Allahabad HC: Revisional Court Can't Assume Jurisdiction To Reject O.21 R.97 Application When It Is Pending Before Executing Court

In the instant case the revisional court had assumed the jurisdiction of executing court and dismissed the application filed under Order XXI Rule 97, though observing that the issue of res judicata should have been decided first. The revisional court at the most could have remanded the matter with certain directions, it cannot assume the role of a executing court while exercising revisional jurisdiction, as the order dated 16.05.2024 does not fall in the category of case decided. {Para 33}

34. After giving thoughtful consideration, I find that the revisional court had exceeded its jurisdiction by dismissing the application filed under Order XXI Rule 97 by the petitioner before the executing court while exercising revisional jurisdiction under Section 115 CPC. However, the executing court has also failed in its endeavour to decide the execution case pending before it since the year 2014, and after framing the issue of res judicata had postponed the matter to be decided at the final stage.

35. In such a case where it is an admitted fact that the property was transferred during pendency of the suit and petitioner is a transferee pendente lite and hit by provisions of Section 52 of the Transfer of Property Act, the executing court should have, at the very outset, proceeded to pass the order in pursuance of Rule 102 CPC.

 IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 11807 of 2024

Decided On: 11.03.2025

Santosh Awasthi Vs. Urmila Jain

Hon'ble Judges/Coram:

Rohit Ranjan Agarwal, J.

Citation:  MANU/UP/0397/2025,- 2025:AHC:35146.

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Whether a person can resist execution of decree saying that he is subsequent transferee if he is in possession of immovable property but sale deed is not executed in his favour?

The learned Counsel for the respondent No. 2 sought to urge that the respondent No. 2 has been put in possession of the flat pursuant to the contract for sale deed 16-10-1990 by the respondent No. 1 and by virtue of Section 53-A of the Transfer of Property Act, he is entitled to the protection of his possession. The contention is only noted to be rejected. The appellant is a decree-holder in whose favour the decree for specific performance of the contract in respect of the said flat has been passed against respondent No. 1. He has levied execution of the said decree. Respondent No. 2 can successfully resist the execution of the decree only if he is able to establish his independent title over the property. Respondent No. 2 has not acquired any title nor is he a transferee within the meaning of Clause (b) of Section 19. He cannot resist the decree passed In favour of the appellant on the ground that he was put In possession by respondent No. 1 under the Agreement for Sale dated 16-10-1990. As a matter of fact, the agreement dated 16-10-1990 in favour of the respondent no, 2 Is of no legal value as It is subsequent to the contract that respondent No. 1 had entered Into with the appellant and in respect of which a decree for specific performance has been passed In favour of the appellant.

{Para 17}

18. One more aspect needs to be noticed before I conclude. The purchase contemplated under Clause (b) of Section 19 must satisfy four conditions : (1) that the transfer is for value; (2) that the payment of full value has been made: (3) that the purchase was done in good faith: and (4) that the purchase including payment of money was without the notice of the original contract. The agreement dated 16-10-1990 under which the respondent No. 2 claims to have purchased the said property shows that the respondent No. 1 agreed to sell the said property to the respondent No. 2 for a consideration of Rs. 2,80,000/-. 

19. The respondent No. 2 cannot be held that to be 'transferee'. He is only subsequent contractee. He has also not paid full value, lie is not covered by the exception carved out in Section 19(b).

 IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal No. 5/1998

Decided On: 18.08.2005

Sujata Sanzgiry Vs. Ankush R. Naik and Ors.

Hon'ble Judges/Coram:

R.M. Lodha, J.

Citation: 2005 AIR (Bombay) 404,2006(1) MHLJ 639, MANU/MH/0901/2005.

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What is the scope of the enquiry under Order XXI, Rules 97-101, CPC ?

  In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un-Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.{Para 113}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

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Whether the court must decide all questions raised by obstructionist during the execution of the decree?

When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.

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 of the resister raised it. The questions which the executing court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente 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 a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.

Supreme Court of India

N.S.S.Narayana Sarma & Ors vs M/S.Goldstone Exports P. Ltd. & ... on 23 November, 2001

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Whether the court should direct obstructionist to pay compensation or rent to the landlord during pendency of obstructionist proceeding?

