Allowed

Sathyam Meadows Apartment, v. Bathenapalli Chenna Reddy

Andhra Pradesh HC5 Dec 2022CRP/1205/2021

Case brief

AI extract

What is this about?

The High Court allowed a revision petition challenging an execution court order that returned a third party’s petition under Order 21 Rule 97 CPC. Upholding Supreme Court precedents, the court held that third parties claiming independent rights can seek adjudication under Rule 97 before losing possession and set aside the lower court's procedural rejection to force adjudication on merits.

What did the court decide?

Impugned order dated 02.11.2021 returning the petition under Order 21 Rule 97 CPC set aside; execution court directed to register and dispose of petition on merits.

Sathyam Meadows Apartment, Vs Bathenapalli… — Execution and Attachment | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.1205 of 2021

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ORDER:

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This Civil Revision Petition is filed under Section 115 CPC challenging the order dated 02.11.2021 petition CF No.6597 filed under Order 21, Rule 97 CPC in E.A.No.106 of 2019 in E.P.No.40 of 2016 in O.S.No.225 of 2012 on the file of the Court of III Additional District Judge, Tirupati.

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Heard Sri P.Hemachandra, learned counsel for the petitioner and Sri T.V.Jaggi Reddy, learned counsel for R-1.

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The facts leading to filing of this revision petition are briefly as follows:

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The revision petitioner is the claim petitioner and the first respondent is the DHr/plaintiff. The second respondent is the JDr/defendant. The plaintiff filed suit for specific performance of the decree dated 04.02.2014 against the defendant and the suit was decreed for specific performance on 04.02.2014 after the defendant remained ex parte . E.P.No.40 of 2016 was filed by the plaintiff under Order 21, Rule 34 CPC for execution of the registered sale deed. The petition was allowed. The details of the property covered by the decree are as follows:

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A-SCHEDULE :

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All the piece and parcel of the immovable property in Sy.No.480 situated at Chittoor District, Sri Balaji Registration District – Tirupati sub-District, Tirupati Mandal, Tirupati Town, Municipal 18^th ward, Prasanthi Nagar, in all measuring a gross extent of 3012.17 square meters after providing 73.67 square meters gifted by the land owners for formation of road, 3483.5 square yards or 31.351 square feet.

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B-SCHEDULE :

Undivided share, right title and interest in the immovable more fully mentioned and described in the schedule A above to an extent of Ac.72.02.

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C-SCHEDULE :

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The office apartment 30 X 30 feet = 900 square feet (100 square yards) and a store room 10 X 20 feet = 200 feet (22.22 square yards) on the stilt area of 50X 50 = 2500 square feet (277.77 square yards) buil up area of 1100 square feet and non built area of 1400 square feet around total area of 2500 square feet in the multistoried complex known “Sathyam Meadows” constructed at property in Sy.No.480 situated at Chittoor District, Sri Balaji Registration District, Tirupati Sub-District, Tirupati Mandal, Tirupati Town Municipal Area 18^th ward Prasanth Nagar inclusive of proportionate share in the common area bounded on :

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East : remaining stilt area or ground floor, Shiv Shakthi Kalyana Mandapam houses bearing D.No.18-7-1, 1B, 2, 3, 4& 5.

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West : Houses of Sapthagiri Nagar sold by Thakkillapadu Munaswamy Naidu

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North : a block and my remaining stilt area of ground floor.

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South : 40 feet vide i.e., Prasanth Nagar Main road.

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In between this 2500 square feet (277.77 square yards) stilt area or ground floor in which constructed office apartment and store room accordingly in approved building plan of B.A.No.258/05/G2, dt: 08-06-2006 by Tirupati Municipality, Tirupati.

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When the Amin went to the suit schedule properties for effecting delivery of possession in favour of DHr, the claim petitioner resisted the delivery. Later, the claim petitioner filed petition under Order 21, Rule 97 CPC claiming that the defendant is a developer and entered into a registered joint development agreement with general power of attorney dated 14.09.2006 with the owners

