# Gaurav Arya & Ors v. The Civil Judge Hathras & Ors

- **Citation:** (2013) 3 ILRA 1390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-04
- **Case number:** Civil Misc. Writ Petition No.54960 of 2013
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-arya-ors-v-the-civil-judge-hathras-ors-42712
- **Pages:** 6

## Headnote

C.P.C. Order XXI, Rule-198, 101- Execution
of decree-petitioner raised objection-from
3 All] Gaurav Arya & Ors. Vs. The Civil Judge Hathras & Ors.
1391
Amin report-possession of petitioner proved
execution
court
committed
error
by
refusing request to lead oral evidence-in
view of law developed in Janaradan S.
Jaiswal Case-petitioner entitled to establish
and prove their rights-it can not be
dispense with unless objection decided
otherwise.

Held: Para-20
The impugned order dated 24.09.2013
passed by the Civil Judge (Sr. Division)
Hathras in RM-100 of 2013 arising out of
Execution Case No.15 of 1998 is set aside
and as already observed above he is
entitled to lead his oral and documentary
evidence. The Executing Court is required to
consider the application paper no.21-C-2 of
the petitioner in accordance with law
keeping in mind the amended provision of
Rule 101 of Order XXI CPC.

Case Law discussed:
2005(23) LCD 406; MHLJ 1969-0-512

## Text

1390 INDIAN LAW REPORTS ALLAHABAD SERIES
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batu yxk gqvk gS ;k ughaA eq>s ugha irk fd ?ksj
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ughaA bl izdkj izkFkhZ ds mijksDr lk{; ls fookfnr
lEifRr ij izkFkhZx.k dk dCtk Hkh lkfcr ugha gksrkA "

12. From the aforesaid extract of the
said order it is clear that the petitioners while
pursuing their application under Order 21
Rule 97 CPC have failed to bring any iota of
evidence that they are in possession and are
competent to obstruct the decree. This is not
a case where the petitioners obstructor are
sought to be dispossessed under Order 21
Rule 97 CPC and after adjudication to be
given possession again. This is a case where
the petitioners have failed to prove or even to
prima-facie indicate that they were ever in
possession of the property in question. Under
such circumstances, if the Appellate Court
grants an interim protection to the petitioners
staying the order of the Executing Court it
would amount to giving possession to the
petitioners of a property over which they are
not in possession. As such the case of
Brahm Dutt Chaudhary (Supra) and
Mool Chand Yadav (Supra) are not at all
applicable in the present case.

13. The appeal, admittedly is
pending and it is for the petitioners to
bring on record evidence to show that the
order of the Executing Court dated
31.07.2013
was
passed
on
wrong
assumption of facts if at all. The petitioners
have failed to bring before the Executing
Court
any
evidence
either
oral
or
documentary in support of their contention
that they are competent to obstruct the decree
by virtue of their possession. Even in this
writ petition there is no document to show
the possession of the petitioners except an
averment in paragraph 20.

14. Under such circumstances, the
rejection of the interim stay application by the
Appellate Court would not amount to visiting
of adverse civil consequences to the
petitioners' since they were not in possession.
There is no question of their being
dispossessed so as to say that by the impugned
order the civil consequences are adverse.

15. The writ petition has no merit. It
is, accordingly, dismissed.

16. No order is passed as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2013

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.54960 of 2013

Gaurav Arya & Ors.
 ...Petitioners
Versus
The Civil Judge Hathras & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Keshari Nath Tripathi, Sri P.K. Singh
Sri C.P. Gupta

Counsel for the Respondents:
Sri Sanjay Kumar Dubey, Sri Rahul Sahai

C.P.C. Order XXI, Rule-198, 101- Execution
of decree-petitioner raised objection-from
3 All] Gaurav Arya & Ors. Vs. The Civil Judge Hathras & Ors.
1391
Amin report-possession of petitioner proved
execution
court
committed
error
by
refusing request to lead oral evidence-in
view of law developed in Janaradan S.
Jaiswal Case-petitioner entitled to establish
and prove their rights-it can not be
dispense with unless objection decided
otherwise.

Held: Para-20
The impugned order dated 24.09.2013
passed by the Civil Judge (Sr. Division)
Hathras in RM-100 of 2013 arising out of
Execution Case No.15 of 1998 is set aside
and as already observed above he is
entitled to lead his oral and documentary
evidence. The Executing Court is required to
consider the application paper no.21-C-2 of
the petitioner in accordance with law
keeping in mind the amended provision of
Rule 101 of Order XXI CPC.

