Thomas Danniel @ Bose v. J. Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **Ex.SA.No.8 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 17-02-2020 IN AS 6/2017 OF DISTRICT COURT, THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 10-01-2017 IN E.A.NO.132/11 IN E.P.NO.55/2010 IN OS 56/2001 OF SUB COURT,KATTAPPANA** ## **APPELLANT/APPELLANT/CLAIM PETITIONER:** **THOMAS DANNIEL @ BOSE, AGED 46 YEARS, S/O. CHANDY DANNIEL, RESIDING AT ALUMOOTTIL, ATTAPPALLAM KARA, PEERUMADU TALUK, KUMILY VILLAGE, PIN 685 509** **BY ADV. SRI.M.NARENDRA KUMAR** ## **RESPONDENTS/RESPONDENTS/1ST RESPONDENT:** **J.RAJAN, AGED 43 YEARS, S/O. JAKKAYYAPPAN, RESIDING AT MELE GUDALLOOR VILLAGE, UTHAMAPALAYAM TALUK, TAMIL NADU, PIN 625 618** **R1 BY ADV. K.N.RADHAKRISHNAN(THIRUVALLA) ADV.SRI.SREEKUMAR G.CHELLUR** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Ex.SA.No.8 OF 2020 2** ## **CR** ## **JUDGMENT** A simple decree for partition and separation was sought to be executed against a stranger/3[rd] person for getting possession of Government land having an extent of 1.65 Acres. The State Government is not in the party array of the suit for partition. There is no substantial prayer in the suit for declaration of right, title or interest over the property in favour of the plaintiff, but a mere suit for partition alone was filed incorporating the Government land having an extent of 1.65 Acres, alleging that he is in possession of the said Government land. When it was sought to be executed, the appellant herein, a third party, came up with a claim petition disputing the right, title and interest of the plaintiff over the Government land and alleged that he is in possession and enjoyment of the said property. The trial court dismissed the claim petition treating the same under Rule 97, 98 and 101 of ## **Ex.SA.No.8 OF 2020 3** Order 21 C.P.C. It was confirmed in appeal, against which the obstructor/claim petitioner came up with this appeal. 2. The following questions came up for consideration: **==> picture [325 x 13] intentionally omitted <==** execute a simple decree for partition and separation against a third person for getting possession ? **==> picture [325 x 13] intentionally omitted <==** remedy under Rule 97 of Order 21 C.P.C. in a simple decree for partition and separation ? **==> picture [325 x 13] intentionally omitted <==** position, if the decree is not a simple decree for partition and separation, but also for possession? **==> picture [325 x 12] intentionally omitted <==** claim petition either under Rule 97 or under 101 of Order 21 C.P.C. by a third person/obstructor/resistor ? **==> picture [325 x 11] intentionally omitted <==** ## **Ex.SA.No.8 OF 2020 4** can maintain an application under Order 21 Rule 97 C.P.C., if not, what is the remedy available to him and what would be the effect of bar under Rule 101 after the amendment of Rule 103 of Order 21 C.P.C. ? 3. Both the courts below committed a very serious mistake without addressing the scope and ambit of Rule 97, 98 and 101 of Order 21 C.P.C. The trial court considered the application under Rule 97, 98 and 101 of Order 21 C.P.C. That itself amounts to a wrong perception. The very same mistake was also committed by the first appellate court without referring to the relevant provisions under which the application would fall. Both the courts below proceeded with the matter under the impression that it is a claim petition filed by a third party-claimant. 4. An application under Order 21 Rule 97 C.P.C. can be maintained only by a 'holder of a decree for possession of immovable property' or by an 'auction purchaser of immovable property in court sale'. An obstructor/resistor or a third person cannot maintain ## **Ex.SA.No.8 OF 2020 5** an application under that rule. The scheme of O.21 C.P.C. and the various rules thereunder are instrumentalities in the hands of a decree holder for execution of a decree, barring the provision made thereunder to protect and adjudicate the interests of a third person, who is not bound by the decree, such as Rule 58 and right to get any claim adjudicated under that rule. Necessarily, it should be understood that R.97, like other provisions under O.21 C.P.C., is one of the modes of execution available to a decree holder to execute a decree for possession. If it is not utilized or exhausted in proper cases at proper time, the resultant effect would be the dismissal of the execution proceedings. As such, it is incumbent on the decree holder to apply under R.97 of O.21 C.P.C., when there is obstruction or resistance offered by any person. Failure to exhaust the said remedy would result in dismissal of execution proceedings. When such an application is moved, then only the obstructor or the resistor will get the right to defend the application raising their objection. Thereon, the executing Court is bound to proceed under R.97 (2) of ## **Ex.SA.No.8 OF 2020 6** O.21 C.P.C. to adjudicate the issue. It is well within the jurisdiction of execution Court to adjudicate the sustainability of objection raised by the obstructor/resistor. But in the case of Rule 99, a third party or a stranger can maintain an application under that rule, when he was dispossessed from the property by a holder of a decree for possession of immovable property or where such