SUPREME COURT OF INDIA

Vaniyankandy Bhaskaran

Vs.

Mooliyil Padinhjarekandy Sheela

C.A.No.6103 of 2008

(Altamas Kabir and Markandey Katju JJ.)

14.10.2008

JUDGMENT

Altamas Kabir, J.

1. Leave granted.

2. An   interesting question   regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to Rule 101 thereof has been raised by Mr. M.K.S. Menon, learned counsel for the appellant. In order to appreciate his submissions, it is necessary to briefly set out the facts of the case giving rise to such question.

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 onthe    strength     of  the conveyance executed  in her 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 2^nd 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 18^th 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 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 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.

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 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 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 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 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.

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/-.