Sunday, 18 March 2018

Good legal article on Obstructionist proceeding in execution of decree

Obstructionist proceeding, scope and nature of inquiry
1. It is said that justice must not only be done but it must appears to have
been done. In justice delivery system only passing of decree is not an aim but its
achievement lies in the execution of decrees. Execution of decree is a real justice to
the people. Once decree is passed by the court, the court is bound to enforce its
execution peacefully and without causing any obstruction or resistance either by
judgment debtor or by a third person.
2. The provisions contained in section 51 to 74 of CPC deal with the
substantive law relating to execution of decree.  The numerous rules of order XXI of
the Code take care of different situations, providing effective remedies not only to
decree holder, auction purchaser and Judgment debtors but also to objectors claiming
independent   rights,   title   and   interest   in   the   property.   Third   party   may   make   an
application to the executing court for ventilating their grievances. 


Rights of decree­holder/auction purchaser and obstructionist:

3.  If a decree­holder, 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 XXl, Rule 35
then the decree­holder has to move an application under Order XXl, Rule 97 for
removal of such obstruction and after hearing the decree­holder and the obstructionist
the Court can pass appropriate order after adjudicating upon the controversy between
the parties as per R. 97 sub­rule (2) of Order XXI of CPC,  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 97 sub­rule (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   103   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.
24.  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 XXl, rule 99, cpc claiming that his dispossession was illegal
and that possession deserves to be restored to him.
25. In the case of [Bramhadeo Chaudhary Vs. Rishikesh Prasad Jaiswal
(AIR 1997(S.C.) 856)], the Hon'ble Apex Court has observed that :­
    “  If   a   Decree­holder   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
manner by obtaining warrant for possession under O. 21 Rule 35 of Code of Civil
Procedure, then the decree­holder has to move an application under order 21 Rule 97
of Code of Civil Procedure. Court can pass appropriate order after adjudicating upon
the controversy between the parties.”
Scope of inquiry:
26.  If   the   resistance   is   from   judgment   debtor   or   any   person   claiming
through him, then the scope of inquiry will be of summary nature and if the resistance
is from a third person claiming independent right, tile or interest in the immovable
property then the scope of inquiry will be wider. It is desirable for the executing court
to hear the objection of third party as a suit. The executing court can even frame the
issues and call upon the parties to lead the evidence,
Nature of inquiry :
27.  Order   XXI   lay   down   a   complete   code   for   resolving   all   disputes
pertaining to execution of decree for possession obtained by a decree­holder and
whose   attempts   at   executing   the   said   decree   meet   with   rough   weather.   Once
resistance is offered by a stranger to the decree and which is noted by the Executing
Court as well as by the decree­ holder, the remedy available to the decree­holder
against such an obstructionist is only under Order XXI, Rule 97 sub­rule (1) and he
cannot by­ pass such obstruction and insist on re­issuance of warrant for possession
under Order XXI, Rule 35 with the help of police force, as that course would amount
to by passing 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.
28.  In view of above discussion regarding obstruction proceeding, nature
and scope of inquiry under Sec. 74 read with O.XXI Rule 97 to 106 of CPC, it can be
summarized that O.XXI of CPC is an independent Code in itself and it not only
provide procedure to be followed by the decree­ holder to get the fruits of the decree,
at the same time it provides an opportunity to the judgment­debtor or the third party/
objection petitioner to raise the grievances or objection in the execution proceeding
itself.   Recourse   to   independent   proceedings   by   filling   a   separate   suit   is   clearly
prohibited. Therefore, objections if any, are raised by the judgment­debtor or the
third partly in execution proceedings, the same are required to be adjudicated by
executing court following the same procedure as if it was a suit and the orders by the
executing court having the force of a decree.

another , (AIR 1998 SC 1754), the Hon'ble Apex Court observed that, 
"  The words " all questions arising between the parties to a  proceeding on an
application under rule 97 would envelop only such questions as would legally arise
for determination between those parties. In other words, the Court, is not obliged to
determine a question merely because the resistor raised it. The   questions which20
executing Court is  obliged to determine under rule  101 must possess to adjuncts.
First is that   such questions should have legally arisen between the parties, and
second   is,   such   questions   must   be   relevant   for   consideration   and   determination
between the parties, e.g. if the obstructer admits that he is transferee pendent lite, it is
not necessary to determine a question raised by him that   he was unaware of the
litigation when he purchased  the property. Similarly, a third party, who questions the
validity of a transfer made by decree holder to an assignee, cannot claim that the
question   regarding   its   validity   should   be   decided   during   execution   proceeding.
Hence, it is necessary that the questions raised by the resistor or the obstructer must
legally arise between him an the decree holder.  

Riyaz Khan s/o Rahim Khan Vs. Dnyaneshwar Vitthalrao Chamat & ors.
2015 (8) LJSOFT (NAG) 87
Code of Civil Procedure, 1908­ Order XXI Rule 97(2)­ Section 47­Decree of
eviction_ Execution proceedings­Objection­Nature of enquiry. Execution of decreeAppellant
raised an objection claiming to be the legal heir of tenant being son from
the first wife­Adjudication under Order 21 Rule 97(2) of CPC need not necessarily
involve a  detailed enquiry or collection of evidence­Court can make the adjudication
on admitted facts or even on the averments made by the resistor­On appreciation of
material on record the courts below found that the appellant/objector has failed to
establish his possession over the suit property and it is not necessary to direct the
parties to adduce evidence­Not a case where the appellant can be permitted to lead
evidence in support of the objection raised.
Result : Appeal dismissed.

Whether small cause court has jurisdiction to execute decree against trespassers?


 Clearly the provisions contained under Order 21 of Code of Civil Procedure are applicable for execution of the decrees for eviction passed by the Small Causes Court. In execution of such decree if any obstruction is put by any person including the judgment debtor or somebody at his behest or by third party, the matter has to be dealt with by executing Court i.e. Small Causes Court in accordance with the procedure contemplated under Code of Civil Procedure. In this view of the matter, it cannot be said that obstruction notice under Order 21, Rule 97 could not have been taken out by the decree holder when an obstruction was put to the possession by the petitioners. Order 21, Rule 101 provides that all questions (including questions relating to right, title and interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representative, and relevant to the adjudication of 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.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5967 of 1996

Decided On: 10.12.1996

 Harjot Singh Jaspal and Ors. Vs. Koran Govindan and Ors.

Hon'ble Judges/Coram:
R.M. Lodha, J.

Citation:1997(1) MHLJ 845,1997(4) BomCR 435 ,1997(2) ALLMR 372
Read full judgment here: Click here
 

Whether person claiming through judgment debtor can resist execution of decree?

 It, therefore, follows that, when the appellants are claiming
possession over the suit land on the basis of the tenancy created during
pendency of the Suit, then such tenancy or possession being hit by the
principle of lis pendens, under Section 52 of the Transfer of Property Act,
they have no right at all to resist execution of the decree. The law on this
aspect is no more res integra and no authority is required to state the
legal position that an obstructionist can successfully resist execution of
the decree only he is able to establish his independent right, title over the
property. In this case, on their own pleadings and evidence, the appellants
have miserably failed to do so, as they are claiming through the
Judgment-Debtor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.797 OF 2016

Veljiben V. Satra 
 V
 Kanaiyalal Purshottamdas Shah 
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 5 TH OCTOBER 2016.
Citation: 2017(1) MHLJ 335 Bom
Read full judgment here: Click here
Print Page

No comments:

Post a Comment