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SMT. SOMWATI versus HASTA NIRMIT KAGAJ UDYOG SAHAKARI SAMITI LTD & OTHERS

High Court of Judicature at Allahabad

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Smt. Somwati v. Hasta Nirmit Kagaj Udyog Sahakari Samiti Ltd & Others - CIVIL REVISION No. 32 of 2005 [2005] RD-AH 267 (27 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 40

Civil Revision No. 32 of 2005

Smt. Somwati ............................................................ .Revisionist/plaintiff

 

Versus

Hasta Nirmit Kagaj Udyog Sahakari Samiti

Limited, Godha, Wazirganj, District Badaun

Through alleged Manager Gopal Singh Kushwaha

and others .....................................................................    Respondents.

And

Civil Revision No. 33 of 2005

Smt. Somwati ...................................................          Revision/plaintiff

                                   Versus

Hasta Nirmit Kagaj Udyog Sahakari Samiti

Limited, Godha, Wazirganj, District Badaun

Through alleged Manager Gopal Singh Kushwaha

and others .....................................................................    Respondents.

Hon. S.N.Srivastava,J.

The applicant, Smt. Somwati, has preferred two revision applications one against the impugned judgment and order dated 15.1.2005/20.1.2005 in Application filed under section 47 C.P.C. filed in Misc. Case no. 23 of 2004 which stems from O.S. No. 47 of 1981 and the other against the judgment and order 15.1.2005/20.1.2005 passed in application under Order 11 Rules 12 and 14 of the C.P.C. filed in Misc. Case no. 23 of 2004 arising out of O.S. No. 47 of 1981 attended with the prayer to call on the respondent to produce evidence about Gopal Singh Kushwaha being authorised as Manager of the respondent -Kagaz Udyog.

The dispute in the matter before this Court pertains to property owned by plaintiff namely, Hast Nirmit Kagaz Udyog Sahkari Samiti Limited Godha Wazirganj District Budaun. The plaintiff instituted suit no. 47 of 1981 for the relief of dispossession of the respondents and also for mandatory injunction to remove construction situated on the land in question. The suit property is displayed in the plaint map and is marked by signary ABCDEFGHIOJKMA. The suit aforestated culminated in judgment and decree rendered on 10.8.1990. From a perusal of the decree (Annexure 2 to the writ petition), it would transpire that the decree was passed in relation to land marked by Ext. BCDEGHIO and PB against defendants 1/1 to 1/3 and defendant no.3. In the wake of decree, execution case no. 1 of 2004 came to be filed by the decree holder and it would appear that the same was instituted for possession in relation to entire land involved in the plaint i.e. ABCDIKA. An objection was filed on behalf of applicant under section 47 C.P.C. on the ground that she was not a party to the proceeding in the suit and as such the decree cannot be executed against her. It was further prayed that the decree-dated 9.8.90/20.8.90 was not sustainable in law and cannot be enforced in implementation as against her. On the other hand, the decree holder preferred objection to that application. In the ultimate analysis, the application of the applicant climaxed with dismissal vide impugned judgment and order and it is in this backdrop that the present revisions have been preferred.  

The learned counsel for the applicant canvassed that the applicant was not a party to the suit and therefore, the decree rendered is a nullity and cannot be executed against her. It was further canvassed that albeit the fact that the decree was passed in relation to a part of the land involved in the suit, the  execution was wrongly sought against the entire land and as such execution was liable to be dismissed. The learned counsel further submitted that the application of the applicant, which was initially preferred to be under Order 11, Rules 12 and 14 of the C.P.C., was, in effect, intended to be under Order 21, Rule 97 of the C.P.C. and the same may be treated as such and further that it was clearly maintainable and rejection of the application by execution court is vitiated in law.

Having considered the materials on record and also the arguments advanced across the bar, I veer around the view that the Execution Court cannot transcend the bounds of decree and is under a duty to confine itself to the periphery of the decree. In case the decree has been passed in relation to a part of the land, the executing court cannot exceed its periphery even if the execution application has been filed for execution involving the entire property not covered by the decree. At this stage, the learned counsel for the applicant expressed apprehension that execution is going to take place for the land which is not covered by the decree. The apprehension appears to be ill-founded inasmuch as there is no indicium on record to strengthen the apprehension of the applicant that the execution court may involve the land also which is not covered by the decree while executing decree when the provision germane to the execution proceeding leaves no lee-way for the court to over-reach it and it is under a duty to act within the bounds prescribed in law.