Case Law discussed:
2005(23) LCD 406; MHLJ 1969-0-512

(Delivered by Hon'ble Sanjay Misra, J.)

1. Heard Sri Keshari Nath Tripathi,
learned senior counsel assisted by Sri C.P.
Gupta, learned counsel for the petitioners and
Sri Rahul Sahai alongwith Sri S.K. Dubey,
learned counsel for the Respondents No.2 & 3.

2. It is informed by learned counsel
for the parties that the Respondents No.4
to 8 were the judgment debtor and are as
such not affected by any order passed in
this writ petition hence with consent of
learned counsels this writ petition is being
decided today itself.

3. This writ petition is directed against
the order dated 24.08.2013 passed in
Execution Case No.15 of 1998 arising out of
the Original Suit No.349 of 1983 whereby
the Executing Court has issued dakhal
parwana with police force as also the order
dated 18.09.2013 whereby the application
paper no.6-C filed by the petitioners in
proceedings under Order XXI Rule 97 CPC
for grant of interim protection has been
refused as also the order dated 24.09.2013
passed by the Executing Court in Misc. Case
No.RM-100 of 2013 also arising out of the
Execution Case No.15 of 1998 whereby the
application 21-C-2 made by the petitioners
for permission to lead oral evidence in their
support has been rejected.

4. According to Sri Tripathi, learned
senior counsel, the petitioners were not party
in Original Suit No.349 of 1983 which was
decreed in 1986. The appeal was dismissed in
1994 and the S.L.P. there against was also
dismissed on 12.08.1996. He submits that the
decree holder filed Execution Case No.15 of
1998 which was subsequently dismissed for
default on 13.01.2000 but restored in the year
2012. The petitioners claimed to be in
possession over the property in question by
virtue of it being let out to them on 15.09.1998
by the then decree holder. When the decree
was being executed after the execution case
had been restored in the year 2012 the
petitioners who claimed to be tenants of the
premises in question obstructed the decree
under Order XXI Rule 97 CPC and the Amin
report obtained by the Executing Court
indicated that the petitioners are in possession
over the property in question.

5. Learned counsel states that alongwith
the application under Order XXI Rule 97 CPC
the petitioners had made the application for
grant of interim injunction against their
dispossession which application 6-C was
rejected by the impugned order on 18.09.2013
and their application paper no.21-C-2 to lead
oral and documentary evidence has also been
rejected by the impugned order dated
24.09.2013.

6. The sum and substance of the
submission of learned counsel for the
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners is that when an application under
Order XXI Rule 97 CPC has been
entertained by the Executing Court and the
Amin Commission has reported that the
petitioners are in possession thereof they
cannot be summarily ejected in pursuance of
the
decree
and
an
adjudication
as
contemplated under Order XXI Rule 98 CPC
is to be done. The petitioners who are not the
judgment-debtors
cannot
be
first
dispossessed in proceedings under Order
XXI
Rule
97
CPC
and
thereafter
adjudication be done. He states that if that be
a circumstance and the petitioners are
dispossessed under Order XXI Rule 99 CPC
without adjudication of their rights under
Rule 98 of Order XXI CPC it shall be an
illegal act because in case under adjudication
it is found that the petitioners have a vested
right as tenant of the property in question let
out to them by the erstwhile decree holder
they would be entitled to be put in possession
again. He states that such a procedure does
not have the sanction of law that the
obstructor be dispossessed under Rule 99
and be repossessed after adjudication under
Rule 98 of Order XXI CPC.

7. Sri Rahul Sahai, learned counsel
for the respondent has contested the
submissions and has submitted that the
Executing Court is enjoined to adjudicate
the rights of obstructor under Order XXI
Rule 97 & 98 CPC. He states that the
interim protection which was claimed by
the petitioners by the application 6-C
could not have been granted by the
Executing Court and, therefore, the
impugned order dated 18.09.2013 is an
order passed in accordance with law. He
further
states
that
in
execution
proceedings the obstructor cannot be
allowed to lead oral or documentary
evidence and, therefore, the Executing
Court has rightly rejected his application
21-C-2 by the impugned order dated
24.09.2013.

8. Sri Rahul Sahai also defends the
impugned order dated 24.08.2013 to state
that the decree holder is entitled to dakhal
parwana and police force for the purpose
of possession as such he states that no
error
has
been
committed
by
the
Executing Court in passing the impugned
order dated 24.08.2013.

9. In support of his submission Sri
Rahul Sahai has placed reliance on a
decision of this court in the case of
Janardan
Singh
Jaiswal
Vs.
IVth
Additional
District
Judge,
Mirzapur
reported in 2005(23) LCD 406.

