2025 INSC 329
SUPREME COURT OF INDIA
(HON’BLE J. B.
PARDIWALA, J. AND HON’BLE PANKAJ MITHAL, JJ.)
PERIYAMMAL (DEAD THR.
LRS.)
Petitioner
VERSUS
V. RAJAMANI AND ANR.
ETC.
Respondent
Civil
Appeal Nos. 3640-3642 OF 2025(ARISING OUT OF SLP (C) NOS. 8490-8492 OF 2020)-Decided
on 06-03-2025
Civil, CPC
(A)
Civil Procedure Code, 1908, Section 47, Order 21, Rule 22, Rule 35, Rule 97 to
103 – Execution of decree –
Objections - Whether the courts
below committed any error in upholding the objections raised by the respondent
nos. 1 and 2 against execution of the decree on the claim of being in
possession of the suit property in their capacity as cultivating tenants? –
High Court and this Court had affirmed the decree of specific performance with
possession in favour of the appellants in the year 2004 and 2006 respectively -
Subsequently, the sale deed was executed by the Executing Court on 17.08.2007
thereby transferring title of the suit property to the appellants - Despite
such confirmation of the decree and transfer of title in favour of the
appellants, it is incomprehensible why a notice was sent to the vendors by the
revenue authorities in 2008 - Further, the vendors gave “no objection” to the
grant of certificate of possession to the respondent Nos. 1 and 2 from 1974
despite not having any authority to do so in light of the sale deed dated
17.08.2007.
Held that the aforesaid by no
stretch of imagination can be construed to be a legal right of possession
existing independently from the title of the vendors which has now stood
transferred to the appellants - It is nothing but a case of apparent collusion
between the vendors and the respondent Nos. 1 and 2 to deprive the appellants
from availing the fruits of the decree in their favour - Impugned judgment
passed by the High Court liable to be set aside - The order passed by the
Executing Court also set aside - The
Executing Court shall now proceed to ensure that vacant and peaceful possession
of the suit property is handed over to the appellants in their capacity as
decree holders and if necessary, with the aid of police - This exercise shall
be completed within a period of two months from today without fail.
(Para 67, 68, 78 and
79)
(B)
Civil Procedure Code, 1908, Section 47, Order 21, Rule 22, Rule 35, Rule 97 to
103 – Execution of decree –
Validity of decree - Whether the
respondent Nos. 1 and 2 are entitled to the protection of the Tamil Nadu
Cultivating Tenants’ Protection Act, 1955 and could the Executing
Court have decided the question of validity of the decree on this ground? –
Held that the respondent Nos. 1 and 2 cannot claim protection of the special
legislation of 1955 for the period during which they were not registered as
tenants cultivating the suit properties - Certificate that they are in
possession of the suit properties since 1974 does not come to their aid as the
said certificate does not establish any independent right of possession in
favour of the respondent Nos. 1 and 2 -
Further, the certificate itself appears to have been obtained in
collusion with the vendors who at the time of giving “no objection” had ceased
to be the owners of the suit property - In such circumstances referred to
above, find it extremely difficult to accept that the respondent Nos. 1 and 2
are bona fide cultivating tenants of the suit property and thus, the
determination of the question of them being in possession of the same must
necessarily go against them and in favour of the appellants - Therefore,
there is no question of deciding the validity of the decree on the ground of
being a nullity due to lack of jurisdiction of the civil court to evict
cultivating tenants.
(Para 69 and 70)
(C)
Civil Procedure Code, 1908 – Section 47, Order 21 Rule 97 - Execution of decree
- Section 47 vis-à-vis Order XXI Rule 97 Held that if an application under Order XXI,
Rule 97 is made, then its determination will be under Rule 101 and then Rule
103 further provides that where any application has been adjudicated upon under
Rules 98 or 100, the order made thereon shall have the same force and will be
subject to the same conditions as to an appeal or otherwise as if it were a
decree - Under Section 47 of the CPC all questions relating to the
execution, discharge or satisfaction of the decree, have to be determined
by the executing court whereas under Rule 101 all questions including question
relating to right, title or interest in the property arising between the
parties to the proceedings have to be determined by the executing court -
Section 47 is a general provision whereas Order XXI Rules 97 and 101 deal with
a specific situation - Moreover, Section 47 deals with executions of all kinds
of decrees whereas Order XXI, Rules 97 and 101 deal only with execution of
decree for possession - Apart from that, earlier, i.e., prior to the amendment,
every order falling under Section 47 was appealable (as the terms ‘decree”
included the order under Section 47 of the CPC) whereas now only
certain orders as provided for under Order XXI have been made appealable -
Application of the respondents No. 1 and 2 under Section 47 of the
CPC bearing R.E.A. No. 163 of 2011 was in substance an application for
determination of their possessory rights under Order XXI Rule 97.
(Para 51 to 53)
(D)
Civil Procedure Code, 1908, Section 47; vis-à-vis Order XXI Rule 101 –
Execution of decree – Decree for specific performance and possession – Objection as to -
According to the Executing Court, although the respondent nos. 1 and 2 herein
were impleaded as parties in the execution petition filed by the appellants
herein yet no notice was sent to them as there was no prayer made against them
- Secondly, according to the Executing Court the respondent nos. 1 and 2 have
been able to establish that they are in possession of the suit properties - In
such circumstances, the objections raised by the respondent Nos. 1 and 2 herein
under Section 47 of the CPC were upheld – Held that the Courts below
proceeded absolutely on a wrong footing - What the courts below should have
considered is the simple fact whether the obstruction at the end of the
respondent nos. 1 and 2 of the execution of the decree of specific performance
and possession of the suit property could be said to be bona fide and genuine
- In other words, the consideration at the end of both the courts should have
been whether the respondent nos. 1 and 2 herein being nephews of the original
venders are acting in collusion with each other only with a view to frustrate
and defeat the decree - Courts below failed to consider the following:
a. The respondent Nos.
1 and 2 respectively are nephews of the vendors and claim to have come into
possession of the suit property in the year 1983 when the suit was first
instituted by the appellants before the ASJ.They were impleaded in the original
suit as the defendant Nos. 3 and 4 respectively.
b. The decree in
favour of the appellants granting specific performance with possession was
affirmed by the High Court on 19.03.2004 and the SLP against the order of the
High Court stood dismissed on 20.01.2006. The respondent Nos. 1 and 2
respectively chose not to contest the original suit before the ASJ. They did
not appear even before the High Court and this Court in the appeals filed by
the vendors (judgment debtors).
c. The respondent Nos.
1 and 2 were also impleaded in the execution petition bearing R.E.P. No. 237 of
2004 and the order of the High Court dated 21.02.2006 indicates that they
had appeared through their advocate and were aware about the said execution
petition.
d. The Executing Court
executed the sale deed on 17.08.2007 and ordered for delivery of possession of
the suit property to the appellants. When such order was sought to be affected
by the appellants along with the Village Administrative Officer, the respondent
no. 1 obstructed the delivery of possession.
e. Thereafter, the
respondent Nos. 1 and 2 respectively filed an execution application R.E.A. No.
163 of 2011 on 12.03.2008 alleging fraud on the part of the appellants saying
that they were not aware about the execution proceedings. At this stage, the
respondent no. 2 brought onto the record for the first time that he along with
the respondent no. 1 were cultivating the land constituting the suit property.
f. The respondent Nos.
1 and 2 respectively, after seven months i.e. on 18.10.2008 filed a petition
before the revenue authorities for inclusion of their names in the cultivation
account of the suit property and prayed that the same be done retrospectively
from the year 1974. Though, the revenue authorities only allowed for inclusion
of their names from 2008 onwards yet they were granted certificate that they
were in possession of the suit property from 1974 onwards. Such
certificate was provided to them on the basis of the “no objection” given by
the vendors (judgment debtors) as they were considered to be title holders of
the said property. From the facts on record, it can be discerned that the
revenue authorities were not made aware of the sale deed executed in favour of
the appellants herein and that the title of the suit property stood transferred
to them.
(Para
57 and 59)
(E) Civil Procedure
Code, 1908, Section 47; vis-à-vis Order XXI Rule 101 – Execution of decree
– Decree for specific performance and
possession – Objection as to - 2Respondent Nos. 1 and 2 respectively,
claiming to be cultivating tenants, had contended before the courts below that
the civil court lacked jurisdiction to adjudicate on matters pertaining to
possession of the suit property and eviction there from - The respondents
submitted that the decree passed in the original suit was a nullity and
therefore, the validity of the decree could be challenged even during the
execution proceedings – Held that a harmonious reading of Section 47 with Order
XXI Rule 101 implies that questions relating to right, title or interest in a
decretal property must be related to the execution, discharge or satisfaction
of the decree - The import of such a reading of the provisions is that only
matters arising subsequent to the passing of the decree can be determined by an
executing court under Section 47 and Order XXI Rule 101 - While determining a
question under Section 47, an executing court cannot go behind the decree and
question the correctness of the same - What flows from the position of law, is
that the issues that ought to have been raised by the parties during the
adjudication of the original suit cannot be determined by the executing court
as such adjudication may undermine the decree itself - Benefit of Section 47
cannot be availed to conduct a retrial causing failure of realisation of fruits
of the decree.
(Para
62 and 63)
(F) Civil Procedure
Code, 1908, Section 47; Order 21 – Execution of decree – Guidelines and Directions - In Rahul S. Shah case this
Court has provided guidelines and directions for conduct of execution
proceedings - The relevant portion of the said judgment is reproduced
below:
“42. All courts
dealing with suits and execution proceedings shall mandatorily follow the below
mentioned directions:
42.1. In suits
relating to delivery of possession, the court must examine the parties to the
suit under Order 10 in relation to third-party interest and further
exercise the power under Order 11 Rule 14 asking parties to disclose and
produce documents, upon oath, which are in possession of the parties including
declaration pertaining to third-party interest in such properties.
42.2. In appropriate
cases, where the possession is not in dispute and not a question of fact for
adjudication before the court, the court may appoint Commissioner to assess the
accurate description and status of the property.
42.3. After
examination of parties under Order 10 or production of documents under Order 11
or receipt of Commission report, the court must add all necessary or proper
parties to the suit, so as to avoid multiplicity of proceedings and also make
such joinder of cause of action in the same suit.
42.4. Under Order
40 Rule 1 CPC, a Court Receiver can be appointed to monitor the status of the
property in question as custodia legis for proper adjudication of the matter.
42.5. The court must,
before passing the decree, pertaining to delivery of possession of a property
ensure that the decree is unambiguous so as to not only contain clear
description of the property but also having regard to the status of the
property.
42.6. In a money suit,
the court must invariably resort to Order 21 Rule 11, ensuring immediate
execution of decree for payment of money on oral application.
42.7. In a suit for
payment of money, before settlement of issues, the defendant may be required to
disclose his assets on oath, to the extent that he is being made liable in a
suit. The court may further, at any stage, in appropriate cases during the
pendency of suit, using powers under Section 151 CPC, demand security
to ensure satisfaction of any decree.
42.8. The court
exercising jurisdiction under Section 47 or under Order 21 CPC, must not
issue notice on an application of third-party claiming rights in a mechanical
manner. Further, the court should refrain from entertaining any such
application(s) that has already been considered by the court while adjudicating
the suit or which raises any such issue which otherwise could have been raised
and determined during adjudication of suit if due diligence was exercised by
the applicant.
42.9. The court should
allow taking of evidence during the execution proceedings only in exceptional
and rare cases where the question of fact could not be decided by resorting to
any other expeditious method like appointment of Commissioner or calling for
electronic materials including photographs or video with affidavits.
42.10. The court must
in appropriate cases where it finds the objection or resistance or claim to be
frivolous or mala fide, resort to sub-rule (2) of Rule 98 of Order 21 as well
as grant compensatory costs in accordance with Section 35-A.
42.11.
Under Section 60 CPC the term “… in name of the judgment-debtor or by
another person in trust for him or on his behalf” should be read liberally to
incorporate any other person from whom he may have the ability to derive share,
profit or property.
42.12. The executing
court must dispose of the execution proceedings within six months from the
date of filing, which may be extended only by recording reasons in writing
for such delay.
