BHANWAR LALversusSATYANARAIN AND ANR.

A                             BHANWAR LAL
                                   v.
                          SATYANARAIN AND ANR.

                               OCTOBER 4, 1994

B                (K. RAMASWAMY, S.C. AGRAWAL AND
                        N. VENKATACHALA, JJ.]

          Code of Civil Procedure, 1908 :

C         Order 21-Rule 35(3)-Rule 97 Scope and distinction between--
    Decree-Execution-Obstruction by third party not deriving title through judg-
    ment debtor-:Decree holder's application under Judgment debtor-:Decree
    holder's application under Rule 35(3)-Whether can be treated under Rule
    97.

D          The appellant obtained an ejectment decgree against R which be·
    came final. Thereafter when the first respondent obstructed delivery of
    possession the appellant liled an application under Order 21 Rule 35(3)
    of the Code of Civil Procedure, 1908 for police assistance but the Court
    directed him to Ille application under Order 21 Rule 97. Consequently, he
E   llled second application under Order 21 Rule 97 but the same was dis·
    missed as barred by limitation. The appellant liled a third application
    under Order 21 Rule 97 which was dismissed on the ground of res-judicata.
    On appellant's appeal the appellate Court directed removal of obstruction
    holding that he was not precluded from llling the third application. The
    respondent filed a revision before the High Court which set aside the order
F   of the appellate court and confirmed that of the executing court. On
    further review, the High Court confirmed its order. Against the orders of
    the High Court the appellant preferred appeal in this Court.

          Allowing the appeal, this Court
G        HELD : 1. The High Court has committed grievous error of juris·
  diction and also patent illegality in treating the second application llled
  by the appellant as barred by limitation and the third application on
  res-judicata. Once the application under Order 21 Rules 35(3) of the Code
  of Civil Procedure was made, the court should have treated it to be one
H llled under Order 21 Rule 97(1) CPC. [212-B, CJ
                                       208
                   BHANWAR LAL v. SATYANARAIN                         209

        2. A reading of Order 21 Rule 35(3) postulates that the person in A
possession of the immovable property to be delivered under the decree
must be per force bound by the decree. Admittedly, Respondent was not a
judgment-debtor and that therefore, he is not bound by the decree unless
he claims right, title or interest through the judgment-debtor. However,
Order 21Rule97 CPC clearly envisages that if"any person" even including B
the judgment debtor, irrespective of the fact whether he claims derivative
title from the judgment-debtor or set up his own right title or interest, de
hors the judgment-debtor, resists execution of a decree, then the court in
addition to the power under Rule 35(3) can conduct an 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 C
application against third parties to have his obstruction removed and an
enquiry thereon could be done. (210-H, 211-E, FJ

      3. When the appellant had made the application against respondent,
in law it must be only the application made under Order 21 Rule 97(1) of
CPC. But the Executing Court, obviously, was in error in directing to make D
a fresh application. It is the dnty of the executing court to consider the
avermeuts in the petition and consider the scope of the applicability of the
relevant rule. The Executing Court was directed to conduct an enquiry for
removal of the obstruction for delivery of possession of the property
covered by the. decree and pass appropriate orders according to law.
                                                                             E
                                                            (211-H, 212-E]
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3651 of
1990.

     From the Judgment and Order dated 362/88 of the Rajasthan High
Court in S.B.C.R. No. 352 of 1983.                                          F
        U.N. Bachawat, and H.M. Singh for the Appellant.

        R.K. Maheshwari and Vmeet Maheshwari for the Respondents.

        The following Order of the Court was delivered :                    G
      The appellant had obtained a decree in Second Appeal No. 175/71
from the High Court of Rajastban on March 21, 1979 of ejectment of Ram
Kishan, mesne profits till date of possession and also arrears of rent. That
decree had become final. Thereafter, the appellant filed an execution
application under Order 21 Rule 35(3) of the Code of Civil Procedure, for H
    210                      SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A short the CPC, on May 24, 1979. Thereafter, when one Satyanarain, the
    first respondent in this appeal had obstructed delivery of the possession,
    on the next day, namely, May 25, 1979, he made an application under Order
    21, Rule 35(3) for police assistance to remove the obstruction caused by
    Satyanarain. The Court directed the appellant to make an application
    under Order 21, Rule 97 pursuant to which the appellant made second
B
    application on July 18, 1979 under Order 21 Rule 97 CPC for removal of
    obstruction caused by Satyanarain. The District Munsif, Executing Court,
    on January 12, 1981, dismissed that application as being barred by limita-
    tion under Art. 129 of the Schedule to the Indian Limitation Act, 1963. On
    the even day, he filed a third application under Order 21 Rule 97 CPC
C   which was dismissed on February 20, 1982 as being barred by res judicata.
    On an appeal filed by the appellant, the Civil Judge, Bikaner, by his Order
    dated May 19, 1983, directed removal of the obstruction holding that the
    third application was not precluded to be filed by the appellant. The High
    Court in Civil Revision No. 352 of 1983 filed by Satyanarain in the im-
D   pugned order dated February 3, 1987 set aside the order of the appellate
    court and confirmed that of the Executing Court. On further review, the
    High Court confirmed its earlier order. Thus, this appeal by special leave
    against both the orders.

