madras stating that no license application had been received from Meena Auto Works. He also relied on the counter filed by the second respondent herein in O.S.No.1404 of 1998, which has already been referred to above. He produced in his typed-set of papers certain proceedings before the Metropolitan Magistrate's Court in respect of the Ganapathy Auto Works, Meena Auto Works etc., which according to him would show that these petitioners are not actually in possession of the shop numbers earlier referred to. He also submitted that in any event Order 21, Rule 97, Civil Procedure Code would not apply. Order 21, Rule 97, Civil Procedure Code deals with resistance or obstruction to possession of immovable property. Actually, as per the rule the decree holder when faced with resistance or obstruction may make an application complaining of such resistance and the Court shall adjudicate upon the application. According to the learned counsel for the respondent Rule 97, deals with the light of the decree holder to file an application, in cases where the decree is for possession of immovable properties. In this case, the petitioner is neither a decree holder is the decree one for recovery of possession and therefore, the petition according to him should be rejected and was rightly rejected.
(3.) NO doubt, the decree in O.S.NO.7712 of 1990 is for a mandatory injunction to remove the welding and the tinkering materials from the properties. But, when the case of the petitioners is that their possession in the disputed property is itself only for carrying on the tinkering, welding and other mechanical work, compliance with the decree for mandatory injunction to remove all the materials would in effect erase their possession. Once everything is erased to the ground or thrown out, it amounts to removing their possession or presence from the disputed property. As regards the point raised by the learned counsel for the respondent that actually it is not the petitioners who are in the suit property but they had sublet it to third persons. This is strongly denied. According to the learned counsel for the petitioner, it is the 1st petitioner's son Kuppusamy who is carrying on the mechanical shop in the place allotted to her and that it is not correct to state that it has been sublet to anybody. As regards the objection raised by the learned counsel for the respondent as to whether the petitioner not being a decree holder is entitled to file an application under Order 21, Rule 97, Civil Procedure Code, the decision reported in Shreenath and another v. Rajesh and others, AIR 1998 SC 1827, provides the answer. In that case the respondent before the Supreme Court filed a suit for redemption against the second respondent and it was decreed. The decree directed the delivery of the vacant possession of the mortgaged property. When the decree holder moved an application for delivery of vacant possession the appellants before the Supreme Court filed an application under Order 21, Rule 97, Civil Procedure Code resisting that they cannot be dispossessed in terms of the decree as they were not parties to the said suit nor did they derive any right and title through the judgment-debtor. Their application was dismissed. The High Court held that the Executing Court has no jurisdiction to start an enquiry suo moto or at the instance of a third party other than the decree-holder/auction purchaser under Order 21, Rule 97, Civil Procedure Code. Against this, the third parties to the suit who filed an application under Order 21, Rule 97 approached the Supreme Court. The Supreme Court, dealt in detain with the various provisions of Order 21 and came to the conclusion that both under the old law and the present law the tenant or any person claiming a right on his own of the property in respect of which he resists dispossession has the right to have his objection under Order 21, Rule 97, Civil Procedure Code decided by the Executing Court itself. Para 15 of the said decision is extracted hereunder:@BT-1 = "Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the Executing Court. But this will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21, Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree- holder. For all the aforesaid reasons, we do not find the Full Bench in Smt.Usha Jain (supra) correctly decided the law." Since various decisions of the Supreme Court on a consideration of the entire scheme of the Code have held that what is sought to be achieved is an end to the protraction of the execution and shortening of litigation, the Supreme Court set aside the rejection of the application of the third party under Order 21, Rule 97, Civil Procedure Code and directed the Executing Court to consider and dispose of the application of the third party under Order 21, Rule 97, Civil Procedure Code after giving opportunity to the parties in accordance with law. ;