Decree; Unnikrishnan Vs. Kunhibeevi [Kerala High Court, 21-01-2011]

Civil Procedure Code, 1908 – Order 21, Rules 97 to 103 – A suit, even by a third party, impeaching a court sale is not maintainable and he has to take recourse to either Rule 97 of Order XXI, if it was before dispossession, or Rule 99 of Order XXI, if he had already been dispossessed and delivery effected after the court sale – Adjudication of all disputes over the right, title and interest of any person over the property covered by the decree – Once the execution has commenced the execution court alone can consider such disputes and it cannot be agitated by a separate suit – Even if a suit is entertained challenging a decree for possession of property before commencement of the execution proceedings of such decree, if the execution of that decree has culminated in a court sale of the property or the Plaintiff in that suit has already been dispossessed, the claim raised over the property has to be adjudicated only by the execution court and not by any other court.

# Decree

# 2011 (1) KLT 508 : 2011 (1) KLJ 475 : ILR 2011 (1) Ker. 785 : 2011 (1) KHC 352

IN THE HIGH COURT OF KERALA AT ERNAKULAM

THOTTATHIL B.RADHAKRISHNAN AND S.S. SATHEESACHANDRAN JJ.

Dated this the 21st day of January, 2011

AS.No. 383 of 1997(E)

UNNIKRISHNAN Vs KUNHIBEEVI

For Petitioner :SRI.M.P.SREEKRISHNAN; For Respondent :SRI.N.SUBRAMANIAM

J U D G M E N T

S.S. SATHEESACHANDRAN, J.

The appellants are defendants 5, 7, 8 and some among the legal representatives of the 6th defendant, in O.S.No.229/93 on the file of the Principal Sub Court, Kochi. Respondents 1 to 8 are the legal representatives of the plaintiff viz., P.K.Aboo. 9th respondent is the 1st defendant in the above suit and respondents 10 to 12 are defendants 2 to 4 in the suit. Respondents 10 and 12 passed away during the pendency of the appeal and their legal representatives have been impleaded as respondents 19 to 23 and 24 to 27 respectively. Respondents 13 to 18 are the other legal representatives of the 6th respondent in the suit.

2. The appeal is directed against the decree granted by the court below setting aside the court sale in O.S.No.67/81 of the Principal Sub Court, Kochi, and directing re-delivery of some of the properties covered by that sale, four items described as B schedule in the present suit.

3. Short facts involved in the case necessary for disposal of the appeal can be summed up thus: The 1st defendant, a statutory bank, instituted O.S.No.67/81 against defendants 2 to 4 for recovery of the loan advanced to the 2nd defendant on the basis of mortgage of the properties of defendants 3 and 4, by sale of the properties. 12 items were included in the above suit as the mortgaged properties. Items 1 to 4 in O.S.No.67/81 are the B schedule properties in the present suit, O.S.No.229/93. Plaint A schedule properties in the suit are items 5 to 12 in O.S.No.67/81. Before institution of the above suit by the bank but long after the mortgage over item Nos.1 to 12 in its favour, another creditor of the 2nd defendant, M/s.Mettur Beard Sell Limited had instituted a suit, O.S.No.102/76 against the 2nd defendant. In the decree passed in that suit, B schedule properties in the present suit (items 1 to 4 in O.S.No.67/81) were brought to sale, and the present plaintiff, Sri.P.K.Aboo as the highest bidder in the auction purchased them. Those properties were later delivered over to him through court. Meanwhile, the suit, O.S.No.67/81 filed by the 1st defendant bank on 15.4.1981 was decreed. When the decree holder/1st defendant bank in the present suit moved for execution of the decree by sale of the mortgaged properties, the plaintiff had resisted the sale over B schedule, (items 1 to 4 in O.S.No.67/81). His challenges being negatived, the sale proceeded in which ‘B’ schedule properties were purchased by defendants 5 to 8. Though the plaintiff had challenged the delivery of B schedule properties to defendants 5 to 8, on various grounds, such attempts were unsuccessful. The plaintiff thereafter filed the present suit O.S.No.229/93 for a declaration that the court sale of the properties in O.S.No67/81 is illegal and vitiated by fraud and irregularity in the publishing and conducting of the sale, and, thus, liable to be set aside, and for a permanent prohibitory injunction to restrain the defendants from alienating or creating any charge over B schedule properties. A decree for re-delivery of B schedule was also sought for.