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R.Venkata Prasad and others to construct and develop apartments in an extent of 3012.17 square meters or 32411 square feet in S.No.480 of Prasanth Nagar Residential area, 18^th Ward, Tirupati Municipal Town, Chittoor District. The land owners empowered the developers to develop the land by constructing multi storied building, consisting of cellar, stilt first floor to 5^th floor for which the defendant/developer obtained permission from the Tirupati Muncipality vide proceedings in D.Dis No.BA.No.25/G2/2005 dated 08.06.2006 and as per the approved plan the cellar and the stilt floors are parking areas purely kept common for all the purchasers of the flats. The decree holder obtained an ex parte decree in the suit basing on an alleged agreement of sale dated 28.12.2009 as though the defendant executed it. The suit schedule property is an extent of 2500 square feet consisting of 1100 square feet built up area of store room and the remaining is nonbuilt up area. The EP schedule property is situated in the stilt area in the multi storied complex the claimant is the Flat Owners Welfare Association the claimant is in exclusive possession of the common area for the benefit of all flat owners. Therefore, there is no separate property in existence as mentioned in EP schedule. The Secretary of the Association purchased semi furnished Flat 314 in the third floor under the registered sale deed vide document No.5707/2008 dated 31.10.2008. The defendant sold out all the semi furnished flats in favour of the third parties along with undivided share. He left the building unfinished and escaped from Tirupati. Therefore, all the flat owners formed an association and got it registered as Satyam Apartments Flat Owners Association under the Societies Act. They elected the General Secretary and authorized him to do all such acts as are necessary, including the court matters for the welfare of its members. All the flat owners unanimously passed resolution and engaged third party contractor to

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complete the work left unattended. All the owners occupied their respective flats after completion of the work. They occupied the cellar and stilt area as common parking area while so, in the months of August and October, 2021, in the presence of the Secretary and other flat owners, a Court Amin along with some unknown persons came to the parking area and tried to deliver the schedule mentioned property with the help of police. Therefore, the Secretary and other flat owners interfered and objected the delivery stating that the property is situated in the stilt area and used for the purpose of parking and other common purposes of all the flat owners. When the claimant resisted the delivery of property, the plaintiff/DHR filed petition under Order 21, Rule 35 CPC. The other averments made in the claim petition are not necessary for the purpose of adjudication of this petition. Finally, the claim petitioner prayed to adjudicate and declare that the schedule mentioned property is a common parking area belonging to all the flat owners of the Sathyam Meadows Association and the same is not liable for sale and costs.

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The execution Court returned the said petition vide its order dated 02.11.2021 observing that the petition does not come under two circumstances covered by order 21, Rule 97 they 1) DHR for possession of immovable property, 2) the purchaser of any such property sold in execution of the decree resisted or obstructed by any person in obtaining possession of the property, but according to the claim petitioner it set up a separate right over the schedule property. The Court further observed that an application under Order 21, Rule 97 CPC can be filed by an objector who falls under either of the illustrations given above and thereafter such application should be adjudicated in accordance with Rule 98 and

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therefore the claim petition does not come under the purview of Order 21, Rule 97 CPC. With such observation, the application has been returned.

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Challenging the same, the present petition is filed under Section 115 CPC contending that the Supreme Court held in Brahmdeo Chaudary Vs Rishikesh Prasad Jaiswal¹ that a stranger can get his claim adjudicated even prior to losing possession to decree holder by making application under Order 21, Rule 97 CPC. The revision petitioner further placed reliance on the decision of the Supreme Court in Akshan Devi Vs Phulwasi Devi² , wherein it was held that the provisions of Order 21, Rules 97 and 99 CPC have been widely and liberally construed to enable the execution court to adjudicate the inter se claims of the decree holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. Further it is contended that once resistance is offered by the claimant/petitioner, purported to be stranger to the decree, the remedy available to the DHr is to file an application under Order 21, Rule 97(1), but not to file petition under Order 21, Rule 35 CPC for removal of resistance. The revision petitioner further referred to the decision of the Supreme Court in Bhanwar Lal Vs Satyanaraian³ , wherein it was 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 CPC and an adjudication is required to be conducted under Rule 98.

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The learned counsel further submitted that if the third person sets up title independently, a petition under Order 21 Rule 97 CPC is maintainable but if the

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1 AIR 1997 SC 856

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2 AIR 2004 SC 511

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3 (1995)1 SCC 6

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third person claims right through party to the proceeding, the petition under Order 21, Rule 97 CPC is not maintainable and placed reliance on the decision of this High Court in Kadali Pullayya Vs Kadali Narasanna and others⁴ .

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The learned counsel for the petitioner submitted that this decision has application only where the property is purchased pending the litigation, but in the present case the property was purchased in the year 2008, whereas the suit was filed in the year 2012.