The next argument advanced across the bar is that application initially filed by the applicant was maintainable under Order 21, Rules 97 and 98 C.P.C. and the court below erroneously rejected the same. Even for the sake of argument, it be assumed that application under Order 21, Rules 97 and 98 could be maintained in a situation like the present case, the question that begs considered is whether it could be maintained by the applicant. Provisions of Order 21, Rule 97 C.P.C envisage that where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. Sub-rule (2) envisages that where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Sub rule (2) of rule 98 envisages that where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the application is still resisted or obstructed in obtaining possession, the court may also at the instance of the applicant, order the judgment debtor or any person acting on his instigation or on his behalf to be detained in the civil prison for a term which may extend to thirty days. It would thus transpire from a punctilious reading of the aforestated provisions that obstructions or resistance was permissible for a person in lawful possession of the property in question and/or who claims right over the land in dispute on the basis of derivative title or sets up his own right, title or interest etc. The Apex Court in Bhanwar Lal v. Satyanarain  elaborating the scope of Order XXI, Rules 97 to 102 held that a readingof Order XXI, rule 97 C.P.C.clearly envisages that any person even including the judgment debtor irrespective whether he claims derivative title from the judgment debtor or sets up his own right, title or interest de hors 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 right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Since each occasion of obstruction or resistance furnishes cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person. When a decree holder has already filed an application under Order XXI, Rule 35 (2) C.P.C. for delivery of possession, after obstruction being made, it would be treated as one under Order XXI, Rule 97 C.P.C. No further application is needed. No question of subsequent application being barred by limitation or res judicata arises." It follows from scanning the above and other precedents on the point that adjudication of rights of a person resisting execution of the decree on the basis of possession could be determined only once in case the person proves his lawful possession on the basis of any title. In the instant case, from a perusal of the application of the application it is explicit in paragraph 3 that the land in dispute belonged to Gaon Sabha and the applicant claimed her right by adverse possession. It leaves no manner of doubt that in case a person claims possession of Gaon Sabha property otherwise than in accordance with law, no rights by adverse possession could accrue to him. It is established from a perusal of the record in entirety and from the own objection of the applicant that she has no right over the land in dispute inasmuch as the property being Gaon Sabha property and she having claimed her right by adverse possession otherwise than in accordance with law, no right has accrued to her so as to entitle her to resist execution of decree on the premises that she was not a party to the proceeding in suit. I have also scanned the entire record and it is quite clear to me that the trial court rendered the decree having reckoned with each and every aspect and as such there is no ground to find fault with the decree. It would also transpire from the record that the Gaon Sabha allotted land in question to the Opp. Party in accordance with law by passing a resolution-dated 12.9.1962.

In view of what has been discussed above, it leaves no manner of doubt that the application filed by the applicant under section 47 C.P.C. was rightly rejected also for the reason that the applicant has not been able to carve out any plausible ground to sustain the plea that decree passed was a nullity.

The next argument canvassed by the learned counsel for the applicant that execution application was signed by Gopal Singh while decree holder is Hast Nirmit Kagaj Udyog Sahkari Samiti Limited through its Manager Gopal Singh Kushwaha and by this reckoning, the execution was liable to be dismissed. This argument does not commend to me for acceptance inasmuch as it is quite evident from the record that Gopal Singh signed the execution application in his capacity as Manager of the Kagaz Udyog and the court below rightly rejected the application of the applicant, which is subject matter of impugnment in revision no. 33 of 2005.

The learned counsel lastly submitted that allotment made by Gaon Sabha in the year 1962 was not in accordance with law. The Court put a poser to the learned counsel whether the applicant had filed any objection to the allotment made by the Gaon Sabha as mandated in section 198 of the U.P.Z.A. & L.R. Act, he drew a blank. The question of allotment cannot be ripped open at this belated stage after an efflux of more than 43 years and in this connection, it may be quipped that the applicant or any other aggrieved person had enough forum to agitate the grievance about validity of allotment and it is not open for her now to raise this argument.

No other question of substance has been pressed into service.

As a result of foregoing discussion, the revisions preferred by the applicant fail and are dismissed accordingly.

M.H.

Jan...27,2005.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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