42.13. The executing
court may on satisfaction of the fact that it is not possible to execute the
decree without police assistance, direct the police station concerned to
provide police assistance to such officials who are working towards execution
of the decree. Further, in case an offence against the public servant while
discharging his duties is brought to the knowledge of the court, the same must
be dealt with stringently in accordance with law.
42.14. The Judicial
Academies must prepare manuals and ensure continuous training through
appropriate mediums to the court personnel/staff executing the warrants,
carrying out attachment and sale and any other official duties for executing
orders issued by the executing courts.”
All
the High Courts across the country directed to call for the necessary
information from their respective district judiciary as regards pendency of the
execution petitions - Once the data is collected by each of the High
Courts, the High Courts shall thereafter proceed to issue an administrative order
or circular, directing their respective district judiciary to ensure that the
execution petitions pending in various courts shall be decided and disposed of
within a period of six months without fail otherwise the concerned presiding
officer would be answerable to the High Court on its administrative side - Once
the entire data along with the figures of pendency and disposal thereafter, is
collected by all the High Courts, the same shall be forwarded to the Registry
of this Court with individual reports.
(Para
73 and 74)
JUDGMENT
J. B. Pardiwala, J. :-
Leave
granted.
2.
“The seeker of justice many a time has to take long circuitous routes, both on
account of hierarchy of courts and the procedural law. Such persons are and can
be dragged till the last ladder of the said hierarchy for receiving justice but
even here he only breathes fear of receiving the fruits of that justice for
which he has been aspiring to receive. To reach this stage is in itself an
achievement and satisfaction as he, by then has passed through a long arduous
journey of the procedural law with many hurdles replica of mountain terrain
with ridges and furrows. When he is ready to take the bite of that fruit, he
has to pass through the same terrain of the procedural law in the execution
proceedings, the morose is writ large on his face. What looked inevitable to
him to receive it at his hands distance is deluded back into the horizon. The
creation of the hierarchy of courts was for a reasonable objective for
conferring greater satisfaction to the parties that errors, if any, by any of
the lower courts under the scrutiny of a higher court be rectified and long
procedural laws also with good intention to exclude and filter out all unwanted
who may be the cause of obstruction to such seeker in his journey to justice.
But this obviously is one of the causes of delay in justice. Of course, under
this pattern the party wrongfully gaining within permissible limits also stretches
the litigation as much as possible. Thus, this has been the cause of anxiety
and concern of various authorities, legislators and courts. How to eliminate
such a long consuming justice? We must confess that we have still to go a long
way before true satisfaction in this regard is received. Even after one reaches
the stage of final decree, he has to undergo a long distance by passing through
the ordained procedure in the execution proceedings before he receives the bowl
of justice. The courts within their limitation have been interpreting the
procedural laws so as to conclude all possible disputes pertaining to the
decretal property, which is within its fold in an execution proceeding, i.e.,
including what may be raised later by way of another bout of litigations
through a fresh suit. Similarly, legislatures equally are also endeavouring by
amendments to achieve the same objective. The present case is one in this
regard. Keeping this in view, we now proceed to examine the present case.
In interpreting any procedural law, where more than one interpretation is
possible, the one which curtails the procedure without eluding justice is to be
adopted. The procedural law is always subservient to and is in aid of justice.
Any interpretation which eludes or frustrates the recipient of justice is
not to be followed.” [Shreenath & Anr. v. Rajesh & Ors reported in
(1998) 4 SCC 543]
3.
We are tempted to preface our judgment with the above quoted observations of
this Court made almost three decades back, as the situation remains the same
even today. It is said that the woes for the litigants in this country start
once they are able to obtain a decree in their favour and are unable to execute
and reap its fruits for years together.
4.
These appeals arise from a common judgment and order passed by the High Court
of Judicature at Madras dated 18.12.2019 in Civil Revision Petition (NPD) No.
4311 of 2011 (“first revision petition”) and Civil Revision Petition (NPD) No.
2151 of 2015 (“second revision petition”) filed by the appellants herein
under Section 115 of the Code of Civil Procedure, 1908 (the “CPC”) by
which the High Court rejected the revision petitions and thereby affirmed the
orders passed by the Additional Subordinate Judge, Salem (“ASJ”) one allowing
the application filed by the respondent Nos. 1 and 2 herein, respectively,
under Section 47 of the CPC and rejecting the application filed by
the appellants herein seeking amendment in the execution petition.
A.
FACTUAL MATRIX
5.
One Ayyavoo Udayar, the father of the appellants herein entered into an
agreement of sale dated 30.06.1980 with Ramanujan and Jagadeesan, the
respondent nos. 3 and 4 herein (the “vendors”) respectively, whereby the
respondents agreed to sell the property under dispute (the “suit property”) for
Rs. 67,000/-. An earnest money of Rs. 10,000/- was paid by Ayyavoo Udayar while
entering the agreement of sale. It was agreed between the parties that the
balance of Rs. 57,000/- would be paid on or before 15.11.1980 upon receipt of
which, the vendors would execute the sale deed.
6.
On 15.11.1980, Ayyavoo Udayar issued a telegram to the vendors requesting that
they should receive the balance consideration and execute the sale deed. The
vendors sent a reply stating that they would execute the sale deed on
20.11.1980, however, no sale deed was executed even on the said date. Since the
vendors did not come forward to execute the sale deed despite notice and talks
of settlement, Ayyavoo Udayar was compelled to file the O.S. No. 514 of 1983
before the Subordinate Judge, Salem praying for specific performance of
agreement of sale i.e. the execution and registration of the sale deed in
respect of the suit properties and delivery of actual physical possession
of the same. The relief prayed for in the plaint by the original plaintiff
Ayyavoo Udayar is reproduced below:
“Therefore the
plaintiff prays that this Honourable Court may be pleased to pass a decree for
specific performance.
(a) Directing the
defendants 1 and 2 to execute and register the sale deed in respect of the
entire suit properties for the sum of Rs. 67,000/- and deliver actual
possession of the entire suit properties to the plaintiff, and if the
defendants 1 and 2 fail to execute the sale deed;
(b) The Court may be
pleased to execute and register the sale deed in respect of the entire suit
properties for Rs. 67,000/- in favour of the plaintiff and order delivery of
possession of the suit properties to the plaintiff;
(c) Directing the
defendants 1 and 2 to pay the costs of the suit;
(d) Directing the
defendants 1 and 2 to deduct the value of the trees cut by them after the date
of the suit agreement;
(e) Granting such
other relief or reliefs as the court may deem fit and necessary under the
circumstances of the case and thus render justice.”
7.
Ayyavoo Udayar impleaded the respondent Nos. 1 and 2 respectively herein in the
O.S. No. 514 of 1983 along with the vendors. The respondent nos. 1 and 2 herein
are the sons of the vendors’ sister and were inducted into the suit properties
to give an appearance that they were in possession of the said properties.
Ayyavoo Udayar impleaded the respondent nos. 1 and 2 in order to avoid any
possible obstruction by them and to enable the appellants herein to take
delivery of possession of the suit properties without multiplicity of
proceedings. However, the respondent Nos. 1 and 2 herein thought fit not to
contest suit and allowed the suit to proceed ex parte against them. The
relevant portion of the plaint is reproduced below:
“10. Now
that the time for filing the suit is likely to expire the plaintiff has been
for the past one month requesting the mediators and the defendants 1 an 2 to
see that the sale deed is executed and property delivered to the plaintiff
after completing the registration formalities. But the defendants 1 and 2 would
not heed to the words of the plaintiff nor to that of the mediators like
Muthusami Udayar son of Arunachala Udayar of Masinaickampatti and Chinnasami
Udayar of Ayothiapattinam. On the other hand the 1st defendant seems to have
inducted the defendants 2 and 3 into the suit properties to make it appear that
they (defendants 3 and 4) are in possession of the suit properties. The
defendants 3 and 4 are the 1st defendant's sister's sons.
They are obliged to
the defendants 1 and 2. All the defendants are now, for the past one week
giving out in the village by they would not on any account allow the plaintiff
to have the sale deed executed in his favour or to enter into the suit property
by any means. Hence the plaintiff is constrained to file this suit for specific
performance. The defendants 3 and 4 are added in order to avoid any possible
obstruction by them and to enable the plaintiff to take delivery of possession
without multiplicity of proceedings.”
(Emphasis
supplied)
8.
The Additional Subordinate Judge, Salem on 02.04.1986 decreed the original suit
as prayed for and directed the vendors to execute the sale deed within one
month of the passing of the decree, failing which the court would execute the
sale deed. Aggrieved by the said judgment and decree, the vendors
preferred an appeal before the High Court. A single judge partly allowed the
appeal and modified the decree to some extent. The respondent Nos. 1 and 2 did
not appear in the appeal proceedings as well.
9.
The second appeal preferred by the vendors before a division bench of the High
Court was also dismissed on 19.03.2004 subject to the condition that the
appellants herein would deposit a further sum of Rs. 67,000/- as consideration
within a period of one month from the date of the order. Though the respondent
Nos. 1 and 2 herein were parties to the second appeal yet they did not
participate during the course of the hearing. Pursuant to the High Court’s
direction, the appellants deposited a sum of Rs. 67,000/- on 19.04.2004.
10.
Thereafter, the vendors filed a special leave petition before this Court
challenging the judgment of the High Court dated 19.03.2004, which came to be
dismissed on 20.01.2006. The vendors thereafter preferred a
review petition against the said order which also came to be dismissed by
this Court on 18.04.2006.
11.
In the meantime, the appellants filed R.E.P. No. 237 of 2004 for execution of
the sale deed in respect of the suit properties and for delivery of possession
thereof. All the respondents herein were impleaded in the said execution
petition and the vendors were named as the persons against whom the execution
of the decree was sought. The said petition was dismissed on 03.12.2004 by the
ASJ on the ground that a special leave petition filed by the vendors before
this Court remained pending.
12.
The appellants, aggrieved by the dismissal of the execution petition, filed
Civil Revision Petition (NPD) No. 2032 of 2005 before the High Court and
simultaneously filed another R.E.P. No. 244 of 2005 for getting the sale deed
executed in respect of the suit properties and for delivery of possession
thereof. The High Court vide its order dated 21.02.2006 allowed the CRP (NPD)
No. 2032 of 2005 observing that the ASJ had provided no reason for dismissing
the execution petition of the appellants except that the special leave petition
filed by the respondents herein remained pending. Since the special leave
petition before this Court came to be disposed on 20.01.2006, the order of the
ASJ dated 03.12.2004 was set aside.
13.
Consequent to the order of the High Court dated 20.01.2006, the proceedings in
respect of the R.E.P. No. 237 of 2004 were restored and the appellants withdrew
the R.E.P. No. 244 of 2005.
14.
Thereafter, the vendors filed Civil Revision Petition (NPD) No. 1865 of 2007
before the High Court challenging the order of the ASJ accepting the deposit of
Rs. 67,000/- made by the appellants on 19.04.2004 on the ground that such
deposit was not made within a period of thirty days as per the order dated
19.03.2004 of the High Court. This revision petition came to be dismissed by
the High Court on 10.07.2007 and it was observed that the appellants herein
were late by one day in depositing the amount of Rs. 67,000/- because
18.04.2004 was the last day to deposit the amount and it was a holiday. Since
the appellants had deposited the amount on the next working day, the deposit
was considered as well within time.
15.
On 17.08.2007, the Executing Court executed a registered sale deed in favour of
the appellants on behalf of all the respondents to the original suit including
the respondent Nos. 1 and 2 herein who were in possession of the property but
did not hold any title in respect thereof.
16.
Aggrieved by the inclusion of the names of respondent Nos. 1 and 2 in the sale
deed, the vendors filed the Civil Revision Petition (NPD) No. 3916 of 2007
before the High Court for deletion of the names of the respondent Nos. 1 and 2
herein. The appellants also filed a memo in this regard and agreed to the
deletion of the names of the respondent Nos. 1 and 2 from the sale deed. The
High Court, by way of its order dated 08.01.2008 allowed the deletion of the
names of the two respondents and directed the Executing Court to carry out the
requisite rectifications to the sale deed in this regard. Accordingly, a
rectification deed dated 25.01.2008 came to be executed removing the names of
the respondent Nos. 1 and 2 herein as the vendors from the sale deed.
17.