4. Among the defendants, the 1st defendant bank, 4th defendant, 5th defendant, and defendants 6 to 8 together, and 7th defendant separately, filed written statements, among whom, the 4th defendant supported the case of the plaintiff that the court sale is vitiated by fraud, and others resisted the claims canvassed raising manifold contentions in which the maintainability of the suit was also challenged in view of the orders passed by the execution court in O.S.No.67/81. The present suit is barred by res judicata was one among the contentions raised by the 1st defendant. Sale over B schedule items on the basis of the decree in O.S.No.102/76 by which the plaintiff claimed right over those properties as the auction purchaser, who had obtained delivery of such properties in such sale, was also impeached by the 1st defendant contending that B schedule properties were subject to the mortgage created in favour of the bank much earlier, and the suit [O.S.No.67/81] by the bank having been filed earlier to the sale held under the decree passed in O.S.No.102/76, such sale is hit by lis pendens. Defendants 5, 7, 6 and 8 in their written statements contended that the sale conducted in O.S.No.67/81 was proper, legal and valid and on no ground it was liable to be declared as null and void. They also contended that such sale could not be impeached in a separate suit at the instance of the plaintiff.

5. On the pleadings of the parties as above, the court below raised mainly the following issues: Whether the court sale impeached is vitiated by material irregularity and fraud in publishing and conducting of such sale and as to whether the plaintiff is entitled to the declaration and injunction sought for. On the issues so settled, both sides let in evidence, plaintiff examining Pws.1 to 6 and exhibiting Exts.A1 to A33, and the defendants one witness, DW.1 and towards documentary evidence Exts.B1 to B8. After having considered the pleadings with reference to the evidence let in by the parties and hearing the counsel on both sides, the court below arriving at the conclusion that the court sale impeached is vitiated by material irregularity and fraud, in publishing and conducting it, decreed the suit. The plaintiff was granted the declaration sought for setting aside the sale, and also re-delivery of the property by restitution under Section 144 of the Code of Civil Procedure, from defendants 5 to 8. The defendants 5, 7 and 8 with some of the legal representatives of the 6th defendant, all of them together, have preferred the present appeal challenging the legality and correctness of the judgment rendered by the court below setting aside the court sale in execution of the decree passed in O.S.No.67/81.

6. We heard the learned Senior Counsel Sri.M.C.Sen for the appellants, Advocate Sri.N.Subramanian for respondents 1 to 8 and Advocate Sri.Joseph Thayankeril for the 9th respondent. Both sides have argued extensively on various aspects touching upon the conducting and publishing of the sale in execution of the decree in O.S.No.67/81, which has been impeached in the suit as vitiated by fraud, material irregularity and illegality and thus null and void. After hearing the counsel at length and taking note of the controversies involved in the suit on which the parties have joined issues, we found that the first and foremost question to be considered relate to the entertainability of the suit challenging a court sale by a civil court de hors the provisions covered by Order XXI of the above Code. Counsel on both sides, on our bidding, have presented various facets involved in examining the maintainability of the suit challenging a court sale placing reliance on judicial authorities in support of the rival case presented.

7. A recapitulation of the admitted facts, as borne out by the pleadings and materials placed, has to be stated as to why the primary question to be considered in the appeal rests on the maintainability of the suit. A mortgage in favour of the first defendant bank in respect of the plaint properties A and B schedules subsisted when O.S.No.102/76 was instituted against the present 2nd defendant by M/s.Mettur Beard Sell Limited. Even before a decree was passed in the above suit, the above bank had filed a suit O.S.No.67/81 on 15.4.1981 for recovery of the money under the loan advanced to the 2nd defendant by sale of the mortgaged properties furnished as collateral security by defendants 3 and 4. A decree was passed in O.S.No.102/76 earlier in point of time, and B schedule properties in the present suit [4 items] brought to sale on 6.1.1982 in execution of that decree were purchased in the auction by the present plaintiff P.K.Aboo. That sale was confirmed on 10.3.1982. Those properties were delivered over to the plaintiff on 16.3.1985 and 2.4.1985. Suit filed by the bank O.S.No.67/81 was decreed on 8.1.1983 and in execution of that decree, at various stages, the plaintiff P.K.Aboo had resisted the steps for sale proceeded against the B schedule property for realisation of the decree debt. Plaintiff had filed an application E.A.No.141/86 in the execution proceedings of O.S.No.67/81 (E.P.79/84) seeking deletion of B schedule items which was sold and delivered over to him in execution of the decree in O.S.No.102/76. The execution court had dismissed that application but with a reservation that the obstructer/plaintiff will be entitled to the benefit under Section 61 of the Transfer of Property Act. Admittedly both the bank and also the plaintiff challenged the orders of the execution court in E.A.No.141/86 before this court by filing C.R.P.No.1480/87 and 295/88 respectively. Both revisions were dismissed by order dated 11.8.1989. After proclamation for sale of all the items were settled, the plaintiff moved another application as E.A.No.537/87 challenging the steps for sale of B schedule items and that was dismissed by the execution court. That was challenged in revision before this court by the present plaintiff. This court, confirming the order of the execution court directed it to proceed against B schedule property if only sale of A schedule properties was found insufficient to satisfy the decree debt due to the bank. Since the sale conducted over A schedule property was found to be insufficient, B schedule properties were also put to sale and those items were purchased by defendants 5 to 8 in such sale. Plaintiff, admittedly, filed an application under Order XXI Rule 89 of the Code of Civil Procedure after such sale. But since the application was not filed tendering the amount covered by the sale with the commission thereof, it was dismissed. Pursuant thereto, the sale being confirmed and sale certificate issued, the auction purchasers [defendants 5 to 8] applied for delivery of the properties. The delivery over B schedule was obstructed to by the plaintiff by filing several petitions, one after the other. Though no documentary materials tendered, at the hearing of appeal, the events that followed after issue of warrant for delivery were also referred to. The Amin deputed by the court had filed a report that delivery of B schedule was effected in execution of the warrant. Contending that there was no divesting of possession and physical possession was retained by him, the plaintiff moved an application before the execution court for annulling the report of the Amin. That application was dismissed, and against which a revision was filed before this court. The revision was disposed of upholding the finding of the execution court that the properties had been delivered over to the auction purchaser, but, reserving the right, if any, of the plaintiff to work out his remedies by way of appropriate proceedings.