property has been sold in execution of a decree, by the purchaser thereof. In both the cases, the execution court shall proceed to adjudicate upon the application in accordance with the preceding rules under Order 21 C.P.C. i.e. Rule 97(2), 98, 99(2), 100 to 106. The orders passed under Rules 98 and 100 on any application under Rule 97 and Rule 99 would acquire the character of a deemed decree as per the amended provision - Rule 103 of Order 21 C.P.C.. Both the provisions are incorporated under Order 21 C.P.C. with the aim to avoid institution of subsequent suit. A strict reading of Rule 97 and Rule 99 of Order 21 C.P.C. would show that both these rules would come into play only in respect of decrees (1) for possession of immovable property and (2) for possession of ## **Ex.SA.No.8 OF 2020 7** immovable property in court sale. 5. Rule 97 would come into play, when a holder of a decree for possession of immovable property or a purchaser of any immovable property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property. Likewise, Rule 99 would come into play with respect to a decree for possession of immovable property or any immovable property which was sold in execution of a decree, when he was dispossessed by the decree holder or the auction purchaser in court sale. In order to attract Rule 97 or Rule 99, the decree must be one for possession of immovable property or the property should be a one sold in execution of a decree. Otherwise, neither Rule 97 nor Rule 99 will have any application. Rule 97 is the remedy available to a decree holder/auction purchaser in court sale, for removal of resistance or obstruction in effecting delivery of possession of immovable property based on a decree for possession or under a court sale based on a decree. Rule 98 enables the execution court to adjudicate the questions referred to in Rule 101. The very same provision was also made ## **Ex.SA.No.8 OF 2020 8** under Rule 100 enabling the execution court to determine the question referred to in Rule 101. The questions included in Rule 101 are the issues pertaining to the right, title or interest in the property arising between the parties to an application under Rule 97 or Rule 99 or their representatives. Necessarily, it must be understood that all questions relating to right, title or interest in the property against whom an application under Rule 97 or 99 is maintained, can be adjudicated and determined by the execution court and not by a separate suit. Such determination or adjudication would be a deemed decree by virtue of the amended provision - Rule 103 of Order 21 C.P.C. In fact, a dispute pertaining to an immovable property regarding right, title or interest with a stranger can be determined and decided under Rule 97 and Rule 99, but an application under Rule 97 can be maintained only by a holder of a decree for possession of immovable property or a purchaser of immovable property sold in execution of a decree. But Rule 99 of Order 21 C.P.C. is not a mode of execution and as such a claim petition can be maintained under that rule as ## **Ex.SA.No.8 OF 2020 9** in the case of Rule 58 of Order 21 C.P.C.. On the other hand, Rule 97 is really a mode of execution and as such no claim petition can be maintained under that rule by a stranger or a third person. Under Rule 58 of Order 21 CPC, a claim petition can be maintained by a person, who is not a party to the suit or the decree sought to be executed. But there is no such provision for maintaining a claim petition by a third person, when a decree is sought to be executed by delivery of immovable property. In fact, a right to maintain an application under Rule 97 of Order 21 CPC is the domain of two sets of persons, viz.(1) a holder of a decree for possession and (2) a purchaser of a property in court sale in execution of a decree. It must be understood that a remedy to an obstructor or a third person by way of a suit is not barred even after the amendment to Rule 103 of Order 21 C.P.C. But at the same time, in answer to an application under Rule 97 of Order 21 C.P.C. at the instance of the abovesaid persons, the obstructor or the resistor will have the right to raise their contention by way of defence, as if it were a separate suit against them. When it was ## **Ex.SA.No.8 OF 2020 10** raised and adjudicated, they would stand bound by the adjudication debarring the remedy by way of a separate suit. ## 6. In **Brahmdeo Chaudhary v. Rishikesh Prasad** ## **Jaiswal [( 1997) 3 SCC 694: 1997 AIR SCW 685]** , the following observations were made by the Apex Court: “ It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21, Rule 97, C.P.C. could have been offered by any person. The words 'any person' as contemplated by Order 21, Rule 97, sub-rule(1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree . .......... Consequently it must be held that respondent 1['] s application dated 6.5.1991 though seeking only re-issuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21 Rule 97 sub-rule(1) C.P.C. Once that happened the procedure laid down by sub- ## **Ex.SA.No.8 OF 2020 11** rule(2) thereof, had to be followed by the executing Court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order.” 