On 12.02.2008, the Executing Court passed an order for delivery of possession
of the suit property to the appellants herein. Pursuant to the said order, the
appellants along with the Village Administrative Officer, Surveyor and Court
Amin reached at the site of the property to give effect to the order for
delivery of possession. However, the handing over of the possession of the
property was obstructed by the respondent No. 1 herein who threatened to self
immolate himself if anybody dared to enter the property. As the delivery of
possession could not be effected, a delivery warrant and obstruction report
were filed before the ASJ on 20.02.2008.
18.
Subsequently, the respondent Nos. 1 and 2 herein filed an application dated
12.03.2008 under Section 47 of the CPC (“R.E.A. 163 of 2011”) before
the ASJ on the following grounds:
(1) no notice
regarding execution of the sale deed and delivery of possession was served upon
them due to which they were unable to avail a fair chance of putting forth
their objections;
(2) since their names
were deleted from the sale deed so executed, the same was not binding upon them
and the executing court had illegally added their names in the list of parties
in the order for delivery of possession;
(3) the appellants
herein had acted fraudulently.
An interim relief was
also prayed for by the respondent Nos. 1 and 2 herein to stay the operation of
the execution order, which directed delivery of possession of the suit property
to the appellants.
19.
After filing the execution application, the respondent Nos. 1 and 2 herein
filed a petition before the Tehsildar, Vazhapadi for inclusion of their names
in the cultivation account for the suit property retrospectively from
1974 submitting that they were in possession of the same since 1967. The
series of orders delivered in this regard are detailed below:
a) The Tehsildar,
Vazhapadi vide order dated 18.10.2008 held that the respondent Nos. 1 and 2
herein were in possession of the suit property and ordered that their names be
entered in the cultivation account of the same. The Tehsildar, however, gave no
finding regarding inclusion of the respondents’ names retrospectively from
1974.
b) The respondent Nos.
1 and 2 herein, aggrieved by the order dated 18.10.2008, filed W.P. No. 5032/09
before the Telsildar, Vazhapadi to get their names registered in the
cultivation account in respect of the suit property from 1974 onwards. While
the hearing of the writ petition was going on, the vendors, whose names were
registered as pattadharars for the suit property, gave a statement that the
respondent Nos. 1 and 2 had been in possession of the said land for a long time
and that the vendors did not have any objection to the inclusion of their names
in the cultivation account of the suit property. Upon examination of relevant
documents and the Village Administrative Officer, the Tehsildar recorded that
as the respondent Nos. 1 and 2 had been in enjoyment of the suit property for a
long time, the inclusion of their names in the cultivation account for
the year 2008 was correct.
However, their names
cannot be entered in the cultivation account as persons being in possession of
the suit property from 1974 onwards.
c) Aggrieved by the
non-inclusion of their names in the cultivation account for the suit property
retrospectively from 1974, the respondent Nos. 1 and 2 herein appealed to the
Revenue Divisional Officer. It was held by the Revenue Divisional Officer vide
order dated 29.10.2009 that there is no provision in law to enter the names of
the respondent Nos. 1 and 2 in the cultivation accounts retrospectively from
1974 as such accounts had already been closed and hence, no alteration could be
made therein. The respondents were granted leave to file an application before
the Tehsildar for issuance of a certificate that they were in possession of the
suit property since 1974.
20.
The R.E.A. No. 163 of 2011 was initially rejected by the ASJ. Consequently, the
respondent Nos. 1 and 2 herein filed Civil Revision Petition (NPD) No. 2354 of
2008 before the High Court. The High Court vide order dated 25.04.2011 set
aside the ASJ’s order, which rejected the execution application and observed
that the same was not passed on merits. The High Court directed the lower court
to dispose of the Execution Application filed under Section
47 of the CPC read with Section 151 thereof and pass appropriate
orders within the time specified in the order.
21.
Pursuant to the directions of the High Court, the ASJ vide order dated
12.08.2011 allowed R.E.A. No. 163/2011 of the respondent Nos. 1 and 2 herein
and held as follows:
a) The High Court,
while executing the sale deed, ordered for deletion of the names of the
respondent Nos. 1 and 2 herein as they were not the vendors who had title to
sell the suit property.
b) The respondent Nos.
1 and 2 by way of oral and documentary evidence have established that they were
in possession of the suit property. On the other hand, the appellants herein
did not examine any independent witnesses to establish that the respondent Nos.
1 and 2 were not in possession of the suit property.
c) Further, in both
the execution petitions namely R.E.P. No. 237 of 2004 and R.E.P. No. 244 of
2005, the appellants did not seek any relief for delivery of possession from
the respondent Nos. 1 and 2.
d) The appellants can
take over possession only after taking appropriate legal steps/proceedings.
22.
Aggrieved by the order of the ASJ, the appellants filed Civil Revision Petition
(NPD) No. 4311 of 2011 (hereinafter referred to as the “first revision
petition”) before the High Court. The grounds taken in the said petition are
summarized below:
a) The order of the
ASJ dated 12.08.2011 rejecting the appellants’ prayer on the ground that no
notice of execution of the sale deed by the court was served to the respondent
Nos. 1 and 2, was erroneous since notice to show cause against execution is
necessary only in certain circumstances as laid down in Order XXI
Rule 22 of the CPC. It was submitted that no notice was mandatory in the case
on hand as the execution petition was filed by the decree-holder within two
years of the confirmation of the decree by the High Court.
b) The Executing Court
failed to consider that the respondent Nos. 1 and 2 were impleaded as
defendants in O.S. No. 514 of 1983 and were aware of the decree passed against
them therein on 02.04.1986. Further, the respondent Nos. 1 and 2, by their own
admission, were fully aware of the decree for delivery of possession passed
against them and as such the allegations that they were not aware of the events
subsequent thereto cannot be a ground to obstruct the execution of decree
by way of a petition under Section 47 of the CPC.
c) Subsequent to the
execution of agreement to sell between the appellants and vendors, the
respondent no. 1 herein had filed an O.S. No. 1384 of 1980 for permanent
injunction against Ayyavoo Udayar, the vendors, respondent no. 2 herein as well
as his father, Venkatasamy Naidu. The said suit was subsequently dismissed.
However, such actions of the respondent No. 1 would indicate that the
contesting respondents herein were aware about the agreement to sell before the
institution of the suit for specific performance in which they were parties.
Therefore, the respondent Nos. 1 and 2 had no good reason to contend that they
were not aware of the proceedings especially when they continued to remain
parties to the dispute in the original suit till it attained finality by way of
a judgment of this Court.
d) The Executing Court
also did not take into consideration the fact that the execution application of
the respondent Nos. 1 and 2 could not have been allowed because a sale deed had
already been executed by the ASJ in favour of the appellants and against the
vendors. The prayer for delivery of possession was a consequential relief. The
rejection of the said prayer by the Executing Court based on hyper
technical objections raised by the respondent Nos. 1 and 2, could have been
cured by amending the prayer in R.E.P. No. 237 of 2004.
23.
A week after the first revision petition i.e. on 08.11.2011, the appellants
filed the R.E.A. No. 14 of 2012 under Order VI Rule 17 read with Section
151 of the CPC for amendments in the R.E.P. No. 237 of 2004. The
appellants sought to record that the respondents’ SLP and Review Petition
pursuant to the proceedings in the original suit for specific performance, came
to be dismissed by this Court. Further, the appellants sought amendment of the
prayer made in the execution petition asking for execution of the sale deed on
behalf of the vendors and delivery of possession against all the respondents.
The vendors in their counter-statement alleged that the said execution
application was preferred by the appellants with a mala fide intention and
seeking amendment to the array of parties against whom execution was prayed
for, after a lapse of seven and a half years was legally untenable.
24.
The appellants, on 10.04.2013, sought for one another amendment by way of
R.E.A. No. 145 of 2013 seeking to disclose about the other execution petitions
filed after R.E.P. No. 237 of 2004. The vendors filed a counter- statement
to the same alleging that said amendment application was filed with an ulterior
motive of delaying the execution proceedings. The respondent Nos. 1 and 2
herein also filed a counter submitting that they were not parties to the R.E.P.
No. 237 of 2004 as they were not issued notice regarding the same. They came
into knowledge of the execution proceedings only after the court Amin visited
the property to deliver possession of the property to the appellants.
25.
The ASJ vide two separate orders dated 24.04.2015 allowed the execution
petition on the ground that the appellants had not made any prayer in the
execution petition against the respondent Nos. 1 and 2 and since the respondent
Nos. 1 and 2 had proved their possession of the suit property, the appellants
could take possession only after taking necessary legal steps. It was held that
since the appellants had not preferred any appeal or revision against the order
dated 12.08.2011, the same had become final and binding on the parties. As a
result, the orders allowing R.E.P. 237 of 2004 would have no effect and
therefore, the question of amendment of the same did not arise. The appellants
challenged the order dated 24.04.2015 by way of Civil Revision Petition (NPD)
No. 2151 of 2015 (hereinafter referred to as the “second revision petition”).
Impugned Order of the High Court
26.
The High Court vide its common order (the “impugned order”) held as follows:
a) The ASJ’s order
allowing the respondents’ execution application under Section 47 was
correct on the aspect of serving of notice. The appellants although were aware
of the fact that the respondent Nos. 1 and 2 were in possession of the suit
property yet they did not ask the court to serve notice to the said
respondents. Since no notice was provided to the respondent Nos. 1 and 2, the
court could not have passed a direction for delivery of possession.
b) The appellants did
not take any steps to amend the execution petition R.E.P. No. 237 of 2004 till
the disposal of the respondents’ execution application R.E.A. No. 163 of 2011
under Section 47 of the CPC. Once the said application was allowed,
there remained no execution proceedings pending so far as the respondent Nos. 1
and 2 were concerned. Therefore, the amendment applications filed in R.E.A. No.
14 of 2012 and R.E.A. No. 145 of 2015 were held to be non-maintainable.
c) The appellants did not prefer any appeal
against the order of the ASJ dated 12.08.2011 allowing the application
under Section 47 of the CPC, till 2015 and no reasons were assigned
by the appellants for such delay.
d) Thus, the High
Court held that there was no material irregularity in the orders of the ASJ
dated 12.08.2011 and 24.04.2015 respectively and upheld the same.
B.
SUBMISSIONS OF THE APPELLANTS
27.
Mr. Senthil Jagadeesan, the learned senior counsel appearing on behalf of the
appellants submitted that the High Court could be said to have committed a
serious error in passing the impugned order for the following reasons:
a. The appellants had
not filed any appeal or revision against the order of the ASJ allowing the
application under Section 47 of the CPC, till 2015.
However, the
appellants had challenged the said order by preferring the first revision
petition as early as 31.10.2011 and the same was decided by the High Court by
way of the impugned order.
b. The appellants had
filed the execution petition on 19.07.2004 that is, after four months of
confirmation of the decree in the original suit by the High Court. The learned
counsel invited our attention to the provision in Order 21 Rule 22 of
the CPC, which stipulates that a notice to show cause against execution is
required to be served compulsorily only if the application for such execution
is made, inter alia, more than two years after the date of the decree. He
submitted that in view of the said provision, no separate notice was required
to be issued to the judgment debtors in the case on hand as the execution
petition was filed well within the time period of two years.
c. The contention of
the respondent Nos. 1 and 2 that they were not aware about the execution
petition was erroneously accepted by the High Court. The High Court failed to
notice that the respondent Nos. 1 and 2 had appeared through their counsel in
CRP No. 2032 of 2005 by way of which the R.E.P. No. 237 of 2004 was restored.
Therefore, the respondents were fully aware about the resumption of proceedings
before the Executing Court but still chose not to participate therein.
Though served with the
summons in the original suit proceedings, yet they chose not to appear, contest
or challenge the decree therein as well.
d. The appellants’
application for amending the execution petition was squarely within the
framework of the decree and ought to have been allowed by the High Court in
light of the judgments of this Court in State of Bihar & Ors. v. Bihar
Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472 and Salem
Advocate Bar Association v. Union of India reported in (2005) 6 SCC 344. It has
been held in these decisions that rules of procedure are made to advance the
cause of justice and not to defeat it. The courts ought to adopt such
construction of rules or procedure that prevents miscarriage of justice.
28.