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Since it is observed by the execution Court that the third party cannot file petition under Order 21, Rule 97 CPC, it is apropos refer the provision which reads as follows:

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O. 21, R. 97: Resistance or obstruction to possession of immovable property:-

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

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

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The Supreme Court in the case of Brahmdeo Chaudary (supra) held that a third party can maintain a petition under Order 21, Rule 97 CPC which reads as follows:

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“5. In short the aforesaid statutory 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

4 2001(5) ALT 8 (SB)

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at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 Sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI, Rule 99. This view of the High Court on the aforesaid Statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. 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. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of

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enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid 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 it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of noncompliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and 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 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

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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.”

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The same view is taken subsequently by the Supreme Court in Shreenath and another Vs Rajesh and others⁵ .

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In the decision relied by the learned counsel for the respondent in the case of Kadali Pullayya (supra), what the High Court observed is that a person resisting delivery to invoke Order 21 Rule 97 CPC should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation in view of Section 52 of the Transfer of Property Act in fact the decision of the Supreme Court in the case of Shreenath (supra) has been followed in this decision. There is no conflict in the decisions rendered in the case of Kadali Pullayya (supra) and the decisions of the Supreme Court referred above. As such, it is beyond doubt that a petition under Order 21, Rule 97 CPC is maintainable by third parties. Thus, the execution Court has erred in returning the petition.

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The learned counsel for the respondent/plaintiff/DHr submitted that the revision petition under Section 115 CPC is not maintainable since the case has not been finally decided as the petition was returned and at the most of the petitioner may challenge the Order under Article 227 of the Constitution of India and placed reliance on the decision of the Supreme Court in the case of Surya Dev Rai Vs Ram Chander Rai and others⁶ . The proviso to Section 115(1) CPC refers that the High Court shall not, under this Section vary or reverse any order need, or any order

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5 AIR 1998 SC 1827

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6 2003(6) SCC 675

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deciding an issue, in the course of a suit or other proceeding except where the order, if it had been made in favour of party applying for revision would have finally disposed of the suit or other proceedings.

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In the present case, the execution Court, though returned, it has finally decided the point that a third party cannot file petition under Order 21, Rule 97 CPC. Therefore, the impugned order falls within the scope of Section 115 CPC.

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Insofar as maintainability of the revision petition before this Court is concerned, Section 115(1) CPC reads as follows:

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115. Revision.-

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(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

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(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

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(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

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Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.”

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In the case of Ram Das V Subhash Bakshi⁷ , it was held that ‘a case is

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decided’ when there is an adjudication on the rights or obligations or deligations of

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the parties in controversy and such adjudication may be in the nature of a decision

7 AIR 1977 HP 18

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expressy deciding those rights or obligations. It is further held that the adjudication may be such as to have the necessary effect of deciding those rights or obligations.

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Basing on such observations, in the case of Media Anasuyamma & Another V Choppeta Lakshmamma⁸ it was held that it is not always necessary that the rights or obligations must be expressly decided and that it is sufficient if an adjudication that has been made would have the necessary effect of deciding these rights or obligations.

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As can be seen from the above provision, it is clear that if a Subordinate Court appears to have failed to exercise the jurisdiction vested on it, a revision would definitely lie before the High Court. In the present case, since the execution Court has failed to exercise jurisdiction under Order 21, Rule 97 CPC and register the petition, it failed to exercise its jurisdiction. It is pertinent to refer the decision of the Supreme Court relied by the learned counsel for the respondent in case of Surya Dev Rai (Supra) wherein it is held that the power of High Court under Article 226 and 227 of the Constitution of India is in addition to the revisional jurisdiction conferred on it. It was held in the context that the curtailment of revisional jurisdiction of the High Court under Section 115 CPC by amendment Act 5 of 1999 does not take away its jurisdiction under Article 226 and 227 of India. Therefore, since in the present case, the case squarely falls within the scope of Section 115(1) CPC, the revision filed before this Court under Section 115 CPC cannot be challenged.

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8 AIR 1991(1) ALT 430

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In view of the foregoing discussion, the impugned order is liable to be set aside.

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In the result, the revision petition is allowed setting aside the order dated 02.11.2021 petition CF No.6597 filed under Order 21, Rule 97 CPC in E.A.No.106 of 2019 in E.P.No.40 of 2016 in O.S.No.225 of 2012 on the file of the Court of III Additional District Judge, Tirupati with a direction to the Execution Court to register the petition and dispose of the same on merits.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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_________________ B.S.BHANUMATHI, J

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Dt. 05-12-2022

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PNV

Sathyam Meadows Apartment, v. Bathenapalli Chenna Reddy

Case brief

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Sathyam Meadows Apartment, v. Bathenapalli Chenna Reddy

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