~ VANIYANKANDY BHASKARAN v. MOOLIYIL PADINHJAREKANDY SHEELA

ALTAMAS KABIR, J.1. Leave granted.

2Copy pinpoint2. An interesting question regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation G to Rule 101 thereof has been raised by Mr. M.K.S. Menon, ;..,. learned counsel for the appellant. In order to appreciate his sub- missions, it is necessary to briefly set out the facts of the case giving rise to such question. H

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3Copy pinpoint3. The appellant, who was the original owner of the suit property along with the building erected thereupon, allegedly r 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 prop- B erty 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, c OS No.176 of 1982 was instituted by the Bank against the ap- pellant for recovery of the amounts due, before the Subordinate Court, Thalasherry, in which the suit property was attached.

4Copy pinpoint4. In 1990, OS 239 of 1990, filed by the respondent No.1 before the Subordinate Court, Tha!asherry, for recovery of the D suit property on the 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 x during the pendency of the appeal, the respondent No.1 filed RCP No. 292 of 1993 against the wife of the appellant under · E Sections 11 (2)(b) and 11 (3) of the Kera la 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 build- ing was also required by her for her own use and occupation.

5Copy pinpoint5. 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, be- ing RCA No. 197 of 1994, filed by the respondent No.1 before the Rent Control Appellate Authority from the order of the Rent G 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"d April 2004, by a common judgment delivered in AS No.609 of 1992 and CRP No. 2532 of 1996, whereby the title H of the appellant in respect of the suit property was upheld and

VANIYANKANDY BHASKARAN v. MOOLIYIL PADINHJ- 393 AREKANDY SHEELA [ALTAMAS KABIR, J.]

4- the order passed in RCA No.197 of 1994 was confirmed. The A · 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 Proceed- ings No.407 of 2004 seeking the appellant's eviction and deliv- B ery of possession of the suit premises. The appellant's wife en- -,.. tered 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 appel- lant, the Court ordered delivery to be effected with Police help on c 18th July, 2005. Thereafter, attempts were made to settle the matter and the respondent also agreed to withdraw the execution pro- ceedings unconditionally. According to the appellant, although, the respondent had agreed to withdraw the execution proceed- ings, the same was never withdrawn, which compelled the ap- 0 pellant 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.292of1993. Inasmuch as, such prayer for injunction was allowed by the learned Subordinate Judge, the respondent challenged the same before the High Court. E

6Copy pinpoint6. On behalf of the respondent herein, who was the appel- lant 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 de- cree legally obtained could not be stalled merely on the basis of F ' l f\ a claim made by the husband of the judgment-debtor on the basis of an unregistered agreement alleged to have been ex- ecuted 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 G genuine and had shifted the burden of proving the said agree- '!-"' , ment 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 H

p. 394

A 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 de- cree obtained by her. The High Court, therefore, came to the conclusion that the injunction granted by the Trial Court in favour B 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.

7Copy pinpoint7. It is in the aforesaid background that Mr. Menon urged c that the provisions of Rule 104 of Order 21 of the Code of Civil Procedure were required to be considered.

8Copy pinpoint8. Since we shall be considering the effect of the afore- said Rule, the same is set out hereinbelow:- D "Order XX!. 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 ·x 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 E 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."

9Copy pinpoint9. Mr.. Menon submitted that the said provision was not there in the Code of Civil Procedure in its original form and was ,., F included by amendment with effect from 1st February, 1997 to- )-·' gether with ~ules 98_ to 103, 105 and 106 of Order XXI.

10Copy pinpoint10. 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 t~ enable G 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.

11Copy pinpoint11. Mr. Menon submitted that the amended provisions of H Order 21 of the Code provided for a scheme by which any ob-

VANIYANKANDY BHASKARAN v. MOOUYIL PADINHJ- 395 AREKANDY SHEELA [ALTAMAS KABIR, J.]

struction to the execution of a decree giving rise to questions A ~ relating to right, title or interest in the suit property, arising be- tween the parties to a proceeding, on an application under Rule 97 or Rule 99 or their representative and relevant to the adjudica- tion of the application, is to be determined by the Court dealing with the application and not by a separate suit. The said provi- 8 sion contained in Rule 101 has been referred to in Rule 104 which indicates that any order made under Rule 101 or Rule 103 would ~ I 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 proceed- c ingswere commenced on 3rct 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. D 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, ·-x 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 E 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.181of2005.

12Copy pinpoint12. Appearing for the respondent, Mr. Vishwanathan, on F the other hand, submitted that the submission regarding the i." applicability of Rule 104 of Order 21 of the Code of Civil Proce- dure 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 G 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. H l

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13Copy pinpoint13. Mr. Viswanathan submitted that since the eviction pro- ~ ceedings against the appellant's wife had reached its final stages, the appellant raised a new claim based on an unregis- tered document to stall the execution of the decree for posses- sion made as far back as in 1990.

14Copy pinpoint14. The submissions made on behalf of the appellant re- garding 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 c 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 sub- ject 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 commence- ment of the execution proceedings, the provisions of Rule 104 of )( Order 21 of the Code will not apply to this case.

15Copy pinpoint15. 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.

16Copy pinpoint16. 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 ·r the respondent No.1 in contravention of Section 103 of the In- dian Evidence Act, 1872.

17Copy pinpoint17. 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/-.

N.J. Appeal dismissed. H '