Mr. Jagadeesan further submitted that a clear case of collusion between the
vendors and the respondent Nos. 1 and 2 is made out. The attempt is to
frustrate the decree and thereby deprive the appellants of its fruits. The same
is evident from the following facts:
a. The names of the
respondent Nos. 1 and 2 were deleted from the sale deed executed by the
Executing Court at the behest of the vendors, who facilitated the filing of
objections by respondent Nos. 1 and 2 by getting their names removed from the
sale deed.
b. The respondent Nos.
1 and 2 applied for registration of their names in the cultivation account of
the suit property only in 2008 that is, four years after the confirmation of
the decree by the High Court. Though they had prayed for inclusion of their names
in the revenue records from 1974 onwards, yet the revenue authorities allowed
for such inclusion only from 2008 onwards. Further, their names were
included in the revenue records solely because of the “no objection” from the
vendors and not because of any independent right that they possessed.
29.
Mr. Rahul Jain, the learned counsel appearing on behalf of the respondent Nos.
1 and 2 addressed himself on the following points:
i. The decree
travelled beyond the judgment,
ii. No effective
proceedings were instituted by the appellants against the respondent Nos. 1 and
2 herein,
iii. The respondent
Nos. 1 and 2 have a lawful title and have been in lawful and uninterrupted
possession of the suit properties since 1967,
iv. The appellants had not instituted any suit
for recovery of possession, and
v. The civil courts
inherently lacked jurisdiction to decide the question of possession as the
respondent Nos. 1 and 2 were cultivating tenants.
30.
The learned counsel submitted that the original suit was for specific
performance of the agreement of sale of the suit property and respondent Nos. 1
and 2 were not parties to the said agreement. They were impleaded in the
original suit stating that they were in possession of the suit property. Even
though the appellants were aware of the said fact, yet they did not pray for
dispossession of the respondent Nos. 1 and 2 and no pleadings were made against
them.
31.
Further, the trial court’s order dated 02.04.1986, having considered the issue
of possession, decreed the suit “as prayed for”. The decree of the trial court
dated 02.04.1986 is reproduced below:
“This suit coming on
21.3.1986 for final hearing before me in the presence of Thiru. A. Duraisami,
Counsel for the plaintiff and of G. Perumal counsel for the defendants and
having stood over till this day for consideration this court doth order and
decree as follows:-
1. that the defendants
1 and 2 do execute the sale deed for Rs. 67000/- in favour of the plaintiff in
respect of the entire suit properties described hereunder within one month from
this date and register the same;
2. that the plaintiff
to deposit the balance of Rs. 57000/- into court to perform the sale agreement;
3. that the defendants
1 and 2 are at liberty to withdraw the said sum from the court: after executing
the sale deed and register it in favour of the plaintiff.
4. that the defendants
do deliver possession of the suit properties to the plaintiff; (…)”
32.
The learned counsel submitted that while Clause 4 of the decree directed that
“the defendants do deliver possession of the suit properties to the
plaintiff”, such general language should be read within the context of the
wordings in the other directions issued by the decree, the reasoning of the
trial court in its judgment, and the specific prayer sought in the original
plaint, as the suit was for specific performance.
33.
Mr. Jain relied on the decision of this Court in Rajinder Kumar v. Kuldeep
Singh reported in (2014) 15 SCC 529 to submit that the question of
alternative reliefs does not arise in case of a suit for specific performance,
when it is decreed as prayed for. The relevant portion of the judgment relied
upon is reproduced below:
“21. If the suit for
specific performance is not decreed as prayed for, then alone the question of
any reference to the alternative relief would arise. Therefore, there is no
question of any ambiguity. As held by this Court in Topanmal Chhotamal v.
Kundomal Gangaram and consistently followed thereafter, even if there is
any ambiguity, it is for the executing court to construe the decree if
necessary after referring to the judgment. If sufficient guidance is not
available even from the judgment, the court is even free to refer to the
pleadings so as to construe the true import of the decree. No doubt, the court
cannot go behind the decree or beyond the decree. But while executing a decree
for specific performance, the court, in case of any ambiguity, has necessarily
to construe the decree so as to give effect to the intention of the parties.”
34.
As regards the question whether the appellants had instituted an effective
proceeding against the respondent Nos. 1 and 2, the learned counsel submitted
that:
a. The respondents
were not a necessary party to the original suit for specific performance as
they were neither parties to the agreement of sale nor lis pendens purchasers
of the suit properties. The appellants sought no relief of possession against
the respondent Nos. 1 and 2 in the original suit despite impleading them as
parties because they were in actual physical possession of the suit properties.
b. In R.E.P. 237 of
2004, the appellants sought relief only against the vendors and not against the
respondent Nos. 1 and 2 despite impleading them in the execution petition.
Further, no notice was served to the said respondents and as a result, the
respondents were not afforded an opportunity to be heard by the Executing
Court.
c. The respondent Nos.
1 and 2 were also not parties to the sale deed registered by the Executing
Court and their names were deleted therefrom without any objection by the
appellants.
35.
The learned counsel, with a view to establish that the respondent Nos. 1 and 2
were in lawful and uninterrupted possession of the suit properties since 1967,
submitted as follows:
a. The respondent Nos.
1 and 2 stated that their father was in possession of the suit property since
1967 and was cultivating the land. After his demise in 1983, the respondents
have been in continuous possession of the suit property.
b. Further, the order
of the Revenue Divisional Officer dated 29.10.2009 held that the respondent
Nos. 1 and 2 have been in enjoyment of suit property for over 40 years and the
certificate of possession issued in this regard recognizes the same.
36.
On the question whether the appellants were supposed to bring a separate suit
for recovery of possession, Mr. Jain submitted that:
a. The appellants,
despite being aware that the respondent Nos. 1 and 2 were in possession of the
suit property, brought no suit for recovery of possession against them. The
onus was on the appellants to establish that they had a better title to the
suit property as against the continuous possession claimed by the respondent
Nos. 1 and 2.
b. The learned counsel
relied on this Court’s decision in Smriti Debbarma v. Prabha Ranjan
Debbarma reported in 2023 SCC OnLine SC 9 to contend that the appellants
could not have claimed possession by way of mere execution proceedings without
first establishing a better title to the properties in question. The relevant
portion of the judgment relied upon is reproduced below:
“(…) The defendants
cannot be dispossessed unless the plaintiff has established a better title and
rights over the Schedule ‘A’ property. A person in possession of land in the
assumed character as the owner, and exercising peaceably the ordinary rights of
ownership, has a legal right against the entire world except the rightful
owner. A decree of possession cannot be passed in favour of the plaintiff on
the ground that defendant nos. 1 to 12 have not been able to fully establish
their right, title and interest in the Schedule ‘A’ property. The defendants,
being in possession, would be entitled to protect and save their possession,
unless the person who seeks to dispossess them has a better legal right in the
form of ownership or entitlement to possession.” c. Further, the appellants,
being the decree holders, failed to file an application to seek recovery of
possession under Order XXI Rule 97, after having been obstructed by the
respondents. Such process could not have been circumvented by the appellants by
seeking an amendment to their execution petition, especially after the
respondents’ Section 47 application had already been allowed by the
Executing Court.
37.
Mr. Jain further submitted that the respondent Nos. 1 and 2 are cultivating
tenants in continuous possession of the suit property and accordingly are
protected under Sections 3 and 6 of the Tamil Nadu
Cultivating Tenants’ Protection Act, 1955 respectively which imposes
a bar on the jurisdiction of the civil courts in matters of eviction of
cultivating tenants.
38.
The learned counsel relied on this Court’s decision in Sunder Dass v. Ram
Prakash reported in (1977) 2 SCC 662 to submit that a challenge to the
validity of a decree can be set up even at the stage of execution proceedings,
in cases where the civil court inherently lacks jurisdiction. The relevant
portion of the judgment relied upon is reproduced below:
“3. Now, the law is
well settled that an executing court cannot go behind the decree nor can it
question its legality or correctness. But there is one exception to this
general rule and that is that where the decree sought to be executed is a
nullity for lack of inherent jurisdiction in the court passing it, its
invalidity can be set up in an execution proceeding. Where there is lack of
inherent jurisdiction, it goes to the root of the competence of the court to
try the case and a decree which is a nullity is void and can be declared to be
void by any court in which it is presented. Its nullity can be set up whenever
and wherever it is sought to be enforced or relied upon and even at the stage
of execution or even in collateral proceedings. The executing court can,
therefore, entertain an objection that the decree is a nullity and can refuse
to execute the decree. By doing so, the executing court would not incur the
reproach that it is going behind the decree, because the decree being null and
void, there would really be no decree at all. Vide Kiran Singh v. Chaman
Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117] and Seth Hiralal Patni v. Sri
Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747]. It is, therefore, obvious
that in the present case, it was competent to the executing court to examine
whether the decree for eviction was a nullity on the ground that the civil
court had no inherent jurisdiction to entertain the suit in which the decree
for eviction was passed. If the decree for eviction was a nullity, the
executing court could declare it to be such and decline to execute it against
the respondent.”
39.
In the last, the learned counsel submitted that the Executing Court and High
Court were correct in allowing the application under Section 47 to afford the
respondent Nos. 1 and 2 to prove their long and continuous possession of the
suit property as cultivating tenants.
D.
ISSUES TO BE DETERMINED
40.
Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our
consideration:
(i) Whether the courts below committed any
error in upholding the objections raised by the respondent nos. 1 and 2 herein
against execution of the decree on the claim of being in possession of the suit
property in their capacity as cultivating tenants?
(ii) Whether the
respondent Nos. 1 and 2 are entitled to the protection of the Tamil Nadu
Cultivating Tenants’ Protection Act, 1955 and could the Executing
Court have decided the question of validity of the decree on this ground?
E.
ANALYSIS
(i)
Relevant statutory provisions
41.
Before adverting to the rival submissions canvassed on either side, we must
refer to few relevant provisions of the CPC, which read thus :-
Section 47 reads as
follows:
“47. Questions to be
determined by the Court executing decree.
(1) All questions
arising between the parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge or satisfaction
of the decree, shall be determined by the Court executing the decree and not by
a separate suit.
(3) Where a question arises as to whether any
person is or is not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.
Explanation 1.-- For
the purposes of this section, a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-- (a)
For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the
decree is passed; and
(b) all questions
relating to the delivery of possession of such property to such purchaser or
his representative shall be deemed to be questions relating to the execution,
discharge or satisfaction of the decree within the meaning of this section.”
Order XXI, Rule 35 reads as follows:
“35.
Decree for immovable property.-
(1) Where a decree is
for the delivery of any immovable property, possession thereof shall be
delivered to the party to whom it has been adjudged, or to such person as he
may appoint to receive delivery on his behalf, and, if necessary, by removing
any person bound by the decree who refuses to vacate the property.
(2) Where a decree is
for the joint possession of immovable property, such possession shall be
delivered by affixing a copy of the warrant in some conspicuous place on the
property and proclaiming the beat of drum, or other customary mode, at
some convenient place, the substance of the decree.
(3) Where possession
of any building on enclosure is to be delivered and the person in possession,
being bound by the decree, does not afford free access, the Court, through its
officers, may, after giving reasonable warning and facility to any woman not
appearing in public according to the customs of the country to withdraw, remove
or open any lock or bolt or break open any door or do any other act necessary
for putting the decree-holder in possession.” Order XXI, Rule 97 reads as
follows:
“97. Resistance or obstruction to possession of
immovable property:-
(1) Where the holder
of a decree for the possession of immovable property or 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.
2) Where any
application is made under sub-rule (1), the Court shall proceed to adjudicate
the upon the application in accordance with the provisions herein contained.”
Order XXI, Rule 98 reads as follows:
“98. Orders after adjudication.
(1) Upon the
determination of the questions referred to in rule 101, the Court shall, in
accordance with such determination and subject to the provisions of sub-rule
(2),-
(a) make an order allowing the application and
directing that the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other
order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such
determination, the Court is satisfied that the resistance or obstruction was
occasioned without any just cause by the judgment- debtor or by some other person
at his instigation or on his behalf, or by any transferee, where such transfer
was made during the pendency of the suit or execution proceeding, it shall
direct that the applicant be put into possession of the property, and where the
applicant is still resisted or obstructed in obtaining possession, the Court
may also, at the instance of the applicant, order the judgment-debtor, or any
person acting at his instigation or on his behalf, to be detained in the civil
prison for a term which may extend to thirty days.” Order XXI, Rule 99 reads as
follows:
“99. Dispossession by decree-holder or purchaser :-
(1) Where any person
other than the judgment-debtor is dispossessed of immovable property by the
holder of a decree for the possession of such property or, where such property
has been sold in execution of a decree, by the purchaser thereof, he may make
an application to the Court complaining of such dispossession.
