Attachment of respondent's property in rcr
mrgop
(Querist) 10 March 2012
This query is : Resolved
I've gone through the question asked by mr.Kavkaz on same topic, and would like to further know if anyone could give a judgement ordering the attachment of respondent's property in failure to comply with rcr order.
Can husband as petitioner file for attachment of wife's property in case of the failure of rcr execution?
Adv.R.P.Chugh
(Expert) 10 March 2012
Dear Querist,
The law in that regard is clear - Or.21 Rule 32/33 CPC, and it does not make any distinction between wife or husband as respondent.
No Ruling required when the law is unambigous
ajay sethi
(Expert) 10 March 2012
agree with bharat
Raj Kumar Makkad
(Expert) 10 March 2012
Equivalent Citation: 1996IIAD(SC)330, AIR1996SC2050, JT1996(2)SC716, (1996)2MLJ29(SC), 1996(2)SCALE438 (1996)3SCC154,
[1996]2SCR763, 1996(1)UJ700(SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 3765 of 1996 (arising out of S.L.P.(C) No. 13688 of 1995)
Decided On: 16.02.1996
Appellants: Babulal
Vs.
Respondent: Raj Kumar and Others
Hon'ble Judges: K. Ramaswamy and G.B. Pattanaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Tapas Ray and Subject: Civil
Acts/Rules/Orders:
Civil Procedure Code (CPC), 1908 - Section 47 - Order 21, Rules 32, 35, 63, 97, 98 and 103; Specific Relief
Act, 1963 - Section 22(1);
Case Referred:
Bhanwar Lal v. Satyanarain MANU/SC/0072/1995
Prior History:
From the Judgment and Order dated 09.05.95 of the Rajasthan High Court in S.B.C.R.P. No. 656 of 1994
Citing Reference:
Bhanwar Lal v. Satyanarain and Anr. MANU/SC/0072/1995 Relied on
ORDER
K. Ramaswamy, J.
1. Leave granted.
2. Though the respondents have been served, the second respondent has filed a photocopy of the power of
Attorney on behalf of respondent Nos. 1 and 3 to 6 but when the Registry directed him to produce the original
he failed to do the same. He is also present in the Court. One Shyam Lal, son of Prabhu Lal Kayasth had laid
the suit for specific performance; the Civil Judge dismissed the suit but on appeal No. 16/1973 by judgment and
decree dated October 18, 1973, the suit was decreed as under:
Appeal is accepted with cost. Judgment and decree under appeal is set aside and suit for specific performance
of contract is decreed with costs that defendants as per contract Ex. 1 at 1.9.66 shall execute sale deed within 3
months and plaintiff shall pay the balance sum to the defendant in the said period, otherwise plaintiff shall be
entitled to get the sale deed executed of the dispute property as per the law depositing the balance amount in
the Court within two months.
3. In the suit there was prayer for specific performance with possession of the property in prayer 1 thus:
It be decreed that defendants should perform their part of the contract regarding the land and for this purpose
get the sale deed registered after receiving a sum of Rs. 1100 and handover the possession of the disputed
house to the plaintiff.
4. Under Section 22(1) of the Specific Relief Act, 1963, notwithstanding anything contained in Civil Procedure
Code, the plaintiff suing for the specific performance of a contract for transfer of immovable property may, in an
appropriate case, ask for possession or partition with specific possession of the property, in addition to such
specific performance. Sub-section (2) puts fetters on the power of the Court to grant such relief without there
being the relief specifically claimed in the plaint. As seen in the decree, though prayer for possession was
claimed, no decree for possession was granted which had become final.
5. It would appear that in execution of the decree the legal representatives of the decree-holder sought to
dispossess the appellant from the property said to be in his possession. Apprehending his dispossession, the
appellant had filed another suit for injunction based on possessory title obtained an ad-interim injunction on July
2, 1991 as under:
Counsel for the applicant present. The Presiding Officer has been transferred. Notice be issued to non-applicant
on filing the process fee. File be put us on After writing this, non-applicant No. 2
Subhash Saxena appeared and informed the Court that he has not received copy of stay application. Copy of
stay application is given to him today. Rest of the applicants Nos. 1, 3, 4, 5 and 6 be summoned through notices
on filing the Registry fees and other expenses. Meanwhile non-applicant No. 2 would not dispossessed
applicant Babu Lal from the disputed house (except the decree of the Court). Put file on 17.8.91.
6. We are informed that the injunction is still subsisting.
7. In the execution application filed under Order 21 Rule 32 of the C.P.C. the appellant filed an objection on the
ground that he could not be disposed. It is not in dispute that the appellant was not a party to the decree for
specific performance. His objection was over-ruled by the executing Court holding that since he had not been
dispossessed, application under Order 21 Rule 97 is not maintainable. That view was affirmed by the High
Court in the impugned order dated May 9, 1995 in C.R. P. No. 656/94 by the High Court of Rajasthan at Jaipur
Bench. Thus, this appeal by special leave.
8. The controversy is no longer res Integra. This Court in Bhanwar Lal v. Satyanarain and Anr.
MANU/SC/0072/1995 : AIR1995SC358 considered the controversy and had 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 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the
property in execution is not a condition for declining to entertain the application. The reasons are obvious. The
specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding
recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus:
In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent
illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata.
Once the application, dated 25.5.1979 was made, the Court should have treated it to be one filed under Order
21, Rule 97(1) C.P.C. The question of res judicata for filing the second and third applications does not arise.
Under these circumstances, the appellate court, though for different reasons was justified in directing an enquiry
to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21 Rules 35(3)
and Order 21, Rules 101 and 102 of C.P.C.
9. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before
removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that
behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to
1976, the order was subject to suit under 1976 Amendment to C.P.C. that may be pending on the date of the
commencement of the amended provisions of C.P.C. was secured. Thereafter, under the amended Code, right
of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the
right, title or interest of the objector in the immovable property under execution needs to be adjudicated under
Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject
to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a
complete code in itself. Therefore, the executing Court is required to determine the question, when the
appellants had objected to the execution of the decree as against the appellants who were not parties to the
decree for specific performance.
10. The appeal is accordingly allowed. The executing Court is directed to enquire into the matter and record a
finding after giving opportunity to the parties. No costs.
Nadeem Qureshi
(Expert) 11 March 2012
I agree with experts,
thanks a lot Mr, Makkad
Shonee Kapoor
(Expert) 11 March 2012
Agreed and thanks to Ld. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