8. The short question posed for consideration in the given facts of the case, is whether the plaintiff has to approach the execution court which passed the decree in O.S.No.67/81 in favour of the first defendant bank to impeach the court sale in execution of that decree and re- delivery of the property ordered thereon in favour of the auction purchasers, who had purchased B schedule in the auction, or, is the plaintiff empowered to file a separate suit to impeach such court sale and delivery on any ground whatsoever for a declaration that the court sale is void and for re-delivery of the property.

9. The learned counsel for the plaintiff Sri.Subramaniam relied on a number of authorities to contend that the suit is perfectly maintainable as he being a third party to the proceeding in O.S.No.67/81 he cannot be compelled to approach the execution court in which the decree passed in the above suit had been executed, moving an application under Order XXI Rule 99 of the Code. The decree passed in the above suit was not binding on the plaintiff as he was not a party to that suit and so, his right to impeach the court sale and the delivery in execution of the decree passed in that suit by way of a separate suit is a civil right, which is, in no way, interdicted by the procedure covered by Order XXI Rule 99 of the Code, is the submission of the learned counsel. Reliance is placed on by the counsel on

# Pavan Kumar v. K.Gopikrishnan, AIR 1998 AP 247

to submit that the remedy under Order XXI Rule 99 of the Code, is one among the remedies available to the person who was dispossessed in execution of a decree. The above rule cannot be interpreted or construed as placing a bar on instituting a fresh suit for possession, the view expressed in the aforesaid decision is relied by the counsel to contend that the present suit is maintainable. Canvassing support from

# Abdul Rashid Dar v. Mohamed Ismail, AIR 1989 J&K 48

to contend that a third party, who has been dispossessed in execution of a decree “may make an application complaining of dispossession and in that event the court has to make an enquiry and if it finds merit in his claim, it has to restore its possession”, the learned counsel submitted that the above rule, is only an enabling provision and it does not place any impediment to the civil right of a third party to file a civil suit to protect his possession over an immovable property, which is proceeded against in execution of a decree, wherein he is not a party, and thus not binding on him. Placing reliance on

# M/s. Paramount Industries v. C.M. Malliga, ILR 91 Karnataka 254

it is argued by the counsel that it is open to the person, who is in possession of an immovable property, who is not a party to the decree passed in respect of that property, to resist the execution thereof and establish his right, title and interest either by filing an application under Order XXI Rule 99 of the Code, after dispossession in execution, or to file a suit for declaration of his title and seek permanent injunction to resist the decree from dispossessing him from the property. He can sue for possession on the basis of his title, according to the counsel, if he fails to resist the execution or does not get an opportunity to resist execution, canvassing support from the aforesaid decision. Inviting attention to

# Tanzeem-e-Sufia v. Bibi Haliman, AIR 2002 SC 3083

it is contended that the procedures provided for by Order XXI Rule 97 and 99 of the Code empowering the execution court to determine the obstruction to the decree in execution before delivery of possession or after such delivery do not impeach the right of a third party in possession to file a suit to protect his right and interest or possession over that property. Inviting attention to the observations of this court in

# Baburaj v. Vasanthi Devi, 2008 (4) KLT 761

it is contended that the Apex Court in

# Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, AIR 1997 SC 856

has only disallowed the right of strangers to the decree to make resistance or obstruction at the pre-delivery stage, and the aforesaid decision of the Apex Court does not foreclose the right of a stranger to a decree to file a fresh suit, according to the counsel. Reliance is also placed on

# A.M. Subbamma v. A.V.Kushalappa, 2006 AIHC 2682 Karnataka High Court

by the learned counsel for the plaintiff to contend that when a suit is filed in respect of the property covered by the execution the plaintiff in such suit cannot maintain an application under Order XXI Rule 97 of the Code, as he has to adjudicate the merit of his claim in the suit, substantiating the relief canvassed therein.