7. In **Noorduddin v. K.L.Anand ( LAWS (SC 1994** **1018 :1994 AIR SCW 5093)** a different view was taken as to the right to file an application under Order 21 Rule 97 C.P.C. by a third party obstructor in paragraph 10 of the judgment as follows: “ The appellant's possession pending adjudication, needs to be protected by interim orders. Unfortunately, the courts below had not adverted to these crucial aspects of the matter. When the appellant claimed independent right, title and interest and resisted the execution, the decreeholder or **the appellant** should make an application under Rule 97(1) and the court, in that event, is enjoined to adjudicate the claim and record a finding, allowing or rejecting the claim.” (emphasis supplied) 8. But, later on, a three Judge Bench of the Apex ## **Ex.SA.No.8 OF 2020 12** Court **in Bhanwar Lal v. Satyanarain [(1995) 1 SCC 6 : 1994 AIR SCW 4549]** had the occasion to consider the expression 'any person' incorporated under Order 21 Rule 97 C.P.C. and the jurisdiction to deal with an application under that rule by the execution court and laid down the legal position that: “ A reading of Order 21. Rule 97 CPC clearly envisages that “any person” even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right,title or interest de hors the judgment-debtor and he resists execution of decree, then the Court in addition to the power under Rule 35(3) has been empowered to conduct any enquiry whether the obstruction by that person in obtaining possession of immovable - property was legal or not. The decree holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon ” could be done. (emphasis supplied) 9. Subsequently, another larger Bench (three Judge Bench) of the Apex Court in **Silverline Forum Pvt. Ltd. v. Rajiv Trust and another ( AIR 1998 SC 1754)** had laid ## **Ex.SA.No.8 OF 2020 13** down the legal position that it is the decree holder who has to make an application complaining of the resistance or obstruction and also settled the legal position that it is well within the jurisdiction of the execution Court under Rule 97(2) read with Rule 101 of Order 21 C.P.C. to adjudicate the dispute raised by the obstructor/resistor, in the following lines: “ Resistance or obstruction made even by a third party to the execution of decree can be gone into under O.21 R.97. Rules 97 to 106 in O.21 are subsumed under the caption “resistance to delivery of possession to decree holder or purchaser”. Those rules are intended to deal with every sort of resistance or obstructions offered by any person. R.97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by “any person” in obtaining possession of the property **- such decree holder has to make an application** complaining of the resistance or obstruction. Sub-rule(2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the **Ex.SA.No.8 OF 2020 14** procedure laid down.” (emphasis supplied) 10. In what stage the obstructor/resistor will get a right of adjudication under Rule 97 of Order 21 is also well explicit from the further observations made by the Apex Court in paragraph 10 of the said judgment, which is extracted below: “ Rule 101 stipulates that all questions “arising between the parties to a proceeding on an application under R.97 or R.99” shall be determined by the executing Court. If such questions are “ relevant to the adjudication of the application”. A third party to the decree who offers resistance would thus fall within the ambit of R.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 pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the ## **Ex.SA.No.8 OF 2020 15** 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 R.102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in S.52 of the Transfer of Property Act.” (emphasis supplied) 11. From the language employed by the Apex Court that “a third party to the decree who offers resistance would fall within the ambit of R.101, if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree” would amply make the legal position crystal clear that Rule 97 would come into play only on offering obstruction or resistance to the execution of a decree and Rule 101 would come into play when an adjudication is warranted as a consequence of that obstruction or resistance. This would make the legal position clear that an adjudication under Rule 101 would come into play only on invoking the mode of execution under Rule 97 for removal of obstruction or ## **Ex.SA.No.8 OF 2020 16** resistance by the decree holder or the auction purchaser. Rule 97 strictly is a mode of execution for removal of obstruction or resistance offered by third persons, when complained of by the decree holder or the auction purchaser, as the case may be. It is by virtue of Rule 101, a deemed jurisdiction is vested with the execution Court to decide and determine the questions of right, title and interest of an obstructor or resistor over the property sought to be delivered by exhausting the mode of execution under Rule 97 of Order 21 C.P.C. The deemed jurisdiction vested under Rule 101 can be exercised only in relation to an application under Rule 97 or 99 of Order 21 C.P.C. and not otherwise. It really stands attached with what is summed up under the caption “resistance to delivery of possession to decree holder or purchaser”. Rule 97 is an instrumentality and mode of execution in the hands of a decree holder to