Usually, the appellate court, or sometimes the executing court, requires the tenant to pay compensation pending the appeal on the execution so that the appealed decree could be stayed. Lest the tenant should face a summary eviction. Here, the obstruction proceedings are deemed original proceedings. Had the Obstructor failed in those proceedings, in the appeal he would have been compelled to pay the compensation. True, here, he did fail. But now that judgment stands set aside, and the matter remanded. So, the parties have been relegated to their original position. Therefore, we cannot compel the Objector to pay compensation.{Para 66 }

Pending the original proceedings, which the obstruction proceedings are, the tenant or the occupier should pay only the admitted rent or license fee. Here, the Owner maintains that he has no privity of contract with the Obstructor. On the contrary, the Obstructor asserts that the consent terms, which had the judicial imprimatur, recognised him as an occupant.

69. The Obstructor has pleaded that he had been paying the rent to the tenant. But the fact remains that the tenant has defaulted in paying rent to the Owner. At least, until the High Court decides the eviction proceedings that is the judicial finding. When this Court wanted the tenant to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive. That has paved the way for eviction proceedings. In this situation, the Obstructor cannot be heard saying that he has no obligation to pay rent to the Owner, for he cannot have the cake and eat it, too.

70. Therefore, it serves the interest of justice if the Obstructor pays to the Owner the admitted rent, regularly. As to the arrears if any, the Obstructor should pay the accumulated arrears from the date of obstruction proceedings. The arrears must be paid in three months from the date of first hearing before the Executing Court after the remand. If the Obstructor fails to pay the arrears or defaults on paying the regular rent, the owner may apply to the Executing Court to strike off the Obstructor's plea or defence. I also clarify that the Obstructor's paying the rent and the Owner's receiving that is without prejudice to their rival contentions in the proceedings. Otherwise, the impugned Order, dt. 28.02.2018 remains unaffected.

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5341 and 5342 of 2018

Decided On: 27.04.2020

 Udyavara R. Acharya and Ors.Vs. Jugal Kishor Jagannath Sharda Zenith Co-operative Housing Society Ltd.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/0539/2020

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Whether the appeal is maintainable against an order passed in application U/S 47 of CPC?

In view of above. It can be said that the objections were treated u/sec. 47 CPC by the ld. Executing Court which deals with questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It is well settled that it is the substance and not the nomenclature which is material. So, far as an order passed u/sec. 47 CPC is concerned, the same is not an appealable order as it does, not find mention either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable orders.' There is also no special provision which makes the order u/sec. 47 CPC an appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of term decree u/sec. 2(2) of CPC.

19. Considering the above facts and circumstances, I am of the considered view that present appeal is not maintainable in this court and same is accordingly dismissed."

21. It is the settled position in law that the nomenclature of an application does not govern the nature of the application, or the order passed in the same. Clearly the order passed by the Executing Court in this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to whether the Judgment Debtor is covered under the term "any person" in Rule 97 does not even arise in the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the application. The order passed is one for implementing the mandatory injunction as granted by the original decree dated 24th December, 1999 along with restitution in the form of damages. Such an order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section 47 CPC.

When an order is passed by an executing court directing recovery of possession from the judgment debtors who had failed to comply with the requisite clear direction in this regard under the decree in question, the said order would not relate to obstruction or resistance by the judgment debtors, and would therefore be an order within the meaning of Section 47 of the CPC and not one under Order XXI Rule 97 of the CPC.

IN THE HIGH COURT OF DELHI

CM(M) 1448/2019, CM Appls. 43987/2019 and 43988/2019

Decided On: 19.03.2020

Dev Raj  Vs.  Satpal Gulia

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether eviction order secured by original tenant against landlord is binding against subsequent tenant?

 On 16.03.2012 Fehmida secured an order for repossession. But by then, Gagan was put in possession of the property. In other words, Fehmida's order for restoration of possession was against the landlord. And the landlord, before he suffered the order, put Gangan in possession of the property. Can we say Gangan's possession is independent of the eviction proceedings the landlord had initiated? 

26. True, as Gangan contends, a judgment debtor can be, as Section 2(10) defines, any person against whom a decree or an order capable of execution is passed. According to him, in Fehmida's Misc. Application, the Small Cause Court passed an order capable of execution against the landlord. And Gangan claims his right through the landlord, so he must be treated as a judgment debtor under Order XXI, Rule 97 of CPC. But that must be only from the date Fehmida filed the application. In other words, from that date onwards, the lis pendens principle can be imported. 

35. First, registration of a plaint is not a sine qua non for the institution of a suit, but the presentation is. Second, presentation connotes proper presentation. Third, improper presentation is curable, and once the defect is cured, the representation relates back, as Vidyawati Gupta has held, to the date of the original presentation. Pithily put, even before Gangan could enter into a lease agreement, the landlord had a deemed service of notice because on 18.01.2010 he refused to take notice from the Court's Bailiff.