10.

Having
considered
the
submission of learned counsel for the
parties and perused the record, insofar as
the order dated 24.08.2013 is concerned,
the decree holder is no doubt entitled to
an order of dakhal parwana and police
force to execute the decree, however, such
dakhal parwana has to be executed in
accordance with law. Therefore, while not
interfering in the order dated 24.08.2013
passed by the Executing Court it is apt to
state that such a dakhal parwana can only
be executed in accordance with law and
since there is an application under Order
XXI Rule 97 CPC filed by the obstructor
to the decree the dakhal parwana has to
wait such adjudication of such an
application in accordance with law under
Order XXI Rule 98 CPC and till then the
dakhal parwana cannot be executed.

11. Insofar as the order dated
18.09.2013 is concerned, the application
of the petitioners for interim protection
appears to have been refused. Be that at it
may, even if the interim protection is not
3 All] Gaurav Arya & Ors. Vs. The Civil Judge Hathras & Ors.
1393
granted to the obstrutor petitioners they
cannot
be
dispossessed
unless
in
accordance
with
law,
therefore
no
interference is required in the impugned
order dated 18.09.2013.

12. Under Order XXI Rule 98 CPC,
it has been specifically provided that there
is to be a determination of all the
questions raised regarding right title or
interest in the property arising between
the parties to a proceeding under Order
XXI Rule 97 or 99 CPC. Therefore, to say
that the obstructor should be dispossessed
first under Rule 99 of Order XXI CPC
and then adjudication be made under Rule
101 and Rule 98 of Order XXI CPC
would be an incorrect proposition. When
the application under Order XXI Rule 97
is
pending
adjudication
before
the
Executing Court the obstructor petitioners
can only be dispossessed in accordance
with law. Para 14 of the judgment in
Janardan Singh Jaiswal (Supra) reads as
under:-

"In order to resist possession under
Order XXI Rule 95, C.P.C. the occupier
must establish his right to occupy the
property as a tenant. In the present case,
and that the facts and circumstances of
the case clearly establish that the
objector's father Sri Tej Narain Singh was
not the tenant of the property. The
petitioner did not become tenant on the
death of his father and there is no
evidence with regard to his tenancy. In
Deo Raj Dagra v. Gyan Chandra Jain,
1981 (2) ACC 615, the Supreme Court
held that where the objector claims to be
tenant, the question of validity or
otherwise of the tenancy may have to be
considered
and
determined
in
an
appropriate proceedings. Order XXI Rule
97, C.P.C. was amended and that Subrule
(2)
provides
that
where
any
application is made under Sub-rule (1) by
a person resisting and obstructing the
possession of immovable property made
by the holder of the decree for possession,
the Court shall proceed to adjudicate
upon the application in accordance with
the provisions herein contained. The
object of the amendment made by C.P.C.
(Amendment) Act, 1976 was to decide all
questions including the right of the
tenancy, in the execution proceedings
itself. The obstructor must prove not only
his possession but has also to establish
that he has a right to protect his
possession from the auction purchaser.
Where he claims tenancy, he must
establish the same. In Nooruddin v. K.L.
Anand (Dr.), (1995) 1 SCC 242, the
Supreme Court held that the scheme of
the Code clearly adumbrates that when an
application has been made under Order
XXI 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
persons claiming independent right, title
or interest in the immovable property and
an order in that behalf shall be made. The
determination shall be conclusive between
the parties as if it was a decree subject to
right of an appeal and not a matter to be
agitated by a separate suit. The object is
to render substantial justice and to
prevent resistance to a decree by a person
who has no right to occupy the property.
Adjudication
before
execution
is
a
sufficient remedy to prevent the fraud,
abuse of the process of the Court or
miscarriage of justice."

13. In this decision the Court has
clearly held that the obstructor must not
only prove his possession but he has also
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
to establish that he has a right to protect
his possession.

14. In the present case the
possession of the petitioner cannot be
disputed in view of the report of Amin
where he has been found in possession.
Insofar as establishing any right to protect
his possession is concerned, the same is
yet
under
adjudication
and
such
adjudication under the provisions of
Order XXI Rule 101 CPC has not yet
been done as such in view of the decision
in the case of Janardan Singh Jaiswal
(Supra) the petitioners obstructor are
entitled to an adjudication to establish a
right in the property in question and
protect their possession thereby.

