Law Web: Whether the court can dismiss execution proceeding the decree-holder has lost possession to a third party/encroacher?

In most recent judgment in “Jini Dhanrajgir & Anr. Vs.

Shibu Mathew & Anr.” (2023) SCC Online SC 643, the legal

position has been reiterated that Rules 97 to 103 of Order XXI

of the CPC provide the sole remedy both to the parties to a suit

as well as to a stranger to the decree put to execution.

{Para 14}

15. In view of the settled legal position, as noted (supra), it

was the duty of the Executing Court to issue warrant of

possession for effecting physical delivery of the suit land to the

decree-holder in terms of suit schedule property and if any

resistance is offered by any stranger to the decree, the same

be adjudicated upon in accordance with Rules 97 to 101 of

Order XXI of the CPC. The Executing Court could not have

dismissed the execution petition by treating the decree to be

inexecutable merely on the basis that the decree-holder has

lost possession to a third party/encroacher. If this is allowed to

happen, every judgment-debtor who is in possession of the

immoveable property till the decree is passed, shall hand over

possession to a third party to defeat the decree-holder’s right

and entitlement to enjoy the fruits of litigation and this may

continue indefinitely and no decree for immovable property can

be executed.

2023INSC764

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. ____________ OF 2023

(Arising out of SLP(C) Nos. 12601-12602 of 2017)

SMT. VED KUMARI Vs MUNICIPAL CORPORATION OF DELHI

Author: PRASHANT KUMAR MISHRA, J.

Dated: AUGUST 24, 2023.

Leave granted.

2. These appeals arise from the judgment and orders dated

07.04.2016 and 04.11.2016 passed in C.R.P No. 152 of 2012

and R.P No. 487 of 2016 respectively, whereby the High Court

has affirmed the order of the Executing Court dated

11.09.2012 holding that the decree for possession of

immoveable property is not executable against the judgmentdebtor.

3. The factual matrix of the case is that the appellant (since

deceased represented through Lrs.) who is the original plaintiff,

leased out land measuring 400 sq. yds. out of Khasra No.

4/39/1 situated at village Khureji Khas, Abani Radheypuri,

Ilaqa Shahdara, Delhi (hereinafter referred to as ‘the Suit

Land’) within the limit of Municipal Corporation Delhi vide

lease deed dated 06.01.1973 to the respondent-Corporation

(Original defendant) for a period of 10 years initially @ monthly

rent of Rs. 30/-, which was renewable with the consent of both

the parties, however the lease was not renewed subsequently

after expiry on 06.01.1983. Thereafter, the appellant served a

notice upon the respondent-Corporation dated 02.12.1987 vide

which the respondent-Corporation was called upon to hand

over the peaceful vacant possession of the Suit Land on or

before 06.01.1988. The respondent-Corporation did not turn to

the demand of the appellant.

3.1 The appellant/plaintiff filed Suit No. 205 of 1988 for

recovery of possession in respect of the Suit Land against

respondent-Corporation/defendant before the Sub-Judge, Ist

Class, Delhi, which was decreed for possession in favour of

appellant/plaintiff and against the respondent-

Corporation/defendant on 23.03.1990.

3.2 Thereafter, the appellant filed execution proceedings

bearing Execution Case No. 7 of 1991 to get the decree for

possession executed against the judgment-debtor i.e.

respondent-Corporation. On 03.12.1993, the appellant/decreeholder

obtained warrants for delivery of possession from the

Executing Court against the respondent-Corporation. When the

appellant/decree-holder along with the police force went on

spot to execute the warrants they were resisted and because of

such high-handed behaviour including, inter alia, the threats of

the employees/agents of the respondent-Corporation to

intimidate the appellant, warrants for delivery of possession

could not be executed.

3.3 At this stage, the respondent-Corporation moved an

application before the Executing Court to stay the operation of

the warrants for delivery of possession earlier issued. The

Executing Court stayed the execution proceedings until

15.04.1994, while taking into consideration that the demolition

of the school building upon the decretal land would affect the

career of around 400 students.

3.4 The respondent-Corporation filed objections on the ground

that the spot at which the school is built admeasures 1700

square yards and the disputed decretal land cannot be

identified. The said objections were rejected by the Executing

Court vide order dated 27.05.1994.

3.5 On 19.08.1994, the appellant filed an application for

issuance of fresh warrants of possession and the respondent-

Corporation on the same day also moved an application to stay

the execution proceedings on the ground that the respondent-

Corporation had undertaken land acquisition proceedings of the

decretal land. By a subsequent application dated 01.03.1996

the respondent-Corporation stated that it had deposited a sum

of Rs. 1,60,000/- with the Land Acquisition Commissioner,

Delhi.

3.6 The Executing Court vide order dated 19.03.1999

dismissed the said applications of the respondent-Corporation

on the ground that the respondent-Corporation had not made

any serious effort in a span of eight years to acquire the

decretal land and that the acquisition of the decretal land can

take place even after the same is handed over to the appellant.