So it is time I answered the questions I set out above.

The Answers:

(a) Does the order the original tenant has secured against the landlord bind the subsequent tenant who is entirely unaware of the previous court proceedings?

A: Yes, it does. The subsequent tenant, a victim he may have been, must yield to the previous tenant, whose rights remain unaffected by the landlord's sharp tactics.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11022 of 2012

Decided On: 28.06.2019

 Fehmida Usman Gani Shaikh  Vs.  Maqbool Munaf Gagan

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(1) MHLJ 733

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Whether obstructionist notice is to be dismissed if obstructionist is not claiming under judgment debtor?

 In order to appreciate the contention of Mr. Kotwal, it is necessary to refer to the provisions of Order 21, Rule 97, 99 and 103 of the Civil P.C. Rule 97 provides that where the holder of a decree for 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 and the Court shall investigate into the matter. This right is conferred, either on the decree-holder himself or on an auction purchaser. It is not conferred on a purchaser by a private treaty. We merely wish to point out that the present plaintiff could not have maintained the application under the provisions of Order 21, Rule 97. It may none-the-less be that to the extent to which Watave was bound by such an order, private purchaser may also be bound by it, but for that purpose we shall consider the scope of the Order, Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 97, the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not?) claiming under the judgment-debtor he may be claiming, either on his own account or on account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. 

IN THE HIGH COURT OF BOMBAY

A.F.A.D. No. 1197 of 1962

Decided On: 03.04.1970

Ganesh Narayan Kulkarni Vs.  Ganesh Ramchandra Joshi and Ors.

Hon'ble Judges/Coram:

J.L. Nain and D.G. Gatne, JJ.

Citation : AIR 1971 Bom 16

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When court should not permit obstructionist to lead evidence in execution of decree proceeding?

1)The petitioners (decree holders) have filed these two writ petitions challenging two identical orders passed by the Court of Joint Civil Judge, Senior Division, Nagpur, (Executing Court) in Special Darkhast Nos. 94 of 2016 and 100 of 2016, whereby respondent no. 2 in both the writ petitions has been permitted to lead evidence in support of objection to execution of the decree raised by the said objector. 

2)At this stage, on 03.09.2018, the respondent no. 2 filed objections before the Executing Court under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (CPC) claiming that the decrees passed in favour of the petitioners were inexecutable. The claim made by the respondent no. 2 was that the property wherein the suit shop blocks were located, was ancestral property in the hand of Jageshwar Sadashio Banwari.

3) The clauses in the said agreements of the year 1999 show that the respondent no. 1 had stated that the subject matter of the said agreements was his absolute property and in the year 2018, the respondent no. 1 has supported the case of the respondent no. 2 to the effect that the property was ancestral property. This indicates that the respondent no. 1 is making all attempts possible to frustrate the decree and that he has been instrumental in the respondent no. 2 fling the objections in the year 2018 in respect of the said decrees. The objections raised by respondent no. 2 do not appear to be bonafide at all. Even otherwise, as noted above, if the entire theory put up by the respondent no. 2 is to be accepted, there can be no difficulty in execution of the decrees in favour of the petitioners, as the suit shop blocks cover only an area of 600 sq.ft. from the total area of 2808 sq.ft. of the entire property.

21. The respondent nos. 1 and 2 cannot be permitted to frustrate the decree and to delay its execution by claiming that the respondent no. 2 is entitled to lead evidence in support of his claim and, therefore, it becomes clear that the Executing Court has committed an error in passing the impugned orders. The respondent no. 2 can very well satisfy his claim in the entire property without disturbing the decrees that have been passed in favour of the petitioners and confirmed upto the Hon'ble Supreme Court. In any case, the respondent no. 2 has only a minuscule share in the entire property, as his own claim shows that he along with eight other siblings would be entitled to 50% of the entire property.

22. In view of the above, this Court finds that the impugned orders passed by the Executing Court are unsustainable. Accordingly, the writ petitions are allowed and the impugned orders passed by the Executing Court are quashed and set aside. Consequently, the objections raised by the respondent no. 2 stand dismissed and there is no question of permitting the respondent no. 2 to lead evidence in support thereof. The Executing Court is directed to dispose of the execution proceedings initiated by the petitioners expeditiously.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 6967 and 6979 of 2018

Decided On: 10.04.2019

 Vishambari  Vs. Ram and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(5) MHLJ 854

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Whether it is mandatory for court to frame issues in obstructionist proceeding?