10. The decisions referred to and relied by the learned counsel for the plaintiff other than Tanzeem-e- Sufia’s case {AIR 2002 SC 3083} and Baburaj’s case {2008(4) KLT 761} both cited supra, which shall be adverted to later, dealt with the right of a third party to a decree to establish his right over an immovable property otherwise than by recourse to the provisions of Order XXI of the Code, without taking note of the impact of the amendment to Rules 97 to 103 of Order XXI of the Code brought in 1976 under Act 104 of 1976 or the interpretation placed over such amendment by the Apex Court that even a third party has to move an application before the court in which the decree is executed to resist or obstruct its execution and his dispossession, and he can do so even before delivery is ordered or after dispossessed from the property, and that he cannot maintain a separate suit to establish his right, interest and title over the property, if it is so covered by the decree put in execution. In

# Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242

the Apex Court, after considering the scope and ambit of the amendment to the Code in respect of Order XXI Rules 97 to 104 under Act 104 of 1976, pointing out that the right to file a suit under Order XXI Rule 103 of the 1908 Code which was available earlier had been taken away under the above amendment has laid down in unmistakable terms that any person who claims any right, title or interest, whether or not he is a party to the decree, by virtue of the amendment to the above Rules under Order XXI of the Code has to pursue his remedies only under the relevant rule applicable under Order XXI for adjudication of his right, title and interest in the immovable property in execution and any decision thereof, which is deemed to be a decree, subject to the further challenge as provided by the Code, has to be treated as final and conclusive. The Apex Court in the above decision has held thus:

“Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Code of Civil Procedure Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.”

11. Highlighting that the right to adjudication of a dispute whether it be in respect of right, title and interest of a party in an immovable property which, no doubt, is a substantive right, the Apex Court has held that it is only a procedural right to which no one has a vested right. Whatever be the substantive right of a party, the right to an adjudication of a dispute thereto is regulated by the procedure laid down by the legislature. The object of the law is primarily to meet out justice. The rules of procedure have been devised to decide the disputes to render substantive or at best substantial justice. By virtue of the amendment in 1976 to the Code the right to adjudication of the dispute in respect of a claim to right, title or interest of any person, after the passing of a decree with respect to that property, has to be decided by the court called upon to execute that decree in accordance with the procedure laid down under Order XXI Rules 97 to 103 of the Code, as may be applicable. If a third party to the decree on the plea that he being not a party to such decree can file a fresh suit to vindicate his right, title or interest claimed over the property overlooking and negating the procedure covered by the above rules under Order XXI, then, naturally, it would undermine the faith of the public in the efficacy of the law and administration of justice by the court and further the litigation can be continued with no end in sight. The Apex Court in the above decision, emphasizing that the right to adjudication of a dispute over the claim of any person as to his right, title or interest in an immovable property is only a procedural right to which no one can claim a vested right, has stated thus;

“The faith of the plea in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.”

12. We find that even before Nooruddin’s case (cited supra) the Apex Court has pointed out that the words ‘any person’ covered by Order XXI Rule 97 of the Code includes persons other than the judgment debtor or those who claim derivative title from the judgment debtor. Even where a person sets up his own right, title or interest de hors the judgment debtor and he resists the execution of the decree, it has been held in

# Bhanwar Lal v. Satyanarayain, (1995) 1 SCC 6

the execution court, by virtue of the amendment in Order XXI Rule 97 of the Code, has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession over the immovable property was legal or not. True, in that decision, the impact and scope of the amendment in 1976 to the Rules covered by Order XXI Rules 97 to 103 of Order XXI has not been dealt with, which, we find, was considered in the latter decision in Nooruddin’s case, discussed above. The Apex Court in

# Babulal v. Raj Kumar, AIR 1996 SC 2050

relying on Bhanwar Lal ‘s case {1995(1) SCC 6] has held that an obstruction, even before dispossession, put forth by a party moving an application claiming a right, title or interest in a property covered by the decree in execution has to be adjudicated, conducting an enquiry as enjoined under Order XXI Rule 98 and a finding is required to be recorded in that regard by the execution court. So, the controversy which prevailed as to whether an anterior obstruction by any person whether he be a party and not bound by the decree in execution, before dispossession could be entertained by the execution court and whether an enquiry over such claim is warranted has been settled by the Apex Court clarifying that such claim required to be enquired into and a finding recorded and that the order thereof would squarely fall as a decree as covered under Rule 103 of Order XXI and it shall be subject to an appeal. Adverting to the entertainability of a claim by any person in execution, before his dispossession by an application under Order XXI Rule 97 of the Code, the Apex Court has held thus, in the above decision.