execute a decree by removing the obstruction and resistance. Nothing mentioned in Rule 97 in maintaining a claim petition under that rule by a third person, but simply says that when execution of a decree is resisted or obstructed by any person in ## **Ex.SA.No.8 OF 2020 17** obtaining possession, the decree holder or the purchaser may make an application to the executing court complaining of such resistance or obstruction. In fact, what is mandated under Rule 97 is a complaint in the form of an application for removal of obstruction or resistance. It is by virtue of subrule(2) to Rule 97, the executing Court is empowered to adjudicate the application so filed under sub-rule(1). The right of defence of an obstructor or resistor would arise only when there is an application under Rule 97 by the decree holder or the purchaser in court sale. There is nothing in Rule 101 so as to enable a third party to file an independent application or claim petition bypassing Rule 97 or Rule 99 of Order 21 C.P.C. Both the Rules 97 and 99 are, hence, separate mode of execution available to a decree holder with a provision to entertain and adjudicate the objection raised by any obstructor or resistor as to his right, title or interest over the said property by virtue of deemed jurisdiction conferred under Rule 101 of Order 21 C.P.C. The person who obstructs the execution has the right to agitate his right, title or interest at ## **Ex.SA.No.8 OF 2020 18** the adjudicatory stage of Rule 101 by way of defence. But that does not mean that he can maintain an application under Rule 97 of Order 21 C.P.C. 12. The Apex Court further held in **Silverline** **Forum** 's case (supra) that: “ The words “all questions arising between the parties to a proceeding on an application under R.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 resistor raised it. The questions which executing Court is obliged to determine under R.101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions 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 ## **Ex.SA.No.8 OF 2020 19** 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 resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in O.21 R.97(2) of the Code, execution Court can decide whether the question raised by a resistor 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. In the above context, R.35 of O.21 may also be referred to. It is clear therefrom that executing Court can decide whether the resistor 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 O.21 R.97(2). The adjudication ## **Ex.SA.No.8 OF 2020 20** mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” 13. There is lot of difference between “a right of institution” of a proceeding and “a right of defence”. It has different connotations and are governed by different legal standards, even assuming that there is no much difference, when it is pertaining to a suit for partition or a decree thereof. But the difference is a reality in its legal entitlement and consequences. When there is a provision entitling a party to exhaust a particular remedy in one way or the other way than the normal remedy and restricted to a set of persons of a particular category, it is not permissible to allow any other person to exhaust such benefit forgoing the normal remedy. As discussed earlier, in fact, a right of suit to a third person is not barred even after the ## **Ex.SA.No.8 OF 2020 21** amendment to the Code by taking away the right of suit under Order 21 Rule 103 C.P.C. by Amendment Act 104 of 1976 with effect from 1.2.1977. But at the same time, it is the primary duty of the executing Court to ascertain whether there is any legally sustainable issue involved to adjudicate by virtue of Rule 97(2) read with Rule 101 of Order 21 C.P.C. 14. Both the R.97 and R.99 of O.21 C.P.C. has no application when there is no decree for possession of immovable property or when there is no court sale. Then comes the question whether a decree for partition and separation amounts to a decree for possession for the purpose of its execution against a stranger/obstructor and whether it will attract the mode of execution under Rule 97 of Order 21 C.P.C. A mere decree for partition is not a decree for possession of immovable property though it involves severance of common ownership and severance of possession. Severance of common ownership and severance of possession should be understood apart from a decree for possession. Severance of possession can be made between the persons who are in joint possession of the ## **Ex.SA.No.8 OF 2020 22** property as in the case of co-ownership possession. It involves separation of common possession into various exclusive possession of parts among the coowners/joint owners by way of partition. It presupposes that unless there is joint possession/co-ownership possession, there cannot be a decree for partition and separation. The issue becomes more serious when the property is out of possession of the parties to the suit. 15. There is lot of difference between a simple decree for partition and separation and a decree for partition and separate possession in the sense, for recovery of possession and its legal consequences. What makes the difference can be initially gathered from the treatment given to a 'decree for possession' and a simple 