          The crux of the question is whether the application filed on May 25,
E 1979 by the appellant, though purported to be under Order 21, Rule 35(3)
    against Satyanarain, is convertible to be one under Order 21 Rule 97.
    Order 21 Rule 35(3) provides that :

            "35(3) Where possession of any building on enclosure. is to be
F           delivered and the person in possession, being bound by the decree,
            does not afford free access, the Court, through its officers, may,
            after giving reasonable warning and facility to any woman not
            appearing in public according to the customs of the country to
            withdraw, remove or open any lock or bolt or break open any door
            or do any other act necessary for putting the decree-holder in
G           possession. 11


          A reading of Order 21 Rule 35(3) postulates that the person in
    possession of the immovable property to be delivered under the decree
    must be per force bound by the decree. Admittedly, Satyanarain was not
H   a judgment-debtor and that therefore, he is not bound by the decree unless
                  BHANWARLALv.SATYANARAIN                                211

he claims right, title or interest through the·jadgment-debtor, Ramkrishan.    A
The person resisting delivery of possession must be bound by the decree
for possession. In other words the resistor must claim derivate litle from
the judgment debtor. The court gets power under Order 21 Rule 97 to
remove such obstruction or resistance and direct its officer to put the
decree holder in possession of the immovable property after conductiog          B
enquiry under Rule 97.

      Order 21, Rule 97 provides thus :

        '.'97. Resistance or obstruction to possession of immovable proper-
        ty....... (1) Where the holder of a decree for the possession of       C
        immovable property of the purchaser of any such property sold in
         execution of a decree is resisted or obstructed by any person in
        obtainiog possession of the property, he may make an application
        to the Court complaining of such resistance or obstruction.

        (2) Where any application is made under sub-rule (1), the Court        D
        shall proceed to adjudicate upon the application in accordance
        with the provisions hereio contained."

      The procedure has been provided in Rules 98 to 103. We are not, at
present, concerned the question relating to the procedure to be followed E
and question to be determined under Order 21 Rules 98 to 102. A reading
of Order 21 Rule 97 CPC clearly envisages that "any person" even iocluding
the judgment debtor irrespective whether he claims derivative title from
the judgment-debtor or set up his own right title or ioterest de hors the
judgment- debtor and he resists execution of a decree, then the court io
addition to the power under Rule 35(3) has been empowered to conduct F
an enquiry whether the obstruction by that person in obtainiog 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. Each occasion of obstruc-
tion or resistance furnishes a cause of action to the decree holder to make G
an application for removal of the obstruction or resistance by such person.

       When the appellant had made the application on May 25, 1979
against Satyanarain, in law it must be only the application made under
Order 21 Rule 97(1) of CPC. The Executiog Court, obviously, was in error
in directing to make a fresh application. It is the duty of the executing court H
    2U                    SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.

A   to consider the ave.rments in the petition and consider the scope of the
    applicability of the relevant rule. On technical ground the Executing Court
    dismissed the second application on limitation and also the third applica-
    tion, on the ground of res judicata which the High Court has in the revisions
    now upheld. The procedure is the handmaid of substantive justice but in
    this case it has rule the roost.
B
          In the above view we have taken, the High Court has committed
    grievous error of jurisdiction and also patent illegality in treating the
    application filed by the appellant as barred by limitation and the third one
    on res judicata. Once the application, dated May 25, 1979 was made, the
C   court should have treated it to be one filed under Order 21, Rule 97(1)
    CPC. The question of res judicata for filing the second and third applica-
    tions does not arise. Under these circumstances the appellate court, though
    for different reasons was justified in directing an enquiry to be conducted
    for removal of the obrstruction or resistance caused by Satyanarain under
    Orders 21 Rule 35(3) and 97(2) and Order 21 Rule 101 and 102 of CPC.
D
          The appeal is accordingly allowed. The Order of the High Court and
    that of the Executing Court are set aside. The Executing Court is directed
    to conduct an enquiry for removal of the obstruction for delivery of
    possession of the property covered by the decree and pass appropriate
    orders according to law.. The application filed by Lakshminarain is
E   rejected. If he has got any other right independent of the rights in the
    proceedings under execution, it may be open to him to agitate the same
    according to law. No costs.

    T.N.A.                                                      Appeal allowed.