Vaniyankandy Bhaskaran vs Mooliyil Padinhjarekandy Sheela

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3. The appellant, who was the original owner of the

suit property along with the building erected

thereupon, allegedly took a loan of Rs.50,000/-

from the husband of the respondent No.1 and

under the guise of security for the loan the

appellant was made to execute a conveyance in

respect of the suit property measuring 88 cents

in favour of the respondent No.1 on 1st October,

1986. According to the appellant, on the same

day his wife was also made to sign on a blank

paper, which was later on converted into a Rent

Deed. It also appears that on account of another

loan taken by the appellant from the Syndicate

Bank, OS No.176 of 1982 was instituted by the

Bank against the appellant for recovery of the

amounts due, before the Subordinate Court,

Thalasherry, in which the suit property was

attached.

4. In 1990, OS 239 of 1990, filed by the

respondent No.1 before the Subordinate Court,

Thalasherry, for recovery of the suit property on

the strength of the conveyance executed in her 3

favour, was decreed. An appeal was preferred

therefrom by the appellant before the High Court,

being AS No.609 of 1992, and during the pendency of

the appeal, the respondent No.1 filed RCP No. 292

of 1993 against the wife of the appellant under

Sections 11(2)(b) and 11(3) of the Kerala Buildings

(Lease and Rent Control) Act, 1965, on the ground

of default in payment of rent for the suit building

since August, 1989. An additional ground was also

taken by the respondent No. 1 claiming that the

building was also required by her for her own use

and occupation.

5. The said Rent Control Petition was dismissed by

the Rent Control Court on the ground that the title

in relation to the building was in dispute in OS

No.239 of 1990. An appeal, being RCA No. 197 of

1994, filed by the respondent No.1 before the Rent

Control Appellate Authority from the order of the

Rent Control Court, was allowed and eviction was

ordered. The wife of the appellant thereupon filed

a revision petition before the High Court, being

CRP No.2532 of 1996, which was dismissed on 2nd 4

April 2004, by a common judgment delivered in AS

No.609 of 1992 and CRP No. 2532 of 1996, whereby

the title of the appellant in respect of the suit

property was upheld and the order passed in RCA

No.197 of 1994 was confirmed. The appellant's wife

was given two months' time to pay the arrears of

rent, failing which the respondent was given leave

to take steps for execution of the order. Since

the arrears were not paid within the stipulated

time, the respondent No.1 filed Execution

Proceedings No.407 of 2004 seeking the appellant's

eviction and delivery of possession of the suit

premises. The appellant's wife entered appearance

before the Executing Court, which ordered delivery

of possession of the suit premises to the

respondent on 2nd April, 2005. Since such delivery

was resisted by the appellant, the Court ordered

delivery to be effected with Police help on 18th

July, 2005. Thereafter, attempts were made to

settle the matter and the respondent also agreed to

withdraw the execution proceedings unconditionally.

According to the appellant, although, the 5

respondent had agreed to withdraw the execution

proceedings, the same was never withdrawn, which

compelled the appellant to file OS No. 181 of 2005

and also for an injunction to prevent the eviction

of the appellant in Execution Proceedings No.497 of

2004 in RCP No.292 of 1993. Inasmuch as, such

prayer for injunction was allowed by the learned

Subordinate Judge, the respondent challenged the

same before the High Court.

6. On behalf of the respondent herein, who was the

appellant before the High Court, it was contended

that when her title to the scheduled property and

the building had been upheld and the eviction had

also been ordered, such execution of the decree

legally obtained could not be stalled merely on the

basis of a claim made by the husband of the

judgment-debtor on the basis of an unregistered

agreement alleged to have been executed by the

respondent on a stamp paper purchased in her name.

The High Court observed that the Trial Court had

simply proceeded on the basis that the agreement in

question was genuine and had shifted the burden of 6

proving the said agreement to be a manufactured

document on the respondent. The High Court,

therefore, took the view that in order to prevent

the respondent from obtaining delivery of the

possession of the suit premises in the execution

proceedings, the appellant had colluded with his

wife, the judgment-debtor, in instituting the suit

for specific performance and to obtain an

injunction therein to restrain the respondent from

enjoying the benefits of the decree obtained by

her. The High Court, therefore, came to the

conclusion that the injunction granted by the Trial

Court in favour of the appellant herein was highly

irregular and deserved to be set aside. The

injunction petition filed by the appellant in OS

No.181 of 2005, in the Court of Subordinate Judge,

Thalasherry, was therefore, dismissed.