‘The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98, which is an order and is a decree under Order 21 Rule 103 for the purpose of appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete Code in itself.’

(emphasis supplied)

13. The Apex Court again in

# Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, AIR 1997 SC 856

reiterating the principles laid down in Bhanwar Lal’s case (cited supra) set at rest all controversies as to whether an obstructer resisting a decree for possession as being a  stranger to such decree has the right to approach the court executing that decree before his dispossession. It has been held that such stranger can agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even prior to his dispossession. Pointing out that Order XXI Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree holder, and Order XXI Rule 99 contemplates with a subsequent stage where a stranger after dispossession in execution of the decree seek adjudication of his independent right, title and interestover the property delivered over, the Apex Court held that both types of enquiries are clearly contemplated by the scheme of Order XXI and “it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before.” In the above decision, what has been stated earlier in Babulal’s case (cited supra), but without referring to that decision, has been emphasized expressing thus:

“Provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree holder and whose attempts at executing the said decree meet with rough weather.”

14. Dilating further on the ambit and scope of Rules 97 to 103 of Order XXI, which have been held as a complete Code for resolving all disputes pertaining to execution of a decree for possession, the Apex Court has held that the statutory scheme envisaged by Order XXI Rule 97 Code of Civil Procedure “provides a statutory remedy both to the decree holder as well as to the obstructionist to have their respective say in the matter and to get a proper adjudication before the Executing Court and it is that adjudication, which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI Rules 97 to 103 would remain a complete Code and the sole remedy for the concerned parties to have their grievances once and for all, finally resolved in execution proceedings themselves.”

(emphasis supplied)

15. In

# Sreenath and another v. Rajesh and others, (1998) 4 SCC 543

adverting to the amendments to Rules 97 to 103 of Order XXI Code of Civil Procedure, as amended by 1976 Act, it has been pointed that both under the old law and also the present law, the right of any person claiming on his own over the property covered by the decree for possession, in case he resists such decree, is to have his objection decided by the executing court itself. The amendment under the 1976 Act curtailed the right of such person by way of an independent suit as provided earlier under Order XXI Rule 103 of the Code and the decision rendered by the execution court over his objection to the decree of possession on the claim raised over his independent right the judgment debtor will be subject to the right of appeal as provided under Rule 102 of Order XXI of the Code. The impact of the amendment to Rules 97 to 103 of Order XXI of the Code under the 1976 amendment Act is stressed upon by the Apex Court in the decision, stating that all questions relating to the right, title or interest in the property arising between the parties under Order XXI Rule 97 or Rule 99 of the Code should be determined by the court executing the decree of possession and not by a separate suit. The Apex Court has observed thus:

“By the amendment, one has not to go for a fresh suit but all matters pertaining to that property including any obstruction by a stranger are adjudicated in execution proceedings. The expression ‘any person’ in Rule 97(1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order XXI Rule 97 of the Code.”

16. The use of the words ‘any person’ in the above Rule, which emphasised includes a ‘stranger’ and so much so, all disputes between the decree holder and any such person are to be adjudicated by the executing court as ordained under Order XXI Rule 101 of the Code. The purport and laudable objective behind the amendment compelling any person claiming independent right, and not under the judgment debtor, over the property covered by the decree in execution, and also the decree holder when he is faced of an obstruction from any ‘stranger’ in getting possession, to approach the execution court for adjudication of all disputes between them, it is stated by the Apex Court, is to salvage possible hardship both to the decree holder and the other person claiming title on his own right to raise objection to the very execution proceedings, and not to be thrown out to agitate the disputes in a long-drawn-out arduous procedure of a fresh suit.

17. In

# Ghasi Ram and others v. Chait Ram Saini, (1998) 6 SCC 200

the Apex Court was called upon to consider the applicability of Section 14 of the Limitation Act with respect to a suit filed under Order XXI Rule 103 of the Code prior to amendment, after the expiry of the period of one year provided for institution of such suit, on dismissal of the claim raised by the obstructionist to the decree for possession setting up an independent right the judgment debtor. Taking note of the facts and circumstances involved and that the plaintiff in such suit, which was instituted in 1958, was an illiterate litigant, and he was misled by the ill- advice given by his counsel, it was held that exemption of the period during which he had prosecuted a revision before the High Court against the order passed by the execution court on his application under Order XXI Rule 97 of the Code, was allowable under Section 14 of the Limitation Act in his case. In the above decision also the Apex Court has delineated the changes brought into Rules 97 to 103 under Order XXI of the Code by the Amendment Act of 1976. Previously, under Rule 103 of Order XXI, even after an order had been passed under Rule 97, it was open to file a fresh suit under Rule 103 to establish the right of the claimant for possession over the property covered by the decree, subject to institution of such suit within one year to be computed from the date of the order passed under Rule 98 of the Code. The change of position after amendment by the Amendment Act of 1976, is pointed out by the Apex Court, stating thus:

“Now under the amended provisions, all questions, including right, title, interests in the property arising between the parties to the proceedings under rule 97, have to be adjudicated by the executing court itself and not liable to be left to be decided by way of a fresh suit.”