(2) Where any such
application is made, the Court shall proceed to adjudicate upon the application
in accordance with the provisions herein contained.” Order XXI, Rule 100 reads
as follows:
“100. Order to be passed upon application
complaining of dispossession.
Upon the determination of the questions
referred to in rule 101, the Court shall, in accordance with such
determination,-
(a) make an order
allowing the application and directing that the applicant be put into the
possession of the property or dismissing the application; or
(b) pass such other
order as, in the circumstances of the case, it may deem fit.” Order XXI, Rule
101 reads as follows:
“101. Question to be determined:-
All questions
(including questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application under rule 97 or
rule 99 or their representatives, and relevant to the adjudication of the
application, shall be determined by the Court dealing with the application and
not by a separate suit and for this purpose, the Court shall, notwithstanding
anything to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions.” Order XXI,
Rule 103 reads as follows:
“103. Orders to be treated as decrees.
Where any application
has been adjudicated upon under rule 98 or rule 100 the other made thereon
shall have the same force and be subject to the same conditions as to an appeal
or otherwise as if it were a decree.”
(ii) Nature of application under Order XXI Rule 97
42.
It is a settled position of law that an application under Order XXI Rule 97 may
be made in respect of obstruction raised by any person in obtaining possession
of the decretal property. The courts adjudicating such application have to do
so in accordance with Rule 101 and hold a full-fledged inquiry to determine all
questions including questions relating to right, title or interest in the
property arising between the parties.
43.
This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal reported
in (1997) 3 SCC 697, has held that :-
“4. (…) A conjoint
reading of Order XXI Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder
is resisted or obstructed in execution of the decree for possession with the
result that the decree for possession could not be executed in the normal
manner by obtaining warrant for possession under Order XXI Rule 35, then the
decree-holder has to move an application under Order XXI Rule 97 for removal of
such obstruction and after hearing the decree-holder and the obstructionist the
Court can pass appropriate orders after adjudicating upon the controversy
between the parties as enjoined by Order XXI Rule 97 sub-rule (2) read with
Order XXI Rule 98.
It is obvious that
after such adjudication if it is found that the resistance or obstruction was
occasioned without just cause by the judgment-debtor or by some other person at
his instigation or on his behalf then such obstruction or resistance would be
removed as per Order XXI Rule 98 sub-rule (2) and the decree-holder would be
permitted to be put in possession. Even in such an eventuality the order passed
would be treated as a decree under Order XXI Rule 101 and no separate suit
would lie against such order meaning thereby the only remedy would be to prefer
an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason
a stranger to the decree is already dispossessed of the suit property relating
to which he claims any right, title or interest before his getting any
opportunity to resist or offer obstruction on spot on account of his absence
from the place or for any other valid reason then his remedy would lie in
filing an application under Order XXI Rule 99, CPC claiming that his
dispossession was illegal and that possession deserves to be restored to him.
If such an application is allowed after adjudication then as enjoined by Order
XXI Rule 98 sub-rule (1) CPC the Executing Court can direct the
stranger applicant under Order XXI Rule 99 to be put in possession of the
property of if his application is found to be substanceless it has to be
dismissed. Such an order passed by the Executing Court disposing of the
application one way or the other under Order XXI Rule 98 sub-rule (1) would be
deemed to be a decree as laid down by Order XXI Rule 103 and would be
appealable before appropriate appellate forum. But no separate suit would lie
against such orders as clearly enjoined by Order XXI Rule 101.
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 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 in only under Order XXI Rule 97 sub-rule (1) and he cannot
bypass 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 bypassing 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 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 or 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 non- compliance 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 and 103 would 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.
6.(…) A reading
of Order 21, Rule 97 CPC clearly envisages that "any
person" even including the judgment-debtor irrespective whether he claims
derivative title from the judgment-debtor or set up his own right, title or
interest dehors the judgment-debtor and he resists execution of a decree, then
the court in addition to the power under Rule 35(3) has been empowered to
conduct an enquiry whether the obstruction by that person in obtaining
possession of immovable property was legal or not. The decree- holder gets a
right under Rule 97 to make an application against third parties to have his
obstruction removed and an enquiry thereon could be done. Each occasion of
obstruction or resistance furnishes a cause of action to the decree-holder to
make an application for removal of the obstruction or resistance by such person
(…)”
(Emphasis
supplied)
44. In Shreenath (supra),
the application under Order XXI Rule 97 was filed by the tenants who were not
parties to the suit. The question was whether the tenants could maintain an
application under Order XXI Rule 97. This Court while interpreting the words
'any person' held that any person includes even persons not bound by the decree.
Paragraphs 10 and 11 read thus :-
“10. Under sub-clause 1 order 21, Rule 35, the
Executing Court delivers actual physical possession of the disputed property to
the decree-holder and, if necessary, by removing any person bound by the decree
who refuses to vacate the said property. The significant words are by removing
any person bound by he decree. Order 21, Rule 36 conceives of immovable
property when in occupancy of a tenant or other person not bound by the decree,
the Court delivers possession by fixing a copy of the warrant in some
conspicuous place of the said property and proclaiming to the occupant by beat
of drum or other customary mode at some convenient place, the substance of the
decree in regard to the property. In other words, the decree-holder gets the
symbolic possession. Order 21, rule 99 conceives of resistance or obstruction
to the possession of immovable property when made in execution of a decree by
" any person". this may be either by the person bound by the decree,
claiming title through judgment debtor or claiming independent right of his own
including tenant not party to the suit or even a stranger. A decree holder, in
such case, may make an application to the Executing Court complaining such
resistance, for delivery of possession of the property. Sub-clause (2) after
1976 substitution empowers the executing Courts when such claim is made to
proceed to adjudicate upon the applicants claim in accordance with provisions
contained hereinafter. This refers to Order 21, Rule 101 (As amended by 1976
Act) under which all questions relating to right, title or interest in the
property arising between the parties under Order 21, Rule 97 or Rule 99 shall
be determined by the Court and not by a separate suit, By the amendment, one
has not to go for a fresh suit but all matter pertaining to that property even
if obstructed by a stranger is adjudicated and finality given even in the
executing proceedings. We find the expression "any person" under
sub-clause (1) is used deliberately for widening the scope of power so
that the Executing court could adjudicate the claim made in any such
application under order 21, Rule 97. Thus by the use of the words 'any person'
it includes all persons resisting the delivery of possession, claiming right in
the property even those not bound by the decree, includes tenants or other
persons claiming right on their own including a stranger.
11. So, under Order
21, Rule 101 all disputes between the decree-holder and any such person is to
be adjudicated by the Executing Court. A party is not thrown out to relegate
itself to the long drawn out arduous procedure of a fresh suit. This is to
salvage the possible hardship both to the decree-holder and other person
claiming title on their own right to get it adjudicated in the very execution
proceedings. We find that order 21, Rule 35 deals with cases of delivery of
possession of an immovable property to the decree- holder by delivery of actual
physical possession and by removing any person in possession who is bound by a
decree, while under Order 21, Rule 36 only symbolic possession is given where
tenant is in actual possession. Order 21, rule 97 as aforesaid, conceives of
cases where delivery of possession to decree-holder or purchaser is resisted by
any person. 'Any person' , as aforesaid, is wide enough to include even a
person not bound by a decree or claiming right in the property on his own
including that of a tenant including stranger.”
(Emphasis
supplied)
45. In Silverline
Forum Pvt. Ltd. vs. Rajiv Trust and Anr. reported in 1998 (3) SCC 723, a
three Judge Bench of this Court has observed that a third party to the decree
including the transferee pendente lite can offer resistance or obstruction
and his right has to be adjudicated under Order XXI Rule 97 of CPC. The
relevant portion of the said judgment is reproduced below:
“9. At the outset, we
may observe that it is difficult to agree with the High Court that resistance
or obstructions made by a third party to the decree of execution cannot be gone
into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the
Code are subsumed under the caption "Resistance to delivery of possession
to decree-holder or purchaser". Those rules are intended to deal with
every sort of resistance or obstructions offered by any person. Rule 97
specifically provides that when the holder of a decree for possession of
immovable property is resisted or obstructed by-“any person” in obtaining
possession of the property such decree-holder has to make an application
complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent
on the court to proceed to adjudicate upon such complaint in accordance with
the procedure laid down.
10. It is true that
Rule 99 of Order 21 is not available to any person until he is dispossessed of
immovable property by the decree-holder. Rule 101 stipulates that all questions
"arising between the parties to a proceeding on an application under rule
97 or rule 99" shall be determined by the executing court, if such
questions are "relevant to the adjudication of the application". A
third party to the decree who offers resistance would thus fall within the
ambit of Rule 101 if an adjudication is warranted as a consequence of the
resistance or obstruction made by him to the execution of the decree. No doubt
if the resistance was made by a transferee pendente lite of the judgment
debtor, the scope of the adjudication would be shrunk to the limited question
whether he is such transferee and on a finding in the affirmative regarding
that point the execution court has to hold that he has no right to resist
in view of the clear language contained in Rule
102. Exclusion of such
a transferee from raising further contentions is based on the salutary
principle adumbrated in Section 52 of the Transfer of property Act.
--xxx--
14. It is clear that
executing court can decide whether the resistor or obstructor is a person bound
by the decree and he refused to vacate the property. That question also
squarely falls within the adjudicatory process contemplated in Order 21 Rule
97(2) of the Code. The adjudication mentioned therein need not necessarily
involve a detailed enquiry or collection of evidence. Court can make the
adjudication on admitted facts or even on the averments made by the resistor.
Of course the Court can direct the parties to adduce evidence for such
determination. If the Court deems it necessary.” (Emphasis supplied)
46.
This Court, in NSS Narayan Sarma & Ors. v. Goldstone Exports (P) Ltd. &
Ors., reported in (2002) 1 SCC 662, has held as under:-
“15. Provision is made
in the Civil Procedure Code for delivery of possession of immovable property in
execution of a decree and matters relating thereto. In Order 21 Rule 35
provisions are made empowering the executing court to deliver possession of the
property to the decree holder if necessary, by removing any person bound by the
decree who refuses to vacate the property. In Rule 36 provision is made for
delivery of formal or symbolical possession of the property in occupancy of a
tenant or other person entitled to occupy the same and not bound by the decree
to relinquish such occupancy.
Rules 97 to 101 of Order 21 contain the
provisions enabling the executing court to deal with a situation when a decree
holder entitled to possession of the property encounters obstruction from any
person. From the provisions in these rules which have been quoted earlier the
scheme is clear that the legislature has vested wide powers in the executing
court to deal with all issues relating to such matters. It is a general impression
prevailing amongst the litigant public that difficulties of a litigant are by
no means over on his getting a decree for immovable property in his favour.
Indeed, his difficulties in real and practical sense, arise after getting the
decree. Presumably, to tackle such a situation and to allay the apprehension in
the minds of litigant public that it takes years and years for the decree
holder to enjoy fruits of the decree, the legislature made drastic amendments
in provisions in the aforementioned Rules, particularly, the provision in Rule
101 in which it is categorically declared that all questions including
questions relating to right, title or interest in the property arising between
the parties to a proceeding on an application under rule 97 or rule 99 or their
representatives, and relevant to the adjudication of the application shall be
determined by the Court dealing with the application and not by a separate suit
and for this purpose, the Court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to have
jurisdiction to decide such questions. On a fair reading of the rule it is
manifest that the legislature has enacted the provision with a view to remove,
as far as possible, technical objections to an application filed by the
aggrieved party whether he is the decree holder or any other person in
possession of the immovable property under execution and has vested the power
in the executing court to deal with all questions arising in the matter
irrespective of whether the Court otherwise has jurisdiction to entertain a
dispute of the nature. This clear statutory mandate and the object and
purpose of the provisions should not be lost sight of by the Courts seized of
an execution proceeding. The Court cannot shirk its responsibility by skirting
the relevant issues arising in the case.
