O R D E R
Leave granted.
Though the respondents have been served, the second respondent has filed a photocopy of the Power of Attorney on behalf of respondent Nos.1 and 3 to 6 but when the Registry directed him to produce the original he failed to do the same. He is also not present in the Court. One Shyam Lal, son of Prabhu Lal Kayasth had laid the suit for specific performance; the Civil Judge dismissed the suit but on appeal No.16/1973 by judgment and decree dated October 18, 1973, the suit was decreed as under:
"Appeal is accepted with cost.
Judgment and decree under appeal is
set aside and suit for specific
performance of contract is decreed
with costs that defendants as per
contract Ex.1 at 1.9.66 shall
execute sale deed within 3 months
and plaintiff shall pay the balance
sum to the defendant in the said
period, otherwise plaintiff shall
be entitled to get the sale deed
executed of the dispute property as
per the law depositing the balance
amount in the court within two
months."
In the suit there was prayer for specific performance with possession of the property in prayer 1 thus:
"It be decreed that defendants
should performs their part of the
contract regarding the land and for
this purpose get the sale deed
registered after receiving a sum of
Rs.1100/- and handover the
possession of the disputed house to
the plaintiff." Under Section 22(1) of the Specific Relief Act, 1963, notwithstanding anything contained in Civil Procedure Code, the plaintiff suing for the specific performance of a contract for transfer of immovable property may, in an appropriate case, ask for possession or partition with specific possession of the property, in addition to such specific performance. Sub-section (2) puts fetters on the power of the court to grant such relief without there being the relief specifically claimed in the plaint. As seen in the decree, though prayer for possession was claimed, no decree for possession was granted which had become final.
It would appear that in execution of the decree the legal representatives of the decree-holder sought to dispossess the appellant from the property said to be in his possession. Apprehending his dispossession, the appellant had filed another suit for injunction based on possessory title obtained an adinterim injunction on July 2, 1991 as under:
"Counsel for the applicant present.
The Presiding Officer has been
transferred. Notice be issued to
non-applicant on filing the process
fee. File be Put up on ...... After
writing this, non-applicant No.2
Subhash Saxena appeared and
informed the court that he has not
received copy of stay application.
Copy of stay application is given
to him today. Rest of the
applicants Nos. 1, 3, 4, 5 and 6 be
summoned through notices on filing
the Registry fees and other
expenses. Meanwhile non-applicant
No.2 would not dispossessed
applicant Babu Lal from the
disputed house (except the decree
of the court). Put file on
17.8.91." We are informed that the injunction is still subsisting.
In the execution application filed under Order 21 Rule 32 of the CPC the appellant filed an objection on the ground that he could not be dispossessed. It is not in dispute that the appellant was not a party to the decree for specific performance. His objection was over-ruled by the executing Court holding that since he had not been dispossessed, application under Order 21 Rule 97 is not maintainable. That view was affirmed by the High Court in the impugned order dated May 9, 1995 in CRP No.656/94 by the High Court of Rajasthan at Jaipur Bench. Thus, this appeal by special leave.
The controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain & Anr. [(1995) 1 SCC 6] considered the controversy and had held that even an application filed under Order 21 Rule 35(3) or one filed under Section 47 would be treated as an application under Order 21 Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus:
"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
25.5.1979 was made, the 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
applications 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 obstruction or resistance
caused by Satyanarain under Order
21, Rules 35(3) and Order 21, Rules
101 and 102 of CPC". It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. 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 subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.
The appeal is accordingly allowed. The executing Court is directed to enquire into the matter and record a finding after giving opportunity to the parties. No costs.