- (1.) APPELLANT (obstructionist No. 8) claims to be in possession through judgment-debtors. Respondents (original plaintiffs) have obtained a decree against the judgment-debtors after a contest in 1980. The judgement-debtors impugned the decree for possession by preferring an appeal. The same was withdrawn in 1989. Based on the withdrawal, a contention is raised that the decree is collusive. The submission cannot be countenanced as the decree was passed after contest and the appeal was withdrawn after a lapse of 9 years after the filing of the same.
(2.) A decree was passed against the judgment-debtors in respect of the open plot of land. The judgment-debtors have inducted the appellant (obstructionist No. 8) on a structure put up by them. All that is claimed by the appellant (obstructionist No. 8) is that it is in its possession since 1960. Since the property in question belongs to the Bombay Port Trust, provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, do not apply. Hence, though no decree is passed against the appellant (obstructionist No. 8), no independent right can be claimed by it.
(3.) IT is next contended that under the provisions of Rules 97 and 101 of Order XXI, Civil Procedure Code, the dispute raised by the appellant (obstructionist No. 8) ought to have been adjudicated upon. In other words, issues ought to have been framed and evidence ought to have been permitted to be led. Proceedings should have been tried as a suit. In our view, the said contention cannot be accepted in view of the decision of the Supreme Court in the case of (Silverline Forum Pvt. Ltd. v. Rajiv Trust and another), reported in 1998 (3) Supreme Court Cases 723. In the said decision, it has, inter alia, been held as under :-It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if such questions are "relevant to the adjudicated of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendent lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in section 52 of the Transfer of Property Act. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such question must be relevant to the adjudication of the complaint. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resister raised it. The question which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such question must be relevant for consideration and determination between the parties, e. g. , if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when 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 question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97 (2) of the Code, the execution Court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. It is clear that the executing Court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resister. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. ";