--xxx--
19. From the
principles laid down in the decisions noted above, the position is
manifest that when any person claiming title to the property in his possession
obstructs the attempt by the decree-holder to dispossess him from the said
property the executing Court is competent to consider all questions raised by
the persons offering obstruction against execution of the decree and pass
appropriate order which under the provisions of Order 21 Rule 103 is to be
treated as a decree.”
(Emphasis
supplied)
47.In
Samir Singh and Anr. vs. Abdul Rab, reported in (2015) 1 SCC 379, this Court,
after considering its previous judgment in Brahmadeo
Chaudhary (supra) has held thus:-
“26. The aforesaid
authorities clearly spell out that the court has the authority to adjudicate
all the questions pertaining to right, title or interest in the property
arising between the parties. It also includes the claim of a stranger who
apprehends dispossession or has already been dispossessed from the immovable
property. The self-contained Code, as has been emphasised by this Court,
enjoins the executing court to adjudicate the lis and the purpose is to avoid
multiplicity of proceedings. It is also so because prior to 1976 amendment the
grievance was required to be agitated by filing a suit but after the amendment
the entire enquiry has to be conducted by the executing court. Order
XXI, Rule 101 provides for the determination of necessary issues. Rule 103
clearly stipulates that when an application is adjudicated upon under Rule 98
or Rule 100 the said order shall have the same force as if it were a decree.
Thus, it is a deemed
decree. If a Court declines to adjudicate on the ground that it does not have
jurisdiction, the said order cannot earn the status of a decree. If an
executing court only expresses its inability to adjudicate by stating that it
lacks jurisdiction, then the status of the order has to be different. (...)”
(Emphasis
supplied)
48.
A conjoint reading of the relevant provisions and the principles laid down
by this Court makes it clear that in execution of decree for possession of
immovable property, the executing court delivers actual physical possession of
the decretal land to the decree holder. Rule 35 confers jurisdiction on the
executing Court to remove any person, who is bound by the decree and who
refuses to vacate the property. The words “any person who is bound by the
decree”, clearly mandate that removal can only be of a person who is bound by
the decree. Rules 97 to 101 deal with situation when execution is obstructed or
resisted by “any person” claiming right, title or interest in the property. The
words “any person” include even a stranger to a decree resisting the decree of
possession as not being bound by a decree or by claiming independent right,
title or interest to the property.
49.
Thus, Rule 97 not only provides remedy to a decree holder in obtaining
possession of an immovable property but also to a stranger who obstructs or
resists delivery of possession of the property by claiming derivative title
from the judgment debtor or independent right, title or interest in the
decretal property. Whereas, Rule 99 gives right to a third party claiming
right, title or interest in the property to seek restoration of the decretal
property. Suffice it to say that the remedy under Rule 99 is available when a
person claiming right to the decretal property is already dispossessed.
50.
Rule 101 enjoins upon the executing Court dealing with application under Rule
97 or 99 to determine all questions including questions relating to right,
title or interest in the property, arising between the parties and relevant to
the adjudication of the application. As held by this Court in Silverline
Forum (supra) the question that the executing court is obliged to
determine under Rule 101 must possess to adjuncts viz. (i) that such question
should have legally arisen between the parties and (ii) such question must be
relevant for consideration and determination between the parties. Upon
adjudication of such questions, the executing court is under an obligation to
pass appropriate order as contemplated under Rule 98 or 100, as the case may
be. When eventually such order is passed, it would be treated as
decree and no separate Suit would lie against such order. It therefore
follows that the only remedy is to prefer an appeal before the appropriate
court against such deemed decree.
(iii) Section
47 of the CPC vis-à-vis Order XXI Rule 97 of the CPC
51.
Under Section 47 of the CPC, questions arising between the parties to
the suit relating to the execution, discharge or satisfaction of the decree are
covered whereas under Order XXI, Rule 97 read with rule 101 of the CPC,
questions including those relating to right, title or interest in the property
arising between the parties to the proceeding on an application under Rule 97
or Rule 99 of Order XXI are to be determined by the executing court. The language
of Rule 97 provides that where the holder of a decree for possession of
immovable property 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. The language used is “obstructed by any
person”. It may be by the judgment-debtor or by a third person. Sub-rule (2) of
the said Rule 97 further provides that where an application is made under
sub-rule (1), the court shall proceed to adjudicate upon the application in
accordance with the provisions there under contained. Sub-rule (2) of Rule
98 of Order XXI, further provides that where upon such determination, the Court
is satisfied that the resistance or obstruction was occasioned without any just
cause by the judgment-debtor or by some other person at his instigation or on
his behalf, he shall direct that the applicant be put into, possession of the
property. Rule 101 of Order XXI provides as under:
“101. Question to be
determined:-
All questions (including
questions relating to right, title or interest in the property) arising between
the parties to a proceeding on an application under rule 97 or rule 99 or their
representatives, and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application and not by a separate suit
and for this purpose, the Court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to have
jurisdiction to decide such questions.”
52.
Thus the cumulative effect of all these rights read together is that if an
application under Order XXI, Rule 97 is made, then its determination will be
under Rule 101 and then Rule 103 further provides that where any application
has been adjudicated upon under Rules 98 or 100, the order made thereon shall
have the same force and will be subject to the same conditions as to an appeal
or otherwise as if it were a decree. Under Section 47 of the CPC all
questions relating to the execution, discharge or satisfaction of
the decree, have to be determined by the executing court whereas under
Rule 101 all questions including question relating to right, title or interest
in the property arising between the parties to the proceedings have to be determined
by the executing court. Section 47 is a general provision whereas Order XXI
Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals
with executions of all kinds of decrees whereas Order XXI, Rules 97 and 101
deal only with execution of decree for possession. Apart from that, earlier,
i.e., prior to the amendment, every order falling under Section 47 was
appealable (as the terms ‘decree” included the order under Section
47 of the CPC) whereas now only certain orders as provided for under Order
XXI have been made appealable.
53.
In such circumstances referred to above the application of the
respondents No. 1 and 2 under Section 47 of the CPC bearing R.E.A.
No. 163 of 2011 was in substance an application for determination of their
possessory rights under Order XXI Rule 97.
54.
This Court in Bhanwar Lal v. Satyanarain, reported in (1995) 1 SCC 6, has
held that even an application filed under Section 47 would be treated as an
application under Order XXI Rule 97 and an adjudication is required to be
conducted under Rule 98. Dispossession of the applicant from the
property is not a condition for declining to entertain the application.
The relevant portion of the judgment is reproduced below:
“5. The procedure has
been provided in Rules 98 to 103. We are not, at present, concerned with the
question relating to the procedure to be followed and question to be determined
under Order 21, Rules 98 to 102. A reading of Order 21, Rule 97
CPC clearly envisages that “any person” even including the judgment-debtor
irrespective whether he claims derivative title from the judgment-debtor or set
up his own right, title or interest dehors the judgment-debtor and he resists
execution of a decree, then the court in addition to the power under Rule 35(3)
has been empowered to conduct an enquiry whether the obstruction by that person
in obtaining possession of immovable property was legal or not. The
decree-holder gets a right under Rule 97 to make an application against third
parties to have his obstruction removed and an enquiry thereon could be done.
Each occasion of obstruction or resistance furnishes a cause of action to the
decree-holder to make an application for removal of the obstruction or
resistance by such person.
6. When the appellant
had made the application on 25- 5-1979 against Satyanarain, in law it must be
only the application made under Order 21, Rule 97(1) of CPC. The executing
court, obviously, was in error in directing to make a fresh application. It is
the duty of the executing court to consider the averments in the petition and
consider the scope of the applicability of the relevant rule. On technical
ground the executing court dismissed the second application on limitation and
also the third application, on the ground of res judicata which the High Court
has in the revisions now upheld. The procedure is the handmaid of substantive
justice but in this case it has ruled the roost.
7. 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) CPC. 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 97(2) and Order 21, Rules 101 and 102 of
CPC.”
(Emphasis
supplied)
55.
Before we proceed further, we must look into some part of the reasonings of the
Executing Court as well as the High Court.
56.
The Executing Court in its order dated 12.08.2011 observed as under:
“1. The petition is
filed by the petitioners against the respondents under Section 47 CPC
stating that they are in possession of the suit properties; that their
objections should be enquired into and that the execution petition should be
dismissed.
2. Gist of the
Petition:
The petitioners are
defendants, in O.S.No.514/83. It was decided against the petitioners. The
petitioners are not aware of anything that has happened after the judgement
dated 2.4.86. On 20.2.08 the Court Amin, Respondents, the Village
Administrative Officers and few others came to the suit property, tried to
vacate the petitioners and take possession. In E.P.No.237/04, the
petitioners were not served with any notice. When they approached their
Advocate and stated the details, he told that the E.P. was filed against
Ramanujam and Jagadeesan.
Thereafter, the
petitioners have filed this petition of objection. The respondents have filed
R.E.P.No.237/04 praying for execution of the Sale Deed for the suit property.
The petitioners are added for namesake and no notice is served upon the
petitioners. Having impleaded these petitioners in the execution petition, not
sending notice to them is legally unsustainable. The respondents have filed
E.P.No.244/05 adding the petitioners as parties. But notice is not sent to the
petitioners. The E.P. was closed as not pressed.
On the basis of
C.R.P.No.2032/05, E.P.No.237 /04 is taken on file. Vihen the Revision is
pending before the High Court, the respondents have filed an execution
petition. The respondents have not approached the court with clean hands. Even
after E.P.No.237 /04 is taken on file, no notice was sent to the petitioners. A
sale deed dated 17.8.2007 was executed on behalf of the petitioners also.
Thereafter, another deed was written on 25.1.08 by removing the names of the
petitioners. The sale deed will not bind the petitioners. To show that the suit
properties are in the possession and enjoyment of the petitioners from 1967
till date, the Adangal register is filed. The petitioners will be put to
irreparable loss if delivery is ordered. The petition is to be allowed.
3. The gist of the Counter Statement filed by
the 7th respondent adopted by the respondents 1 to 6 and 8 is as follows:
The petition filed by
the petitioners is not maintainable. The petitioners are parties to
O.S.No.514/83 and also the subsequent proceedings thereafter. The petitioners
are the 1st defendant Ramanujam's sister's sons. The 1st petitioners filed a
suit in O.S.No.1384/1980 against Ayyavu Udayar, Ramanujam and others for
permanent injunction. In the said suit, Ramanujam objected the claim of the
petitioners and the suit was dismissed on 29.7.1982. As the petitioners were
continuously troubling the father of the respondents, they were added as
defendants 3 and 4 in the suit O.S.No.514/83. The defendants 1 and 2 filed an
appeal A.S.No.469/86 before the High Court adding the petitioners also as
parties. After the death of Ayyavu Udayar, these respondents were added as
respondents 4 to 11 therein. On 29.9.2000, the column 6 of the decree in
O.S.No.514/83 was removed and the appeal was dismissed. During the pendency of
the appeal, the 1st respondent and his son entered into an agreement with
Arivazhagan to sell the property.
Against the dismissal
of the appeal, the defendants 1 and 2 filed LP.A. No.62/2001 against the
petitioners and the respondents. As per the Order in LPA, the respondents
deposited a further sum of Rs.67,000/- before the Court on 19.4.04. During the
pendency of E.P.No.237/04, the defendants 1 & 2 filed SLP No.18184/2004
before the Supreme Court against the petitioners and the legal heirs of Ayyavu
Udayar. when a Memo was filed before this Court about the pendency of the SLP,
this Court dismissed the E.P. After the High Court Order, the execution
petition 237 / 04 was taken on file, on endorsement E.P.No.244/05 was dismissed
as not pressed. The LPA was dismissed on 20.1.2006. The defendants 1 & 2
filed a review petition No.359/06 and the same was dismissed on 18.4.06. The
petitioners are aware of all the proceedings upto the Supreme Court arid they
were also parties in the proceedings. The 1st petitioner Rajamani entered into
an agreement with one P.R. Jayakumar, Advocate.
O.S.No.197/87 is now
pending as 327/10. The petitioners do not have rights over the suit properties.
They do not have any rights w object delivery of possession. The petitioners
are not in possession of title suit properties. The petition is to be
dismissed.
4. Whether the
petition is bound to be allowed?
5. On the side of the
petitioners, PW-1 was examined and Exhibits P-1 to P-11 were marked. On the
side of the respondents, R- 1 was examined and Exhibits R-1 to R-16 were
marked.
