SHESH KUMAR PRADHAN SHESHDEO Vs. KESHBO S/O NARAYAN AGHARIYA
LAWS(MPH)-1980-1-11
HIGH COURT OF MADHYA PRADESH
Decided on January 28,1980

SHESH KUMAR PRADHAN SHESHDEO Appellant
VERSUS
KESHBO, NARAYAN AGHARIYA Respondents


Referred Judgements :-

CHERTSEY URBAN DISTRICT COUNCIL V. MIXNAM'S PROPERTIES LTD. [REFERRED TO]
MOTI RAM VS. SURAJ BHAN [REFERRED TO]
KESHAVLAL JETHALAL SHAH VS. MOHANLAL BHAGWANDAS [REFERRED TO]
SHIV KIRPAL SINGH VS. V V GIRI [REFERRED TO]



Cited Judgements :-

BHANWARLAL JAIN VS. BHERULAL [LAWS(MPH)-1982-1-2] [REFERRED TO]
DATTATRAY VS. MANGAL [LAWS(MPH)-1982-11-5] [REFERRED TO]
LAKHMICHAND VS. MITTHU [LAWS(MPH)-1983-7-5] [REFERRED TO]
DEB PROKASH SET VS. HARIPROSAD MALLICK [LAWS(CAL)-1983-9-15] [REFERRED TO]
JASWANT RAO VS. KAMLABAI [LAWS(MPH)-1990-6-10] [REFERRED TO]
SAMPATRAJ PAGARIA VS. DELTA INTERNATIONAL LTD [LAWS(CAL)-1991-3-8] [REFERRED TO]
PARSHOTAM DASS VS. STATE OF HARYANA [LAWS(P&H)-2003-4-12] [REFERRED TO]
LAXMINARAYAN VS. SHIVLAL GUJAR AND OTHERS [LAWS(MPH)-2002-10-121] [REFERRED TO]


JUDGEMENT

G.P.Singh, J. - (1.)The facts giving rise to this revision are that the applicant obtained a money decree in Civil Suit No. 55-B of 1968 against the non-applicants Nos. 6 and 7 and, in execution of the said decree, purchased in the auction sale Survey Nos. 577 and 145. The non-applicants Nos. 1 to 5 made an application under Order 21, Rule 100, Civil P. C., that they were prior purchasers of the said lands for consideration and that they were entitled to be placed in possession. The application was dismissed by the Executing Court on 25th Jan. 1977 before the commencement of the Civil P. C. (Amendment) Act, 1976 which came into force on 1st Feb. 1977. The non-applicants Nos. 1 to 5 then brought a suit under Order 21, Rule 103 of the Code as it stood before the amendment for establishing their right to possession. This suit was filed on 10th March 1977. The applicant raised an objection to the maintainability of the suit in the light of the amendments introduced in the Code by the amending Act 1976. The objection was tried as a preliminary issue and was decided against the applicant on 17th Nov. 1978 by the Civil Judge, Class II, Sarangarh. It is against this order that this revision was filed. The revision came up for hearing before a learned single Judge (J.S. Verma, J.) who, having regard to the general importance of the question involved, directed that the revision be referred to a larger Bench. This is how the revision has come up before us.
(2.)To appreciate the question raised in this revision, it is first necessary to refer to the relevant provisions of the Code as it stood before its amendment by the amending Act, 1976. The material provisions are Rules 100 to 103 of Order 21, which read as follows:
"100. Dispossession by decree-holder or purchaser, -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Bona fide claimant to be restored to possession.--Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

102. Rules not applicable to transferee lite pendente.--Nothing in Rule 99 to 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

103. Orders conclusive subject to regular suit. -- Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive." The relevant new rules after the amendment of the Code are Rule 99 to 103 of Order 21 and they are as under:
"99. Dispossession by decree-holder or purchaser. -- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. Order to be passed upon application complaining of dispossession. --Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination, - (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined. --All questions (including questions relating to right, title or 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 Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 102. Rules not applicable to transferee pendente lite. -- Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation. -- In this rule, "transfer" includes a transfer by operation of law. 103. Orders to be treated as decrees. -- Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."
(3.)A perusal of the old and the new rules would go to show that under the old rules there was no specific power conferred on the Executing Court to finally decide the questions of right, title or interest in the property in dispute as is now conferred by the new Rule 101. All that the Court was directed to determine under the old Rule 101 was whether the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor and in case it was found that he was in bona fide possession on his own account, the Court was required to direct that he be put into possession. Against an order made under the old Rule 101 whether the claim was allowed or dismissed by the Executing Court no party had any right of appeal. The party aggrieved, however, had a right to file a suit conferred on him by the old Rule 103 and subject to the result of the suit the order passed under the old Rule 101 was conclusive. The scheme of the new rules as disclosed by the new Rule 101 and 103 is that the Executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the Executing Court has the force and effect and is subject to the same condition as to appeal as if it were a decree and a suit is not maintainable to challenge the order.


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