18. In

# Thanzeem-e-Sufia v. Bibi Haliman & others (2002) 7 SCC 50

the Apex Court considered the question whether a claimant, who had filed a civil suit for declaration of her title and possession over a property which was covered by a decree for possession and pending in execution, against the decree holder, can maintain an application under Order XXI Rule 97 of the Code obstructing the execution of the decree. It was held that rejection of her application under Order XXI Rule 97 of the Code for the reason that she had instituted a separate suit by the execution court, which was confirmed by the High Court was not correct since all questions relating to right, title or interest in a property relevant to the adjudication of the application under Order XXI Rule 97 of the Code shall be dealt with in the application and not by a separate suit. In

# Prasanth Banerji v. Pushpa Ashoke Chandani & ors. (2002) 9 SCC 554

the maintainability of the suit filed by a  person who was not a party to the decree after proceedings had been initiated against him in the execution proceedings under Order XXI Rule 97 of the Code arose for consideration. In that case, the High Court had held that the suit, which had been instituted after the initiation of the execution proceedings, is not maintainable and dismissed the second appeal, but with a reservation that the appellant can raise all his claims in the execution proceedings under Order XXI Rule 97 of the Code. Affirming the decision of the High Court, the Apex Court has held that the question involved is covered in Sreenath’s case (cited supra). In

# Ashan Devi v. Phulwasi Devi & ors; AIR 2004 SC 511

the Apex Court has emphasized that in interpreting the provisions of Order XXI Rule 97 of the Code and other provisions in the said Order, the aims and objects for introducing amendment cannot be lost sight of. Pointing out that under the unamended provisions of the Code third parties adversely affected or dispossessed from the property involved were required to file independent suits for claiming title and possession, it is stated that the amendment was purposely made by the legislature “to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of the litigation and arrest delay caused in execution of decrees”.

19. We do not find any expression nor even any observation in

# Baburaj v. Vasanthi Devi, 2008 (4) KLT 761

running counter to or militating against the interpretation given by the Apex Court and the law laid down in unequivocal terms that a suit, even by a third party, impeaching a court sale is not maintainable and he has to take recourse to either Rule 97 of Order XXI, if it was before dispossession, or Rule 99 of Order XXI, if he had already been dispossessed and delivery effected after the court sale. In Brahmdeo Chaudhary’s case (cited supra) which was referred to in the aforesaid Baburaj’s case dealt with only the entertainability of a challenge from a stranger to the decree to make resistance or obstruction at the pre-delivery stage. The argument canvassed by the learned counsel for the plaintiff to impress upon us that the present suit is maintainable, relying on Baburaj’s case has no merit. We have already pointed out that in Brahmdeo Chaudhary’s case, whatever principles stated in Bhanwar Lal’s case (cited supra) rendered earlier had been re- emphasized with crystal clarity that provisions under Rules 97 to 103 of Order XXI lay down a complete Code by themselves for resolving all disputes pertaining to the execution of a decree for possession pursuant to a court sale in execution of such decree. In Baburaj’s case, we do note that some expressions have been made as to the correctness of the observations made in paragraphs 7, 8 and 11 of Brahmdeo Chaudhary’s case, all of them pertaining to the procedure to be followed in adjudication of the applications arising under Rules 97 and 99 of Order XXI of the Code. View expressed in Baburaj’s case to take exception to the principles laid down in paragraphs 7, 8 and 11 in Brahmdeo Chaudhary’s case, holding that Rule 98 of Order XXI of the Code covers only cases involving restrictions or obstructions by a judgment debtor or by some other persons on behalf or by a transferee pendente lite, and that the procedure for adjudication of the applications under Rules 97 and 99 of Order XXI of the Code is under Rules 105 and 106 of that Order, is not correct. Procedure for consideration of the application under Rule 97 or 99, even where it is by the decree holder, for removal of the obstruction to delivery of possession by the judgment debtor or any person claiming under him, or by a third party, not claiming under the judgment debtor, is governed by Rules 105 and 106 of Order XXI of the Code; and, Rule 98 only lays down what is to follow after determination of the questions arising for adjudication which includes all questions relating to right, title and interest in the property under the court sale, between the parties to the proceedings. Where a third party can move an application to obstruct delivery of possession in a court sale only under Rule 97 or 99 of Order XXI, it cannot be stated that a different procedure for consideration of his claim or objection without reference to Rule 100 or 98 of the above order is provided in the Code. In fact, the procedure under Rule 105 and 106 is not confined to the adjudication of applications under Rule 97 or 99, but in the case of any other application covered by Order XXI of the Code wherein an adjudication of the substantive right of the parties is involved for determination by the court. In Rule 105 dealing with hearing of application, it has been spelt out that ‘an application under any of the foregoing rules of this Order is pending’ indicating that the procedure applicable thereunder is not confined to adjudication of the application under Rule 97 or 99 alone. Procedure covered by Rules 105 and 106 of Order XXI is applicable to all proceedings under the above Order and not confined to one or other rule and it applies even in a case for restoring an application dismissed for default, within the time limit permissible under law. The decision rendered by the Apex Court in