3.7 On account of the refusal of the respondent-Corporation

to hand over possession of the decretal land to the appellant,

the appellant filed a Contempt Petition before the High Court of

Delhi against the respondent-Corporation which was registered

as CC No. 126 of 1999, alleging non-compliance of the order of

the Trial Court. The Contempt Petition was disposed of vide

order dated 20.02.2003 with directions that it would be open to

the appellant to take recourse to such steps as may be

permissible for the appellant under the law for getting the

encroachers evicted.

3.8 Upon disposal of the Contempt Petition, the appellant

once again got issued warrants for possession of decretal land.

Pursuant to the directions of the Executing Court, the

respondent-Corporation submitted demarcation reports dated

13.04.2001 and 24.07.2002 in respect of the suit land and

raised the issue of acquisition of the said property.

3.9 The Executing Court vide its order dated 11.09.2012 while

taking into consideration the demarcation reports dismissed the

Execution Petition filed by the appellant on the ground that the

encroacher(s) upon the land in question were not ‘party to the

suit’ and, therefore, the decree could not be executed.

3.10 Being aggrieved by the dismissal of the execution

petition, the appellant preferred a Revision Petition before the

High Court of Delhi which was dismissed vide order dated

07.04.2016 while holding that the appellant has not, despite

specific directions, taken any steps to get the encroacher(s)

identified.

3.11 The appellant being dissatisfied sought review of the

judgment and order dated 07.04.2016 by filing review petition,

which saw the same fate as the revision petition.

Hence these appeals by way of petitions for special leave

to appeal.

4. We have heard Mr. Neeraj Kishan Kaul and Mr. Gopal

Sankaranarayanan, learned senior counsel for the appellant

and Mr. Praveen Swarup, learned counsel for respondent and

perused the material placed on record.

5. Learned senior counsel for the appellant/decree-holder

strenuously contended that since admittedly the respondent-

Corporation executed a lease deed and remained in possession

of the suit land as a tenant, which fact is established in favour

of the appellant/decree-holder in the suit as also in the

execution proceedings, at various stages, it is wholly

inappropriate for the respondent-Corporation to contend that it

is not in possession of the suit land. It is further contended

that while resisting delivery the judgment-debtor clearly stated

that demolition of the school building for effecting delivery of

possession would affect around 400 students and that it is

taking steps to acquire the suit land and this fact would itself

demonstrate that the judgment-debtor is in possession of the

suit land. Even if the suit land is subsequently encroached by a

third party, the judgment-debtor cannot escape the liability of

satisfying the decree.

It is next contended that any encroachment on the suit

land when it was possessed by the judgment-debtor would not

nullify the execution proceedings and it is the duty of the

respondent-Corporation, as a local authority, to identify the

encroacher, if any, so that effective steps are taken by the

Executing Court to deliver physical vacant possession to the

decree-holder.

Learned senior counsel would further contend that Order

XXI of the Code of Civil Procedure, 1908 (CPC) is a complete

code for resolving all disputes, including against strangers to

the decree. Therefore, the execution proceedings could not

have been dropped by the Executing Court.

6. Per contra, learned counsel for the respondent-

Corporation would submit that the suit land is not under the

possession of the respondent-Corporation rather it is in

possession of the encroachers who should have been identified

by the decree-holder. It is the specific case of the respondent-

Corporation that as per the demarcation report dated

24.07.2002 the land has been identified and the suit land is

found situated in the North, 36’ away/outside the boundary

wall of the school, where some houses have been constructed

by unknown persons and the same is not in possession of the

respondent-Corporation and for this reason, the acquisition

proceedings were dropped.

Supporting the impugned order, it is lastly contended, by

way of an alternative submission in para 9 of the written

submissions, that though the Executing Court has powers of

execution under Order XXI Rules 97 to 101 of the CPC, it can, if

permissible in law, take action against the persons who are in

possession of the disputed land, or, the decree-holder may file

a fresh suit against the encroachers.

DISCUSSION

7. In the judgment and decree dated 23.03.1990, the Trial

Court categorically held that the respondent-Corporation is the

lessee and since the lease has already been determined upon

expiry of lease period of 10 years, the respondent-

Corporation/defendant is bound to deliver physical vacant

possession of the suit land and also to pay the rent and that

the appellant/plaintiff is entitled to a decree of ejectment and

delivery of vacant possession by the respondent-

Corporation/defendant in respect of the suit land as shown red

in the site plan in Exhibit P4. The respondent-

Corporation/defendant was also directed to hand over the

possession of the suit land after removing the construction.

This decree has attained finality.

8. In the course of execution, it was the stand of the

respondent-Corporation, at various stages, that grave

prejudice would be caused to the students studying in the

school building constructed on the suit land, therefore, instead

of delivering the possession, it is in the process of acquiring the

decretal land, which stand it continued to take from 1994 till

March, 1999, at which point the respondent-Corporation’s

application not to execute warrant of possession was dismissed

by the Executing Court on the ground that it has not made any

serious effort to acquire the decretal land for about eight years.