To substantiate his submissions, learned counsel for the respondents has placed reliance on the precedent law laid down by this Hon'ble Court in Smt. Shanti Devi & Ors. Vs. Chimanaram Mantri Trust & Ors., reported in MANU/RH/1173/2017 : 2017 3 DNJ 1384, particularly para 23, 24, 25, 30, 32 and 37, which read as under:-

"23. On careful analysis of the case laws referred above, this Court finds that none of the authorities cited by counsel for the petitioners enunciates that the recording of evidence and framing of issues is prerequisite for deciding an objection petition under Order 21, Rule 97 of the Civil Procedure Code or the same can be claimed as a matter of right.

24. Adverting to the judgments cited by Mr. Manish Shishodia, this Court has gone through the judgment of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., reported in MANU/SC/0252/1998 : (1998) 3 SCC p. 723, the Hon'ble Supreme Court in para No. 14 of the report has held that the adjudication under Order 21, Rule 97 of Civil Procedure Code does not contemplate detailed enquiry or collection of evidence. The Court can make adjudication on admitted facts or even on the basis of averments made by the resister; of course, the Court can direct the parties to adduce evidence for such determination, if the Court deems necessary. For the sake of ready reference, para 14 of the said judgment is reproduced hereunder:-

"14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses 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. The court can make adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."

25. A careful reading of the aforesaid judgment reveals that the Hon'ble Supreme Court has clearly held that recording of evidence is not necessary in each case. The Court in a given case, if deemed necessary, can direct the parties to adduce evidence.

30. On a careful and comprehensive reading of the judgment cited by rival counsels, this Court has discerned that framing of issues and recording of evidence in execution proceedings is not essential in each case. As far as framing of issues is concerned, the Courts can frame point of determination but such determination may or may not require recording of the evidence. If the executing Court, on the basis of material available on record, coupled with the pleadings of the parties, feels that recording of evidence or summoning of witness is needed, the same can be recorded. But, for that purpose, the applicant has to clearly indicate in his application, the reasons necessitating such order and relevance of the evidence to be recorded. Recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course. The applicant has to assert and give cogent reasons indicating therein the nature of dispute, the assertion of the parties and the facts which are required to be proved by oral evidence.

32. In view of the factual backdrop of the case, particularly when on the basis of the documentary evidence as placed by the petitioners, if the trial court has come to a conclusion that recording of evidence and framing of issues is not necessary, no fault can be found in the order impugned.

37. The Executing Court after considering the factual matrix obtaining in the execution proceedings, has reached to a conclusion that neither framing of the issues nor recording of the evidence is required, this Court does not feel inclined to interfere in such discretionary order, in exercise of its otherwise discretionary - supervisory jurisdiction, being guided by the principles enunciated by the Supreme Court and this Court."

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 4538/2019

Decided On: 23.04.2019

 Prem Singh  Vs.  Amari Devi

Hon'ble Judges/Coram:

Dr. Pushpendra Singh Bhati, J.

Citation: AIR 2019 Raj 114

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Whether mesne profits can be awarded in obstructionist notice?

The Trial Court has also placed reliance on the
judgment of the Apex Court reported in 1999 Bom. R. C. 357 in the
matter of Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd.,
wherein the Apex Court has held that if the execution of a decree is
resisted by the obstructionist, then obstructionist is liable to pay mesne
profits equivalent to the market rate.

 It is an undisputed position that the Petitioner is in
occupation of the tenanted premises and in terms of the judgment of the
Apex Court in Marshall (supra), the obstructionist is liable to pay for such
occupation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10003 OF 2015

Shri. Dnyandev Tukaram Kshirsagar Vs M/s. Pyramid Corporation 

CORAM : R.M. SAVANT, J.
DATE : 16th NOVEMBER, 2015

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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Whether executing court can decide the issue that decree was obtained by fraud in obstructionist notice at the instance of third party?

 On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend, that the question relating to decree obtained by fraud cannot be gone Into by the Executing Court at the instance of the third party who is neither a judgment debtor nor claiming through the judgment debtor. Rule 101, as it presently stands, clearly bars a separate suit; and. Instead, postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the Executing Court at the instance of a stranger to the decree.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 1989

Decided On: 05.03.2001

 Ahmed Abdul Aziz Bengali  Vs.  Mohammed Hanif M. Mulla and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 ( 3 ) ALLMR 720

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How to appreciate evidence in obstructionist proceeding?