# Damodaran Pillai v. South Idian Bank Ltd., 2005 (4) KLT 192 [SC]

would give an insight that the above rules are applicable to all applications covered by the Rules under Order XXI of the Code.

20. We are conscious and do take note that sub rules (3) to (5) in Rule 92 of Order XXI of the Code may induce and in fact persuade one to take a view that the right of a third party to challenge a court sale impeaching the title of the judgment debtor to the property by way of a suit is safeguarded despite the amendment made to Rule 103 of Order XXI under Act 104 of 1976. sub rules (3) to (5) of Rule 92 of Order XXI read thus:

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

(4) Where a third party challenges the judgment- debtor’s title by filing a suit a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree- holder to refund the money to the auction- purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered.”

21. Whereas the decree holder, judgment debtor and auction purchaser or any person claiming under any of them, against whom an order under Rule 92 of Order XXI of the Code has been made are interdicted from challenging such order by way of a suit, sub rule (4) states that in a suit filed by a third party challenging the judgment debtor’s title, the auction purchaser and the decree holder and the judgment debtor shall be necessary parties. sub rule (5) of Rule 92 further postulates that if such a suit by a third party is decreed the court which passes such decree shall direct the decree holder to refund the money to the auction purchaser and also as a consequence of such order, the execution proceedings which had led to the court sale, unless the court otherwise directs, be revived from the stage at which the sale was ordered. Provisions as above covered by sub rule (4) and (5) of Rule 92 have necessarily to be interpreted and understood with reference to the decisions of the Apex Court commencing from Bhanwarlal’s case that even the third party setting forth any right over the property covered by court sale can have only recourse to Rule 97 or 99 of Order XXI and not by way of a separate suit. In none of the decisions rendered by the Apex Court from Bhanwarlal’s case to Ashan Devi’s case, there is reference or consideration to sub rules (4) and (5) of Rule 92 of Order XXI is of no consequence, where the law applicable with respect to a challenge against the court sale even by a third party has been succinctly stated and explained in crystal clear terms that the remedy has to be availed by resort to Rule 97 to 103 of Order XXI which has been declared as a complete Code by themselves in the matter, and not by a separate suit. We have noticed that High Court of Guwahati in

# National Grindlays Bank v. Deepak Sharma, 2002 (TLS) 604153

and also the High Court of Andhra Pradesh in

# Kukkala Balakrishna & Ors. v. M/s.Vijaya Oil Mills, AIR 2006 AP 98

have expressed the view that a suit at the instance of a third party to impeach a court sale, having regard to sub rules (4) and (5) of Rule 92 of Order XXI is still maintainable. But both the above High Courts have not taken note of the entertainability of such a suit with reference to the decisions rendered by the Apex Court emerging from Bhanwarlal’s case. We are of the firm view that in the light of the law laid down by the Apex Court as to the non-entertainability of a suit impeaching a court sale even by a third party he has only a right to have recourse to Rule 97 or 99 of Order XXI as the case may be. View to the contrary expressed by the above High Courts, that too without taking note of the decisions of the Apex Court (cited supra) cannot have any persuasive value.