7. It is in the aforesaid background that Mr.

Menon urged that the provisions of Rule 104 of

Order 21 of the Code of Civil Procedure were

required to be considered.

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8. Since we shall be considering the effect of the

aforesaid Rule, the same is set out hereinbelow:-

"Order XXI. Rule 104.- Order under Rule 101 or Rule 103 to be subject to the result of pending suit. - Every order made in Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property."

9. Mr. Menon submitted that the said provision was

not there in the Code of Civil Procedure in its

original form and was included by amendment with

effect from 1st February, 1997 together with Rules

98 to 103, 105 and 106 of Order XXI.

10. Mr. Menon submitted that in order to curtail

the delay in executing the decree for possession of

immovable property, the amended Rules were brought

on the Statute book to enable the Executing Court 8

itself to decide claims of title which might be

raised in execution proceedings without filing of a

separate suit for the said purpose.

11. Mr. Menon submitted that the amended provisions

of Order 21 of the Code provided for a scheme by

which any obstruction to the execution of a decree

giving rise to questions relating to right, title

or interest in the suit property, arising between

the parties to a proceeding, on an application

under Rule 97 or Rule 99 or their representative

and relevant to the adjudication of the

application, is to be determined by the Court

dealing with the application and not by a separate

suit. The said provision contained in Rule 101 has

been referred to in Rule 104 which indicates that

any order made under Rule 101 or Rule 103 would be

subject to the result of any suit that may be

pending on the date of commencement of the

proceeding in which such order is made. According

to Mr. Menon, although the execution proceedings

were commenced on 3rd November, 2004, and the suit 9

for specific performance was filed by the appellant

on 27th August, 2005, the actual order was passed on

the application under Rule 97 by the Executing

Court on 19th December, 2005, after the suit had

been filed by the appellant. In other words,

according to Mr. Menon, the suit filed by the

appellant was pending on the date when the order

under Rule 97 and Rule 98 was made and would,

therefore, be subject to the provisions of Rule 104

and would have to await the outcome of the suit for

specific performance filed by the appellant. Mr.

Menon urged that the High Court had erred in

relying on the provisions of Rule 2 of Order 21 of

the Code in setting aside the order of injunction

passed by the learned Subordinate Judge on the

application for injunction filed by the appellant

in OS No.181 of 2005.

12. Appearing for the respondent, Mr. Vishwanathan,

on the other hand, submitted that the submission

regarding the applicability of Rule 104 of Order 21

of the Code of Civil Procedure to the facts of this 10

case was wholly misconceived since the execution

proceedings had been commenced long before the

appellant's suit for specific performance was

filed. While the respondent's suit for recovery of

possession was decreed in 1990, the execution

proceedings for executing the decree was commenced

on 3rd November, 2004, and the appellant filed his

suit for specific performance about ten months

later on 27th August, 2005.

13. Mr. Viswanathan submitted that since the

eviction proceedings against the appellant's wife

had reached its final stages, the appellant raised

a new claim based on an unregistered document to

stall the execution of the decree for possession

made as far back as in 1990.

14. The submissions made on behalf of the appellant

regarding the applicability of Rule 104 of Order 21

of the Code has substance and merits consideration

in an appropriate case, but they do not justify

interference with the order of the High Court in 11

the facts of this case. The suit filed by the

appellant for specific performance of contract was

considerably later in point of time than the

commencement of the execution proceedings and, in

any event, the language of Rule 104 is clear and

unambiguous that any order made under Rule 101 or

Rule 103 would be subject to the result of a suit

pending on the date of commencement of the

proceeding in which orders were made under Rule 101

or 103. Since the appellant's suit was filed long

after the commencement of the execution

proceedings, the provisions of Rule 104 of Order 21

of the Code will not apply to this case.

15. We cannot also find any fault with the views

expressed by the High Court in relation to the

provisions of Order 21 Rule 2 of the Code regarding

adjustment of the decree in terms of an oral

settlement alleged to have been arrived at between

the parties on 21.2.2005.

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16. Furthermore, we also agree with the High Court

that the burden of proving that the Agreement

relied upon by the appellants was manufactured had

been wrongly shifted upon the respondent No.1 in

contravention of Section 103 of the Indian Evidence

Act, 1872.

17. We, therefore, find no reason for disturbing

the order of the High Court impugned in this appeal

on any of the grounds urged on behalf of the

appellant. The appeal, therefore, fails and is

dismissed, with cost accessed at Rs.10,000/-.

......................J. (Altamas Kabir)

......................J. (Markandey Katju)

New Delhi

Dated : October 14, 2008