PW1, in his examination-in-chief deposed that the three obstructionists were set up by the said Chelladurai and Bhagyalakshmi. It was the case of the obstructionists that they were in possession of the suit property since 1965. However, no evidence was produced. On the contrary, RW1 stated in his evidence that he started paying property tax from 1989 and that prior thereto he had not paid the property tax. As stated above, PW1 instituted the ejectment suit in the Small Causes Court in 1989. Therefore, the evidence has been created by the obstructionists only from 1989. No electricity bills from 1965 onwards have been produced. No ration card has been produced. No proof of residence from 1965 has been produced. The High Court has relied upon the statement of PW1 stating that he knew three obstructionists since 1980 and that three houses existed in the suit property from 1980. In our view, the trial Court was right in examining the entire evidence on record and coming to the conclusion that there was no evidence from the side of the obstructionists to show that they were in possession of the suit premises prior to the filing of ejectment suit No. 44 of 1989. As stated above, on the contrary, the property tax receipts show that the obstructionists have entered into occupation from 1989. The High Court has failed to appreciate the entire evidence on record. Merely because PW1 knew the three obstructionists from 1980 would not be sufficient to conclude that three obstructionists came to reside in the suit property from 1965, as alleged. There is no evidence of residence from the side of the obstructionist between 1965 and 1989. In the circumstances, the High Court erred in dismissing the decree holder's application under Order 21 Rule 97 CPC.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1664 of 1998

Decided On: 12.10.2004

P. Janardhana Rao  Vs. Kannan 

Hon'ble Judges/Coram:

Ashok Bhan and S.H. Kapadia, JJ.

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Whether obstructionist notice is maintainable if obstructionist is not in possession of suit property?

The Lower Court proceeded to hold that only a person in physical possession of the suit property can cause obstruction during the execution of the decree. For that reason, the application preferred by the petitioners came to be rejected. This view taken by the lower Court is the subject-matter of challenge in the present petition.

6. Having considered the rival submissions, I have no hesitation in taking the view that the opinion recorded by the lower Court is manifestly wrong. In fact the same is contrary to the spirit of the scope of issues to be answered in the obstructionist proceedings by the Executing Court. However, if any guidance is required in support of this, we may usefully refer to Rules 97 and 101 of Order XXI of Civil Procedure Code.

7. Indeed, Rule 97 may not throw direct light on the point in issue, but the controversy stands squarely answered by the opening part of Rule 101 which mandates that all questions including question 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 adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit.

8. A priori, the purport of Rule 101 is wide enough to encompass the claim of the petitioners that they have acquired right, title and interest in the suit property on account of certain transaction with their predecessors who claim through the Judgment debtor.

9. For the time being it is unnecessary to dilate the controversy as to whether the petitioners have acquired such right after the institution of the, suit for eviction; so as to disentitle them to independently contest the obstructionist proceedings-keeping in mind the tenor of Rule 102 of Order XXI of Civil Procedure Code. That is a matter which will have to be addressed before the Lower Court in the first instance. For the time being I would only observe that the opinion recorded by the Lower Court that only a person who is in physical possession is entitled to cause obstruction and for which reason eligible to be impleaded as party to the obstruction proceeding is untenable in law. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 699 of 2005

Decided On: 11.09.2008

Arihant Builders Pvt. Ltd. Vs. Manjula Vithaldas Kapadia and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

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Whether executing court can put obstructionist in possession of property even if he has not proved his title to said property?

When the respondent No.1
filed his application claiming to be put back into
possession, it was obliged to establish its right,
title or interest in the property without which his
application could not have been allowed. The
Executing Court has considered the application of
respondent No.1 in right perspective and has clearly
held that respondent No.1 failed to prove his title
by adverse possession, hence application deserves to
be rejected.
28. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100
and 101, the Court is not to decide such question.
Without determination of right, title or interest,
the application could not have been allowed. We
having already extracted the observations of the High
Court, where it clearly held that the title in

respect of the property by way of adverse possession
need not be gone into in the appeal before it. The
above observation of the High Court was erroneous. In
the proceeding under Order XXI Rules 99, 100 and 101,
right, title or interest has to be determined and
without establishing right, title or interest, the
respondent No.1 cannot claim that he should be put
back into possession. We do not accept the
submission of the learned counsel for the respondent
that on mere fact that respondent No.1 was in
possession of the premises prior to being
dispossessed, they should be put back into
possession. For putting back into possession, the
respondent No.1 was obliged to establish his title to
the property by adverse possession, without which, he
could not have asked the Court to put him back into
possession. The High Court clearly erred in allowing
the appeal and the Executing Court has rightly
rejected the application filed by respondent No.1.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5632 OF 2019

SHAMSHER SINGH Vs  LT. COL. NAHAR SINGH 

ASHOK BHUSHAN, J.
Dated:July 29, 2019.