22. The learned Senior Counsel for the first respondent Sri.M.C.Sen has canvassed before us that the suit by the mortgagee bank, O.S.No.67/81, having been instituted much before the mortgaged property being proceeded for sale in execution of the decree in O.S.No.102/76, the court sale over ‘B’ schedule properties is hit by lis pendens. The auction purchaser of ‘B’ schedule properties, the plaintiff, could claim only the rights under the judgment debtors in O.S.No.67/81, and the present suit was not maintainable, contended the counsel. In the light of the discussion made above, and the conclusion formed that the present suit of the plaintiff impeaching the court sale is not entertainable, not much dilation over the maintainability of the suit as hit by lis pendens is warranted. Since the 1st defendant bank – mortgagee had, admittedly, instituted the suit, O.S.No.67/81 for sale of the mortgaged property much earlier and before the mortgaged properties were proclaimed and brought to sale in execution of the decree in O.S.No.102/76 such court sale, no doubt, will be subject to the decision rendered in O.S.No.67/81, and the learned counsel is fully justified in contending that the claim raised over ‘B’ schedule properties by the plaintiff in the suit, as the auction purchaser in the court sale in O.S.No.102/76, is hit by lis pendens {See

# People’s Co-operative Bank Ltd. v. Parvathy Ayyappan Pillai, AIR 1959 Kerala 133

and

# Govinda Marar v. Govinda Kurup, 1971 KLT 730

23. So what we notice from the catena of decisions referred to above, rendered by the Apex Court, is that by virtue of the Amendment Act 1976, a sea change with respect to the resolving of disputes over the executability of a decree for possession has taken place after the amendment Act of 1976 to the Code, by which the provisions covered by Rules 97 to 103 of Order XXI of the Code lay down the scheme for adjudication of all disputes over the right, title and interest of any person over the property covered by the decree, and once the execution has commenced the execution court alone can consider such disputes and it cannot be agitated by a separate suit. Even if a suit is entertained challenging a decree for possession of property before commencement of the execution proceedings of such decree, the scheme covered by the provisions of Rules 97 to 103 of Order XXI after the amendment spells out that if the execution of that decree has culminated in a court sale of the property or the plaintiff in that suit has already been dispossessed, the claim raised over the property has to be adjudicated only by the execution court and not by any other court. Such being the effect of the amendment under the 1976 Amendment Act, the suit filed by the plaintiff after he had been worsted in all his attempts to resist the execution of the decree in O.S.No.67/81 before the execution court in which he had moved umpteen number of petitions obstructing the delivery of B schedule property covered by that decree, was not at all maintainable. Challenge against the sale of B schedule property covered by the decree as vitiated by fraud and material irregularity, or on any other ground, was required to be agitated before the execution court and not by a separate suit. Plaintiff had filed an application under Rule 89 of Order XXI of the Code, after the sale, by itself, would not have barred him from moving an application under Rule 97, before dispossession, or under Rule 99 of Order XXI, after delivery was effected and he was dispossessed from B schedule in execution of the decree. The plaintiff, who had been dispossessed from the B schedule properties under the decree in execution, had moved an application for annulling the report of the Amin, challenging that there was no delivery of B schedule property, before the execution court and dismissal of such application and later it being confirmed in revision by this court, also will in no way impinge his right to move an application under Rule 99 of Order XXI of the Code, if at all he had any right over the property independent of the judgment debtor. His revision had been dismissed by this court reserving his right to work out his remedies by way of appropriate proceedings, however, does not confer on him any authority to vindicate his claim over B schedule properties under the decree by way of a suit.

24. The court below has not considered the maintainability of the suit with reference to the Amendment Act of 1976 in relation to the amendments made to Rules 97 to 103 of Order XXI of the Code probably because it was not raised in the written statement, nor canvassed by the defendants. Where the provisions covered by Rules 97 to 103 of Order XXI is a complete Code by themselves, as has been held by the Apex Court, time and again, in the decisions referred to above, in the matter of adjudication over the disputes as between any person and the decree holder over a property covered by a decree for possession put in execution, where under the jurisdiction to decide such disputes vests with the execution court and none else, when the execution of a decree has led to a court sale and dispossession of the claimant, only an application under Rule 99 of Order XXI, would lie, if the applicant is so entitled to. A suit by a third party before any court impeaching the correctness of the court sale, setting up any claim over the property covered cannot at all be entertained. As the very jurisdiction of a court to entertain a suit, under the circumstances indicated, is interdicted by the provisions covered by Rules 97 to 103 of the Code, the inescapable conclusion which follows is that the suit filed by the plaintiff in the present case was not maintainable and it ought to have been dismissed at the threshold. The exercise done by the court below on the materials placed to find that the sale of B schedule properties under Ext.A1 decree was vitiated by fraud and material irregularity and illegality was quite unwarranted, and, in view of the conclusion reached that the suit is not maintainable, such finding has to be treated as of no consequence and devoid of any value. The decree passed by the court below, setting aside the sale of A and B schedule in execution of Ext.A1 decree with further directions for fresh sale and also the prohibitory injunction passed against the defendants is liable to be set aside and is ordered accordingly.

In the result, setting aside the decree passed by the court below, the appeal is allowed. O.S.No.229/93 on the file of the Principal Sub Court, Kochi shall stand dismissed. Parties are directed to suffer their costs.

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