6. ORDER:
Both the sides argued
their case on the basis of the petition and the reply filed by them. The case
records were considered. Stating that the petitioners are in possession of the
suit properties of O.S.No.514/83, on the side of the petitioners, the 2nd petitioner
Ethirajulu was examined as PW-1 and 11 documents were marked. The order passed
by the Tahsildar and RDO and six cultivation accounts are there.
On the side of the
respondents, the Jill respondent was examined as RW-1and16 documents were
marked.
On the side of the petitioners, it was argued
that the petitioners are in possession and enjoyment of the suit properties and
that Ramanujam & Jagadeesan are not in possession of the same. The
petitioners have filed the cultivation account and the orders passed by the
orders passed by the RDO and stated that they are in possession of the
properties. The documents filed by the petitioners confirm the same. The
petitioners have also stated that they are in possession of the properties from
1967.
On the side of the
respondents, the arguments by the petitioners were vehemently opposed and it
was stated that the petitioners do not have any right to object and oppose the
delivery of possession. The Ld. Counsel for the petitioners argued that Ihe
respondents have filed two execution petitions viz., E.P.No.237 /04 and
E.P.No.244/05. On perusal of the court records, it is seen that the respondents
filed E.P.No.237 /04 in 2004, got the sale deed and for delivery of possession
of property made prayer only against Ramanujam and Jagadeesan. and that the
petitioners are simply added as parties therein. When Ramanujam and Jagadeesan
filed a Memo before this Court that SLP is pending, E.P.No.237 /04 was
dismissed by this court. Challenging that order, the respondents filed Revision
Petition for restoration of E.P.No.237 /04. In the meantime, the respondents
filed the second execution petition E.P.No.244/05 against Ramanujam and
Jagadeesan. A prayer which is made in E.P.No.237 /04 is also made in the second
execution petition. In both the petitions, even though the names of Rajamani
and Ethirajulu are stated, the prayer is made only against Ramanujam and
Jagadeesan alone. The Senior Counsel appearing for the respondents has also
accepted the same. A perusal of the records also show that it is true that no
relief is claimed against the petitioners in column 9 of the E.P. and that
prayer is made in column 9 only against Ramanujam and Jagadeesan as accepted by
the Senior Advocate.
The Learned Counsel for the petitioners argued
that no notice was sent to the petitioners herein in the E.P. and that notice
was sent only to Ramanujam and Jagadeesan. A perusal of the court records also
shows that notice is sent from the court in the execution petition only to
Ramanujam and Jagadeesan. Even though the petitioners are shown as respondents
3 & 4 in the execution petition, no notice was sent to them, as no prayer
was made against them. The Senior Advocate for foe respondents has not denied
the same. In E.P. No.237/04, the court has executed the sale deed on behalf of
Ramanujam, Jagadeesan, Ethirajulu and Rajamani. Challenging the said order,
Ramanujam and Jagadeesan filed a revision before the Hon'ble High Court. The
Hon'ble High Court has also directed that the names of Rajamani and Ethirajulu
may be removed and this court has also executed a rectification deed removing
the names of the petitioners. The RW-1 has also accepted this fact in the cross
examination. The 1st respondent has also accepted in the cross examination that
Ramanujam and Jagadeesan filed C.R.P. before the High Court stating that it is
not proper to execute the sale deed on behalf of all the 4 persons; that it is
ordered by the High Court to remove the names of Rajamani and Ethirajulu and
execute the sale deed and that as the names of Rajamani and Ethirajulu are
removed, the sale deed is not binding so far as Rajamani and Ethirajulu are
concerned. It is accepted on the side of the respondents that the order and the
sale deed will not bind the petitioners. During the course of the course of the
argument by both sides, it was stated that O.S.No.52/ 11 is pending before this
court; that O.S.No.608/08 was filed before the District Munsif Court and that
on transfer, the same is pending as O.S.No.52/ 11. It is accepted by the respondents
that a suit for partition in respect of 3.60 acres, which is one item of the
suit property. So it is clear that the respondents have filed claiming half
share in the undivided 3 acres and 60 cents.
When PW-1 was cross-examined on the side of
the respondents, questions were asked about O.S.No.326/ 10, 327/10 and 328/10.
No details were asked for about O.S.No.52/ 11. The petitioners by oral and
documentary evidences have proved that they are in possession of the suit
properties. The Senior Advocate on the side of the respondents has also
admitted that when delivery was to be taken, the petitioners were m possession
and that prevented the effecting of delivery, the petitioners stated that they
will set fire to themselves by pouring kerosene. On the side of the
respondents, no favourable answers were obtained by addressing detailed
questions to PW-1. On perusal of foe records, it is seen that the petitioners
were added in all foe proceedings only nominally and no specific prayer is made
in the execution petition against the petitioners. While cross-examining PW 1
on the side of the respondents, suggestion was made that he is giving false
evidence only to prevent the effecting of delivery and to drag on the
proceedings and the PW-1 has denied the same. In RW 1’s evidence, it is seen
that the High Court has removed the names of Rajamani and Ethirajulu and as
Rajamani and Ethirajulu are nominally added, it will not affect their rights.
The judgement in O.S.No.514/83 win not bind the petitioners. In E.P. also, no
Bhatta was paid for sending notice to the petitioners. In E.P.No.237/04 and
E.P.No.214/05, relief is claimed in column 9 only against Ramanujam and
Jagadeesan.
On the side of the
respondents, it is proved that the possession of the suit property is wit.li
Ramanujam and Jagadeesan. It is not stated in their reply that the possession
of the suit property is with Ramanujam and Jagadeesan. No independent witness
was examined to show that Rajamani and Ethirajulu are not in possession and
that Ramanujam and Jagadeesan are in possession of the suit property. In both
the execution petitions, no prayer is made against the petitioners for delivery
of possession. The petitioners have proved that they are in possession. The
respondents have not produced the records relating to the proceedings in prior
litigations. It is not proved that the possession of the property is with
Ramanujam and Jagadeesan. As the respondents have not asked for any prayer in
the execution petition against the petitioners herein to prove that the
petitioners are in possession, as no acceptable reason is stated for not making
any prayer against foe petitioners, which affects the case of the respondents,
when the petitioners have proved their possessory rights over the suit
properties and also as the respondents can take possession only after taking
legal steps/ proceedings and also as the objections raised by the petitioners
are acceptable, this court holds that in the interest of justice, the petition
is to be allowed.”
57.
Thus, according to the Executing Court, although the respondent nos. 1 and 2
herein were impleaded as parties in the execution petition filed by the
appellants herein yet no notice was sent to them as there was no prayer made
against them. Secondly, according to the Executing Court the respondent nos. 1
and 2 have been able to establish that they are in possession of the suit
properties. In such circumstances, the objections raised by the respondent Nos.
1 and 2 herein under Section 47 of the CPC were upheld.
58.
The High Court while affirming the order passed by the Executing Court
proceeded altogether on a different footing. The High Court held as under:
“25. Even after
knowing the possession of the respondents 3 and 4 / defendants, in the earlier
occasion, after so many years, the decree holders, purposely did not ask the
Court to send notice to respondents 3 and 4 / defendants. In fact the
decree has also been passed against the respondents 3 and 4 / defendants, in
which the respondents 3 and 4 /defendants, are directed to hand over possession
to the decree holders. Only taking into consideration of the same, the learned
First Additional Subordinate Judge, Salem, had allowed the REA No. 163 of 2011
vi de order dated 12.08.2011, by holding that since, no notice is served to
respondents 3 and 4/ defendants, the Court cannot pass any order directing the
respondents 3 and 4/ defendants, to deliver possession and thereby their right
of possession, is no way effected. Therefore, this Court is of the considered
view that the said proposition taken by the court below do not have any
material irregularity.
26. However, it is the
duty of the Court below to dismiss the REP No.237 of 2004, after allowing the
application filed in REA No. 163 of 2011 (47 CPC). But the learned First
Additional Subordinate Judge, Salem, without following the consequential
procedure, allowed the revision petitioners/decree holders to file applications
for amending the execution petition. Since the right of the respondents 3 and
4/ defendants are determined in REA No. 163 of 2011, the question of subsequent
amendment in virtually does not arise on the date. So far as respondents 3
and 4 are concerned, no execution petition was pending.
Under the said
circumstances, amendment petitions are not maintainable. Therefore, this Court
is of the firm view that the amendment applications filed in REA Nos. 14 of
2012 and 145 of 2013, are not maintainable in liminie.
27. The decree holders
should have taken steps to amend the execution petition atleast after seeing
the defence set up by the respondents 3 and 4/defendants in the REA No. 163 of
2011. But they have not taken any steps to amend the execution petition till the
disposal of application filed under Section 47 CPC. More than that,
the decree holder / revision petitioners, after knowing the result of REA
No. 163 of 2011 in the year 2011, till 2015 they have not preferred any
appeal against the order passed in the petition filed under Section
47 CPC. The reason for not filing the appeal or revision, immediately, is
not explained on the side of the revision petitioners/decree holders. Though
the procedure is meant to advance cause of justice, it is for the litigants to
watch the proceedings, then and there, without any delay, with care and vigil.
28. Therefore, in the
light, of the above discussions, this Court is of the opinion that the impugned
order passed in the petition filed under Section 47 CPC is not having
any material irregularity and thereby, the order dated 12.08.2011 made in REA
No.163 of 2011 in REP No.237 of 2004 in OS No.514 of 1983, is sustained and CRP
No.4311 of 2011, is dismissed.
29. Further, as
already observed, after allowing the application filed under Section
47 CPC, the Execution Petition has to be closed. But for the reasons best
known, the execution petition filed by the revision petitioners/ decree holders
was kept alive and thereafter, the revision petitioners/ decree holders took
the applications for amendment. In fact, the same is not maintainable.
Therefore, the orders dated 24.04.2015 made in REA Nos.14 of 2012 and 145 of
2013 in REP No.237 of 2004 in OS No.514 of 1983, are also sustained and CRP
Nos.2150 & 2151 of 2015, are dismissed. No costs. Consequently, the
connected Miscellaneous Petitions are closed.”
59.
It appears that the Courts below proceeded absolutely on a wrong footing.
What
the courts below should have considered is the simple fact whether the
obstruction at the end of the respondent nos. 1 and 2 of the execution of the
decree of specific performance and possession of the suit property
could be said to be bona fide and genuine. In other words, the
consideration at the end of both the courts should have been whether the respondent
nos. 1 and 2 herein being nephews of the original venders are acting in
collusion with each other only with a view to frustrate and defeat the decree.
60.
We are of the view that the Courts below failed to consider the following:
a. The respondent Nos.
1 and 2 respectively are nephews of the vendors and claim to have come into
possession of the suit property in the year 1983 when the suit was first
instituted by the appellants before the ASJ.
They were impleaded in
the original suit as the defendant Nos. 3 and 4 respectively.
b. The decree in
favour of the appellants granting specific performance with possession was
affirmed by the High Court on 19.03.2004 and the SLP against the order of the
High Court stood dismissed on 20.01.2006.
The respondent Nos. 1
and 2 respectively chose not to contest the original suit before the ASJ. They
did not appear even before the High Court and this Court in the appeals filed
by the vendors (judgment debtors).
c. The respondent Nos.
1 and 2 were also impleaded in the execution petition bearing R.E.P. No. 237 of
2004 and the order of the High Court dated 21.02.2006 indicates that they
had appeared through their advocate and were aware about the said execution
petition.
d. The Executing Court
executed the sale deed on 17.08.2007 and ordered for delivery of possession of
the suit property to the appellants. When such order was sought to be effected
by the appellants along with the Village Administrative Officer, the respondent
no. 1 obstructed the delivery of possession.
e. Thereafter, the
respondent Nos. 1 and 2 respectively filed an execution application R.E.A. No.
163 of 2011 on 12.03.2008 alleging fraud on the part of the appellants saying
that they were not aware about the execution proceedings. At this stage, the
respondent no. 2 brought onto the record for the first time that he along with
the respondent no. 1 were cultivating the land constituting the suit property.
f. The respondent Nos.