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When court should reject application for framing of issues in execution of decree?

Respondent No. 2 then filed one more application, Exh.-65, praying for, inter alia, framing of appropriate issue so that proper adjudication could be made in terms of the provisions of Order 21 Rules 97 and 101 of the Code of Civil Procedure. This application was also resisted by the petitioner. However, the application was allowed by the executing Court by its order passed on 20th February, 2018. It is this order which is now under challenge in the present writ petition.

I have already discussed as to how the decree passed for eviction against the respondent No. 1 came to be confirmed by the Hon'ble Supreme Court. This decree was passed in Special Civil Suit No. 517/1995. In the written statement filed by the respondent No. 1 in this suit, the respondent No. 1 asserted that the possession of the suit property was handed over to him by the petitioner himself. He did not refer to his joint possession of the suit property along with his brother. The High Court found that the plea that the possession of the suit property was handed over by the petitioner to the respondent No. 1 as groundless and further found that the respondent No. 1 had obtained possession of the suit property forcibly and, therefore, allowing the revision application, decreed the suit that was filed under Section 6 of the Specific Relief Act. This decree as stated earlier, was confirmed by the Hon'ble Apex Court.

16. So, the rights and obligations of the parties in the present case have been crystallized by a decree which has attained its finality. The right to seek possession of the suit property from the respondent No. 1 has now stood vested in the petitioner, the decree holder and this right now cannot be scuttled or obstructed by anybody who is stranger to the decree. Of course, a limited right to protect possession of the suit property has also been given under Order 21 Rule 97 CPC to any person who claims to be in possession and till such right is decided, the protection is required to be extended to such an obstructer. But, in order to assert such a right, such other person, in the present case respondent No. 2, would be required to demonstrate his prima facie case in the matter. He is required to place before the executing Court some material on the basis of which, the executing Court could record its satisfaction that a dispute as contemplated under Order 21 Rule 97 CPC has been raised and such dispute would require an adjudication as mandated by Rule 101, Order 21 read with paragraph 345 Chapter 21 of the Civil Manual.

17. In the present case, although the respondent No. 2 submits that he was put into possession of the suit property by the petitioner himself and he also averred that he carried on his business under the name and style as 'Airtech Marketing' from the suit property with the consent of his brother i.e. respondent No. 1. But, the discussion made earlier would show that this was never the case of the respondent No. 1. His case was that he was put into possession of the suit property by the petitioner himself and that he does not refer to his brother also being in possession along with him of the suit property. It was, therefore, required of the respondent No. 2 to place on record some material from which it could be said that there is prima facie substance in the contention of the respondent No. 2 about his being placed into possession by the petitioner. No such material has been placed on record, however, by the respondent No. 2. In the absence of any such material, the contention that the respondent No. 2 is entitled to secure protection of his possession till his right to remain in the property is decided cannot be said to be giving rise to any dispute as contemplated under Order 21 Rule 97 CPC. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2027 of 2018

Decided On: 31.08.2018

Kailashchandra Kedarmalji Vs. Kochaveedu Varghese Joseph and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2019(1) MHLJ 662

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Whether second appeal is maintainable against order passed in application under O 21 R 97 of CPC?

When the application of Order 21 Rule 97 CPC is adjudicated, it is enveloped within the definition of decree and first appeal having been preferred, the provisions of CPC will come into play. When the proceeding of this character reach the District Court in a state of appeal, the procedure which is prevailing in ordinary Court of the country with regard to the proceeding, the ordinary Rule of CPC will apply.

7. In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

8. In this case against the adjudication of decree first appeal was preferred by ordinary application of civil procedure code, therefore, if the first appeal is adjudicated by ordinary application of procedure of CPC, second appeal would lie.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

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Whether right to appeal is available if special statute under which right is claimed which does not confer right to appeal?

In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

Hon'ble Judges/Coram:

Goutam Bhaduri, J.

Citation: AIR 2018(NOC) 927 Chh

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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. 

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