9. Surprisingly, for the first time, on 18.09.2009, the

respondent-Corporation informed the Executing Court that the

suit land is not in its possession and the same has been

encroached upon. On this information of the Judgment/debtor,

the Executing Court directed it to disclose whether the land,

which the respondent-Corporation is stating to have been

encroached upon, is the suit land and if so, then, to disclose as

to when the suit land was vacated by the respondent-

Corporation. Yet again, on 16.04.2010, the Executing Court

observed that till date the respondent-Corporation has not

disclosed the fact that as to with whom the suit land presently

lies and the Deputy Commissioner of the respondent-

Corporation was directed to reply to this query by way of filing

an affidavit. When the affidavit was filed, the Executing Court

observed that the query has not been responded to properly.

The Executing Court in its order dated 21.05.2010 noted the

stand of the respondent-Corporation, at the inception of the

suit, that the suit land is in its possession but that in execution

proceedings, the respondent-Corporation has taken altogether

a different stand that the school is running on a different parcel

of land. The Executing Court further expressed doubt as to

how, at that stage, the respondent-Corporation could take

altogether a different stand and observed that it is liable to

disclose as to how the possession of the suit land passed from

it to a third party.

10. It is also important to notice that throughout the course of

the execution proceedings, no resistance was offered by any

purported stranger/encroacher to the decree. In the absence of

such resistance, the Executing Court had no occasion to invoke

Order XXI, Rules 97 to 101, at the instance of the decreeholder

or otherwise. Unless, this procedure is adopted, the

Executing Court could not have closed the execution

proceedings by observing that the decree is inexecutable.

11. In “Brahmdeo Chaudhary vs. Rishikesh Prasad

Jaiswal & Anr.” (1997) 3 SCC 694, this Court has observed

that Order XXI of the CPC lays down a complete code for

resolving all disputes pertaining to execution of the decree for

possession obtained by a decree-holder and whose attempts at

executing the said decree meet with rough weather. Referring

to its earlier judgment in the matter of “Bhanwar Lal vs.

Satyanarain” (1995) 1 SCC 6 this Court concluded thus:

‘11. In view of the aforesaid settled legal

position, therefore, and in the light of the

statutory scheme discussed by us earlier it

must be held that Respondent 1 decree-holder's

application dated 6-5-1991 praying for issuance

of warrant for delivery of possession with the

aid of armed force, was in substance for

removal of obstruction offered by the appellant

and others under Order 21, Rule 97 CPC and

had to be adjudicated upon as enjoined by

Order 21, Rule 97, sub-rule (2) read with Order

21, Rule 101 and Order 21, Rule 98. In this

connection the Court had also to follow the

procedure laid down by Order 21, Rule 105

which enjoins the executing court to which an

application is made under any of the foregoing

rules of the order to fix a date of hearing of the

application. As the executing court refused to

adjudicate upon the obstruction and the claim

of the appellant who obstructed to the

execution proceedings it had clearly failed to

exercise jurisdiction vested in it by law. The

High Court in revision also committed the same

error by taking the view that such an

application was not maintainable. It is of course

true as submitted by learned counsel for the

decree-holder that in para 4 of the judgment

under appeal the High Court has noted that

there was some discrepancy about the khasra

number. But these are passing observations. On

the contrary in the subsequent paragraphs of

the judgment the High Court has clearly held

that such an application by the objector was

not maintainable and his only remedy was to

move an application under Order 21, Rule 99

after handing over possession and

consideration of objection to delivery of

possession by a stranger to the decree at any

earlier stage was premature. It must, therefore,

be held that neither the executing court nor the

High Court in revision had considered the

objection of the appellant against execution on

merits. Consequently the impugned judgment

of the High Court as well as the order of the

executing court in Civil Execution Case No. 25

of 1990 dated 15-2-1996 are quashed and set

aside and proceedings are remanded to the

Court of Munsif II, Munger to re-decide the

application of Respondent 1 decree-holder

dated 6-5-1991 by treating it to be one under

Order 21, Rule 97 for removal of obstruction of

the appellant and after hearing the decreeholder

as well as the appellant to adjudicate the

claim of the appellant and to pass appropriate

orders under Order 21, Rule 97, sub-rule (2)

CPC read with Order 21, Rule 98 CPC as

indicated in the earlier part of this judgment.’

12. Similarly, in “Shreenath & Anr. Vs. Rajesh & Ors.”

(1998) 4 SCC 543 this Court observed 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 the

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 97 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 the judgment-debtor or claiming

independent right of his own including a tenant

not party to the suit or even a stranger. A

decree-holder, in such a 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 applicant's claim in accordance with the

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 obstruction by a

stranger is adjudicated and finally 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, including tenants or other

persons claiming right on their own, including a

stranger.’

13. In “Sameer Singh & Anr. Vs. Abdul Rab & Ors.”

(2015) 1 SCC 379, this Court again observed that the

Executing Court has the authority to adjudicate all the

questions pertaining to right, title or interest in the property

arising between the parties including the claim of a stranger

who apprehends dispossession from the immovable property.

This is provided to avoid multiplicity of proceedings and if a

court declines to adjudicate by stating that it lacks jurisdiction,

that by itself would occasion failure on part of the Executing

Court to exercise the jurisdiction vested in it.

14. In most recent judgment in “Jini Dhanrajgir & Anr. Vs.