1 and 2 respectively, after seven months i.e. on 18.10.2008 filed a petition
before the revenue authorities for inclusion of their names in the cultivation
account of the suit property and prayed that the same be done retrospectively
from the year 1974. Though, the revenue authorities only allowed for inclusion
of their names from 2008 onwards yet they were granted certificate that they
were in possession of the suit property from 1974 onwards. Such
certificate was provided to them on the basis of the “no objection” given by
the vendors (judgment debtors) as they were considered to be title holders of
the said property. From the facts on record, it can be discerned that the
revenue authorities were not made aware of the sale deed executed in favour of
the appellants herein and that the title of the suit property stood transferred
to them.
61.
It further appears that the respondent Nos. 1 and 2 respectively, claiming to
be cultivating tenants, had contended before the courts below that the civil
court lacked jurisdiction to adjudicate on matters pertaining to possession of
the suit property and eviction there from. The respondents submitted that the
decree passed in the original suit was a nullity and therefore, the validity of
the decree could be challenged even during the execution proceedings.
62.
A harmonious reading of Section 47 with Order XXI Rule 101 implies that
questions relating to right, title or interest in a decretal property must be
related to the execution, discharge or satisfaction of the decree. The import
of such a reading of the provisions is that only matters arising subsequent to
the passing of the decree can be determined by an executing court under Section
47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions
of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1
SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in
(1970) 1 SCC 670, wherein it has been held that while determining a question
under Section 47, an executing court cannot go behind the decree and question
the correctness of the same.
63.
What flows from the position of law, as afore stated, is that the issues that
ought to have been raised by the parties during the adjudication of the
original suit cannot be determined by the executing court as such adjudication
may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra
Kumar Gandhi reported in (2021) 6 SCC 418 has held that the benefit of
Section 47 cannot be availed to conduct a retrial causing failure of
realisation of fruits of the decree. The relevant portion of the judgment is
reproduced below:
“24. In respect of
execution of a decree, Section 47 CPC contemplates adjudication of
limited nature of issues relating to execution i.e. discharge or satisfaction
of the decree and is aligned with the consequential provisions of Order 21
CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays
down the procedure and the form whereby the court reaches a decision. For the
applicability of the section, two essential requisites have to be kept in mind.
Firstly, the question must be the one arising between the parties and secondly,
the dispute relates to the execution, discharge or satisfaction of
the decree. Thus, the objective of Section 47 is to prevent unwanted
litigation and dispose of all objections as expeditiously as possible.
25. These provisions
contemplate that for execution of decrees, executing court must not go beyond
the decree. However, there is steady rise of proceedings akin to a retrial at
the time of execution causing failure of realisation of fruits of decree and
relief which the party seeks from the courts despite there being a decree in
their favour. Experience has shown that various objections are filed before the
executing court and the decree-holder is deprived of the fruits of the
litigation and the judgment-debtor, in abuse of process of law, is allowed to
benefit from the subject-matter which he is otherwise not entitled to.
26. The general
practice prevailing in the subordinate courts is that invariably in all
execution applications, the courts first issue show-cause notice asking the
judgment-debtor as to why the decree should not be executed as is given under
Order 21 Rule 22 for certain class of cases. However, this is often
misconstrued as the beginning of a new trial. For example, the judgment-debtor
sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set
up an oral plea, which invariably leaves no option with the court but to record
oral evidence which may be frivolous. This drags the execution proceedings
indefinitely.
27. This is antithesis
to the scheme of the Civil Procedure Code, which stipulates that in civil suit,
all questions and issues that may arise, must be decided in one and the same
trial. Order 1 and Order 2 which relate to parties to suits and frame of suits
with the object of avoiding multiplicity of proceedings, provides for joinder
of parties and joinder of cause of action so that common questions of law
and facts could be decided at one go.”
(Emphasis
supplied)
64.
In the present case, the appellants have pleaded in their plaint that the
respondent Nos. 1 and 2 respectively were impleaded therein as defendants as
they were in possession of the suit property. However, the respondent Nos. 1
and 2 chose not to contest the suit despite being aware of the prayer of the
appellant for delivery of possession of the suit properties. They could have
filed a joint written statement stating that they are cultivating tenants at
the stage of the original suit itself, but rather raised the said issue in the
form of objections at the stage of execution.
65.
Furthermore, the respondent Nos. 1 and 2 failed to produce any documentary
evidence as regards their claim of being cultivating tenants, even at the stage
of their Section 47 application. Instead, they filed for registration of their
names in the cultivation account of the suit property only in 2008 and prayed
for retrospective inclusion of their names from 1974. While the Revenue
authorities declined the retrospective inclusion of the respondents’ names as
cultivating tenants from 1974, it allowed for their inclusion in the
cultivation account of the suit property starting from 2008 onwards. The
revenue authorities also ordered for grant of certificate to the
respondent Nos. 1 and 2 certifying that they were in possession of the suit
property from 1974 on the strength of the “no objection” provided by the
vendors.
66.
The respondent Nos. 1 and 2 are asserting their independent right to remain in
possession of the suit land and consequent protection under the Tamil Nadu
Cultivating Tenants’ Protection Act, 1955, owing to their status of being
cultivating tenants granted in 2008 by the Revenue authorities.
67.
It is worthwhile to revisit the facts that the High Court and this Court had
affirmed the decree of specific performance with possession in favour of the
appellants in the year 2004 and 2006 respectively. Subsequently, the sale deed
was executed by the Executing Court on 17.08.2007 thereby transferring title of
the suit property to the appellants. Despite such confirmation of the decree
and transfer of title in favour of the appellants, it is incomprehensible why a
notice was sent to the vendors by the revenue authorities in 2008. Further, the
vendors gave “no objection” to the grant of certificate of possession to the
respondent Nos. 1 and 2 from 1974 despite not having any authority to do so in
light of the sale deed dated 17.08.2007.
68.
In our considered view, the aforesaid by no stretch of imagination can be
construed to be a legal right of possession existing independently from the
title of the vendors which has now stood transferred to the appellants. It is
nothing but a case of apparent collusion between the vendors and the respondent
Nos. 1 and 2 to deprive the appellants from availing the fruits of the decree
in their favour.
69.
Even otherwise, the respondent Nos. 1 and 2 cannot claim protection of the
special legislation of 1955 for the period during which they were not
registered as tenants cultivating the suit properties. In our view, the
certificate that they are in possession of the suit properties since 1974 does
not come to their aid. We say so, because the said certificate does not establish
any independent right of possession in favour of the respondent Nos. 1 and 2.
Further, the certificate itself appears to have been obtained in collusion with
the vendors who at the time of giving “no objection” had ceased to be the
owners of the suit property.
70.
In such circumstances referred to above, we find it extremely difficult to
accept that the respondent Nos. 1 and 2 are bona fide cultivating tenants of
the suit property and thus, the determination of the question of them being in
possession of the same must necessarily go against them and in favour of
the appellants. Therefore, there is no question of deciding the validity
of the decree on the ground of being a nullity due to lack of jurisdiction of
the civil court to evict cultivating tenants.
71.
In such circumstances referred to above, we have reached the conclusion
that the High Court committed an egregious error in passing the impugned order.
We must now ensure that the appellants are able to reap the fruits of the
decree. We are also of the view that the rejection by the High Court of the
amendments to the execution petition filed by the appellants, was erroneous and
deserves to be set aside.
72.
Before we close this matter, we firmly believe that we should say something as
regards the long and inordinate delay at the end of the Executing Courts across
the country in deciding execution petitions.
73.
It is worthwhile to revisit the observations in Rahul S. Shah (supra)
wherein this Court has provided guidelines and directions for conduct of
execution proceedings. The relevant portion of the said judgment is
reproduced below:
“42. All courts
dealing with suits and execution proceedings shall mandatorily follow the below
mentioned directions:
42.1. In suits
relating to delivery of possession, the court must examine the parties to the
suit under Order 10 in relation to third-party interest and further
exercise the power under Order 11 Rule 14 asking parties to disclose and
produce documents, upon oath, which are in possession of the parties including
declaration pertaining to third-party interest in such properties.
42.2. In appropriate
cases, where the possession is not in dispute and not a question of fact for
adjudication before the court, the court may appoint Commissioner to assess the
accurate description and status of the property.
42.3. After
examination of parties under Order 10 or production of documents under Order 11
or receipt of Commission report, the court must add all necessary or proper
parties to the suit, so as to avoid multiplicity of proceedings and also make
such joinder of cause of action in the same suit.
42.4. Under Order
40 Rule 1 CPC, a Court Receiver can be appointed to monitor the status of the
property in question as custodia legis for proper adjudication of the matter.
42.5. The court must,
before passing the decree, pertaining to delivery of possession of a property
ensure that the decree is unambiguous so as to not only contain clear
description of the property but also having regard to the status of the property.
42.6. In a money suit,
the court must invariably resort to Order 21 Rule 11, ensuring immediate
execution of decree for payment of money on oral application.
42.7. In a suit for
payment of money, before settlement of issues, the defendant may be required to
disclose his assets on oath, to the extent that he is being made liable in a
suit. The court may further, at any stage, in appropriate cases during
the pendency of suit, using powers under Section 151 CPC, demand
security to ensure satisfaction of any decree.
42.8. The court
exercising jurisdiction under Section 47 or under Order 21 CPC, must not
issue notice on an application of third party claiming rights in a mechanical
manner. Further, the court should refrain from entertaining any such
application(s) that has already been considered by the court while adjudicating
the suit or which raises any such issue which otherwise could have been raised
and determined during adjudication of suit if due diligence was exercised by
the applicant.
42.9. The court should
allow taking of evidence during the execution proceedings only in exceptional
and rare cases where the question of fact could not be decided by resorting to
any other expeditious method like appointment of Commissioner or calling for
electronic materials including photographs or video with affidavits.
42.10. The court must
in appropriate cases where it finds the objection or resistance or claim to be
frivolous or mala fide, resort to sub-rule (2) of Rule 98 of Order 21 as well
as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section
60 CPC the term “… in name of the judgment-debtor or by another person in
trust for him or on his behalf” should be read liberally to incorporate any
other person from whom he may have the ability to derive share, profit or
property.
42.12. The executing
court must dispose of the execution proceedings within six months from the
date of filing, which may be extended only by recording reasons in writing
for such delay.
42.13. The executing
court may on satisfaction of the fact that it is not possible to execute the
decree without police assistance, direct the police station concerned to
provide police assistance to such officials who are working towards execution
of the decree. Further, in case an offence against the public servant while
discharging his duties is brought to the knowledge of the court, the same must
be dealt with stringently in accordance with law.
42.14. The Judicial
Academies must prepare manuals and ensure continuous training through
appropriate mediums to the court personnel/staff executing the warrants,
carrying out attachment and sale and any other official duties for executing
orders issued by the executing courts.”
(Emphasis
supplied)
74.
The mandatory direction contained in Para 42.12 of Rahul S.
Shah (supra) requiring the execution proceedings to be completed within
six months from the date of filing, has been reiterated by this Court in its
order in Bhoj Raj Garg v. Goyal Education and Welfare Society & Ors.,
Special Leave Petition (C) Nos. 19654 of 2022.
75.
In view of the aforesaid, we direct all the High Courts across the country to
call for the necessary information from their respective district judiciary as
regards pendency of the execution petitions. Once the data is collected
by each of the High Courts, the High Courts shall thereafter proceed to
issue an administrative order or circular, directing their respective district
judiciary to ensure that the execution petitions pending in various courts
shall be decided and disposed of within a period of six months without fail
otherwise the concerned presiding officer would be answerable to the High Court
on its administrative side. Once the entire data along with the figures of
pendency and disposal thereafter, is collected by all the High Courts, the same
shall be forwarded to the Registry of this Court with individual reports.
76.
Registry is directed to forward one copy each of this judgment to all the High
Courts at the earliest.
77.
The Registry shall notify this matter once again after seven months only for
the purpose of reporting compliance of the directions issued by us referred to
above.
F.
CONCLUSION
78.
In the result, the appeals succeed and are hereby allowed. The impugned
judgment passed by the High Court is hereby set aside. The order passed by the
Executing Court is also hereby set aside.
79. The Executing Court shall now proceed to
ensure that vacant and peaceful possession of the suit property is handed over
to the appellants in their capacity as decree holders and if necessary, with
the aid of police. This exercise shall be completed within a period of two
months from today without fail.
80.
Pending applications, if any, shall stand disposed of.
------