15. Insofar as the decision of the
Trial Court in the order dated 24.09.2013
that no oral evidence can be permitted to
the petitioner obstructor is concerned, Sri
Rahul Sahai, learned counsel for the
respondent has placed reliance on a
decision of the Bombay High Court in the
case of Tarabai Vishwanath Sabins Vs.
National
and
Grindlays
Bank
Ltd.
reported in MHLJ 1969-0-512 and placed
reliance
on
paragraph
3
therein.
According to him, it was clearly held by a
Division Bench of the Bombay High
Court that the proceedings under Order
XXI Rule 97 CPC to Rule 102 CPC are
summary proceedings and not intended
for decisions to be made by leading oral
and documentary evidence tendered on
behalf of the parties. He therefore states
that the impugned order dated 24.09.2013
is in accordance with law and hence
requires no interference.

16. Insofar the above submission is
concerned, the said decision of the
Bombay High Court was a decision
delivered in the year 1968. The Rule 101
of Order XXI CPC has undergone change
by an amendment in the year 1976. Rule
101 as it reads prior to 1976 amendment
is quoted hereunder:-

101. Where the Court is satisfied that
the applicant was in possession of the
property on his own account or on account of
some person other than the judgment- debtor,
it shall direct that the applicant be put into
possession of the property.

17. Rule 101 as amended after 1976
is quoted hereunder:-

"All questions (including questions
relating to right, title or interest in the
property) arising between the parties to a
proceeding on an application under rule
97 or rule 99 or their representatives, and
relevant to the adjudication of the
application, shall be determined by the
court dealing with the application, and
not by a separate suit and for this
purpose, the court shall, notwithstanding
anything to the contrary contained in any
other law for the time being in force, be
deemed to have jurisdiction to decide
such questions."

18. The aforesaid amendment indicates
that all disputes are to be settled by the
Executing Court under Order XXI Rule 101
CPC. In the present case the petitioners are
not the judgment debtor. The petitioners are
non-party to the Original Suit and the
petitioners claim to be in possession of the
property in question by virtue of it being let
out to them by the erstwhile decree holder.
Therefore this is not a case of an obstruction
by a judgment debtor or a person claiming
through the judgment debtor. Under such
circumstances, the questions which have to
be determined under Rule 101 of Order XXI
3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1395
CPC are with relation to the petitioner who is
in possession of the property at the instance
of the erstwhile decree holder and are to be
determined by the Executing Court which
shall have jurisdiction to decide such
questions. Therefore in view of the amended
provision of Rule 101 of Order XXI CPC the
court below could not deny an opportunity to
the petitioners obstructor to lead oral or
documentary evidence for the purpose of
proving his right, title and interest which
according to the petitioners has been disputed
and denied by the respondents.

19. In view of the aforesaid, the
impugned order dated 24.09.2013 passed by
the Executing Court in RM-100 of 2013
arising out of Execution Case No.15 of 1998
cannot
be
sustained.
The
petitioners
obstructor who is in possession through
erstwhile decree holder is therefore entitled
to lead oral and documentary evidence for
the purpose of prove of his right and interest
before the Executing Court. In view of the
aforesaid circumstances, the writ petition is
disposed of as under:-

20. The impugned order dated
24.09.2013 passed by the Civil Judge (Sr.
Division) Hathras in RM-100 of 2013 arising
out of Execution Case No.15 of 1998 is set
aside and as already observed above he is
entitled to lead his oral and documentary
evidence. The Executing Court is required to
consider the application paper no.21-C-2 of
the petitioner in accordance with law keeping
in mind the amended provision of Rule 101
of Order XXI CPC.

21. The petitioner cannot be
dispossessed unless the questions that
have arisen in his application under Order
XXI Rule 97 CPC are decided under Rule
101 of Order XXI CPC and otherwise in
accordance with law.

22. It is made clear that this Court
has not adjudicated on the claim made by
the petitioner of having status of a tenant
in the property and that has to be done by
the appropriate Court.

23. As prayed by learned counsel for
the parties, since the matter is quite old it
is expected that the Executing Court shall
decide it as expeditiously as possible
without
granting
any
unnecessary
adjournments to any of the parties and in
accordance with law.

24. No order is passed as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2013

BEFORE
THE HON'BLE V.K.SHUKLA, J.
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No.55108 of 2013

Raj Kumar Singh

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Amit Kr. Rai

U.P.Panchayat Raj(Removal of PradhansUP-Pradhan
&
Members)enquiry
Rules
1997-Rule
3,4,6(16)-Petition
against
revocation
of
ceasing
financial
&
administrative
power
of
pradhan-based
upon
enquiry
report-challenged
by
complainant-whether can be treated as
'aggrieved person'?-held-No-objector can
participate in regular enquiry but can not
challenge the revocation of suspension
order-petition dismissed.

Held: Para-35