LexVANIYANKANDY BHASKARAN versus MOOLIYIL PADINHJAREKANDY SHEELA
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[2008) 14 S.C.R. 389 ~ VANIYANKANDY BHASKARAN A v. MOOLIYIL PADINHJAREKANDY SHEELA (Civil Appeal No. 6103 of 2008) OCTOBER 14, 2008 B [ALTAMAS KABIR AND MARKANDEY KATJU, JJ] -rr Code of Civil Procedure, 1908- 0 21, r 104- lnterpreta- tion of - Held: Language of r. 104 is clear and unambiguous - Order ulr 101 or r. 103 is to be subject to the result of pending c suit on date of commencement of proceeding in which orders were made ulr. 101 or r. 103 - On facts, suit by appellant for specific performance of contract was filed long after the com- mencement of execution proceedings - Thus, r. 104 not ap- plicable. D \( In year 1990, the respondent No.1 filed suit for re- covery of possession against the appellant and the same was decreed. Appellant filed appeal. During the pendency, respondent No.1 filed rent control petition against the wife of the appellant. The petition was dismissed. Respondent E No.1 filed appeal. The same was allowed and order for eviction was passed. Appellant's wife filed a revision peti- .tion which was dismissed. Appellan-t's wife was directed to pay the arrears of rent within the stipulated time but h ' she did not pay the same. In year 2004, the respondent F '" No.1 filed execution proceedings seeking the appellant's eviction and delivery of possession of the suit premises. The Executing Court ordered delivery of possession of the suit premises to the respondent. The appellant resisted the delivery. Attempts were made to settle the matter and G the respondent agreed to withdraw the execution pro- ~ ceedings unconditionally but the same was never with- drawn. In year 2005, the appellant filed suit for specific performance and also suit for injunction to prevent the 389 H 390 SUPREME COURT REPORTS [2008] 14 S.C.R. A eviction of the appellant in Execution Proceedings which ~ was allowed. Respondent challenged the same before the High Court on the ground that the execution of the de- cree which had been legally obtained could not be stalled merely on account of a claim made by husband of judg- B ment-debtor on basis of an unregistered agreement al- leged to have.been executed on a stamp paper purchased in her name. High Court held that the trial court had sim- ,..,._- ply proceeded on the basis that the agreement was genu- ine and had shifted the burden of proving the said agree- c ment to be a manufactured document on the respondent; that in order to prevent the respondent from obtaining delivery of the possession of the suit premises in the ex- ecution proceedings, the appellant had colluded with his wife, the judgment-debtor, in instituting the suit for spe- D cific performance and to obtain an injunction to restrain the respondent from enjoying the benefits of the decree obtained by her, thus, the injunction granted by trial court )I in favour of the appellant was highly irregular and is to be set aside and the petition was dismissed. Hence the E present appeal. .; ., Dismissing the appeal, the Court. HELD: 1-;1 The submissions made on behalf of the appellant regarding the applicability of Rule 104 of Order 21 of the Code of Civil Procedure, 1908 has substance F and merits consideration in an appropriate case, but they ).'. , do not justify interference with the order of the High Court in the facts of the 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 G 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 proceed- ing in which orders were made under Rule 101 or 103. H Since the appellant's suit was filed long after the com- VANIYANKANDY BHASKARAN v. MOOLIYIL PADINHJ- 391 AREKANDY SHEELA [ALTAMAS KABIR, J.] -----+ mencement of the execution proceedings, the provisions A of Rule 104. of Order 21 of the Code will not apply to this case. [Para 14] [396 8-D] 1.2 The views expressed by the High Court in rela- tion to the provisions of Order 21 Rule 2 of the Code re- B garding adjustment of the decree in terms of an oral settle- ment alleged to have been arrived at between the parties ----,... on 21.2.2005 cannot be faulted. Furthermore, the view of High Court that the burden of proving that the Agreement .. relied upon by the appellants was manufactu
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