'decree for partition and separation', under Section 37 of the Kerala Court Fees and Suits Valuation Act (for short the 'Kerala Act'), wherein different treatments were given in the matter of payment of court fee for a suit for “partition and separate possession”. In a suit for “partition and separate possession”, the liability to pay court fee is ## **Ex.SA.No.8 OF 2020 23** limited to a lesser amount of a fixed court fee under Section 37(2), when the plaintiff is in joint possession of the property with the other co-owners. But, when the plaintiff is out of possession, court fee has to be paid for the market value of property under Section 37(1) of the Kerala Act. The expression “suit for partition and separate possession” incorporated under Section 37 of the Kerala Act should be understood in two different contexts, which are separately dealt with under sub-Sections (1) and (2) of the said section. Under Section 37(1) of the Kerala Act, the expression “suit for partition and separate possession” stands for “recovery” also since the plaintiff is out of possession of property, besides “separation of right and possession” between the sharers. But, under Section 37(2), the said expression would stand only for “separation of right and possession” between the sharers who are in joint possession. Necessarily, Section 37(2) of the Kerala Act must be understood as related to a simple suit for “partition and separation” though the very same expression “partition and separate possession” incorporated in both the provisions under ## **Ex.SA.No.8 OF 2020 24** sub section (1) and (2) of Section 37 of the Kerala Act. The expression “separate possession” as incorporated under Section 37(2) of the Kerala Act stands for separation of joint possession and not for recovery and as such a suit or decree under that section must be understood as a simple suit/decree for 'partition and separation', instead of a suit/decree for 'partition and separate possession'. Section 37(2) would come into play when the plaintiff is in joint possession of the property and the liability to pay the court fee is limited to a lesser amount (fixed court fee). But, in the former case, which would fall under Section 37(1) of Kerala Act, the liability to pay court fee has to be assessed based on the entire market value of the property, since it involves not only separation of joint possession and right by way of partition, but also recovery of possession. 16. A decree which was passed for partition and separation falling under Section 37(2) of the Kerala Act is not a decree for possession and hence cannot be executed against a stranger and the decree holder cannot maintain an application under Rule 97 C.P.C.. ## **Ex.SA.No.8 OF 2020 25** There is no scope for any resistance or obstruction to be adjudicated under Rule 97 of Order 21 C.P.C. with respect to a decree passed under Section 37(2) of the Kerala Act. The legal position would be different when the decree for partition and separate possession falls under Section 37(1) of the Kerala Act and it can be executed even against an obstructor/resistor by maintaining an application under Rule 97, provided that the obstructor/resistor will get the right to defend the same under Rule 101 of Order 21 C.P.C., as if it were a suit against him. 17. Rule 99 will not come into play in the instant case as it is a suit for partition and separate possession falling under Section 37(2) of Kerala Act. 18. In the instant case, an application under Rule 97 of Order 21 C.P.C. was filed by the obstructor/ resistor. There is no provision for filing such a claim petition by the obstructor/resistor under Rule 97 of Order 21 C.P.C. as it is the domain of the holder of a decree for possession of immovable property or a purchaser of property in court auction. Further an application under Rule 97 of Order 21 C.P.C. cannot be ## **Ex.SA.No.8 OF 2020 26** maintained in a decree for simple partition and separation falling under Section 37(2) of the Kerala Act. A decree for partition falling under Section 37(2) of the Kerala Act cannot be executed against a stranger/obstructor or a third person. The adjudication rendered on merits by both the courts below on such application is without any jurisdiction, hence liable to be set aside. I do so. The execution proceedings initiated against the obstructor/resistor is also without any jurisdiction, as the decree sought to be executed is only a simple decree of partition and separation falling under Section 37(2) of the Kerala Act. There is no scope for entertaining an application under Rule 97 even at the instance of decree holder in the instant case and hence the execution application moved against the obstructor/resistor/appellant is without jurisdiction and liable to be dismissed. I do so. The execution application will stand dismissed. The appeal is allowed in part accordingly. The orders of both the courts below on the application under Rule 97, Order 21 C.P.C. are set aside. The execution proceedings initiated for obtaining ## **Ex.SA.No.8 OF 2020 27** possession of property from a stranger/ obstructor/resistor will stand dismissed, without prejudice to the right of the parties to agitate their respective grievances as per lex fori and lex loci. No costs. **Sd/-** **P.SOMARAJAN** **JUDGE** sv