Whether the objector in the execution proceeding can seek relief of Partition & Separate Possession even though he was not a party to suit?

 In the present case also the objections appear to have been filed merely as a formality and the same was never prosecuted. Two years after satisfaction of decree was recorded by the executing court, Petitioners seems to have smelled an opportunity of re-opening the execution proceedings citing the pretext of non-decision of their objection, which they did not bother to prosecute for 14 long years. The closed execution proceedings cannot be permitted to be reopened for such indolent Petitioners, that too for decision of their objections which can be decided only in a suit. {Para 11}

12. Perusal of prayers raised in the objection petitions would indicate that the same are in the nature of prayers which would be sought in a fresh suit. In execution proceedings such prayers for partition and separate possession could not otherwise have been granted. Such prayers can always be sought by the Petitioners by filing a separate suit. In this regard Mr. Kshirasagar has relied upon judgment of this Court in Lalitkumar Ramlal Sharma vs. Jadavbai Murlidhar Shama MANU/MH/0439/2002 : (2002) 4 Mh.L.J. 649. In which it is held that bar of filing separate suit is not attracted if objecting person is not party to a suit. In the present case, Petitioners were not parties to the suit and therefore a separate suit filed by them seeking partition and separate share may not be barred.

13. In the result, I do not find any error being committed by the executing court in passing the order dated 11 September 2019. The Petition is devoid of merits, it is dismissed without any order as to costs. Rule discharged.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4504 of 2022

Decided On: 24.01.2023

Hirabai Dattatray Mankar Vs.  Dodke Associates

Hon'ble Judges/Coram:

Sandeep V. Marne, J.

Citation: MANU/MH/0222/2023,2023 Lawweb (Bom HC ) 9.

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Whether objector can file same objection again if his first objection was rejected and said order has attained finality?

The respondent No. 1 had filed one such application (Exh. 58) way back on 3.3.2011, which stood rejected on merits on 4.8.2011. This order attained finality. Yet, after about five years of such rejection, the respondent No. 1 filed another application objecting to the execution of the decree, virtually on the same ground on which she had filed the earlier application that was rejected.

14. The Executing Court correctly rejected the subsequent application filed in the year 2016 (Exh. 185) and in the order rejecting the said application, the Executing Court recorded in paragraph Nos. 7 to 10, not only about the rejection of the earlier application of respondent No. 1 but also a series of such applications filed by other objectors, which were rejected. The relevant portion of the said order has been quoted above.

15. Despite such glaring facts, the District Court, by the impugned order has allowed the appeal of respondent No. 1 thereby setting aside the order of Executing Court and sending the matter back to the Court for another ground of litigation which the decree holder would be made to suffer. The court below has committed grave error in observing in its judgment and order that the earlier application filed by respondent No. 1 before the Executing Court at Exh. 58 was not decided on merits. This observation is wrong on the face of the record. Apart from this, the Court below has erred in observing that a fair opportunity was not granted to the respondent No. 1 for adjudicating her rights in the suit property. The said observation is clearly unsustainable because the respondent No. 1 exercised her rights by filing the application/objection at Exh. 58, which stood rejected on 4.8.2011 by the Executing Court and such order had attained finality. The Court below seems to have placed emphasis only on procedure, without appreciating the substance of the matter. In any case, even if procedural aspect was to be emphasized, the facts of the present case show that the subsequent application/objection filed on behalf of respondent No. 1 at Exh. 185 deserved to be rejected, because similar earlier application/objection at Exh. 58 stood rejected on 4.8.2011, which had attained finality.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 364 of 2017

Decided On: 26.02.2018

Nandkishor Hemraj Khandelwal Vs.  Chandrakalabai Kisanrao Marotkar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5)MHLJ 379

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Whether executing court can reject objection to execution of decree without regular enquiry as suit?

It is clear from the finding recorded by the courts below that the predecessor of the Respondents was party to the sale certificate which the Respondents never challenged. There is no evidence on record that they were in possession prior to the passing of the decree as they did not take in proceedings in spite of knowledge of the proceedings for a long period of time. The suit was duly contested by the original Defendants for a long period of 30 years. It could not, thus, be held that the original Defendants had colluded with the Appellants Plaintiffs. In this view of the matter, there was no justification for the High Court to have set aside the order of the courts below only by observing that the executing court had not recorded finding that regular enquiry, as suit was not required. This observation is also against the record as the executing court has, after finding that the objections were misconceived in substance, held that no regular enquiry as a suit was required. There was thus, no infirmity in the finding recorded by the courts below in rejecting the objections.

11. While a genuine petition to execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long drawn contested proceedings. Attempt to deprive the decree holder of benefit of such decree should be discouraged by the court where such objection is raised. The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach. Accordingly, this appeal is allowed, the order of the High Court is set aside and that of the courts below is restored.

IN THE SUPREME COURT OF INDIA

C.A. No. 6569 of 2016 (Arising out of SLP(C) No. 22375 of 2012)

Decided On: 19.07.2016

Bool Chand and Ors.Vs.Rabia and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and A.K. Goel, JJ.

Citation: (2016) 16 SCC 270

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When court should not frame issues in execution of decree?

 From the perusal of the above, it would be clear that all questions arising between the parties relating to execution, discharge or satisfaction of a decree are to be determined by the Executing Court and the Executing Court must decide the question of fact raised by way of objections relating to execution of the decree, by framing necessary issues and by allowing the parties to lead evidence. However, it all depends upon nature and tenor of the objections raised by the judgment-debtor. Furthermore, if the objections are prima facie frivolous, vexatious, intended to delay the execution, vague and would amount to abuse of process of the Court, the Executing Court may dismiss the objections even without holding any inquiry but if by way of objections prima facie it is shown that the decree is not executable for some legal and valid reasons, the Executing Court is required to frame issues and record evidence and thereafter decide the objections. In the present case as referred to above, the objections filed by the judgment-debtor are not even worth consideration and on the face of it these have been filed with an intention to delay the execution of the decree dated March 26, 2004 passed by this Court and in any case these objections amount to abuse of the process of the Court.

Himachal Pradesh High Court

Centre For Advance Studies And ... vs Hakam Chand on 25 May, 2005

Equivalent citations: AIR 2006 HP 21

Bench: V Jain

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Whether filing of objection to execution application will amount to refusal to pay decretal amount?

In this appeal against the order of the executing Court, Mr. R. Gopalaswami Aiyangar first contended that, as there has been no refusal by the appellant to pay the moneys due under the decree, the execution application was premature. We are, however, unable to agree with that contention. After the filing of the execution, the appellant filed a counter affidavit, objecting to his liability to pay the decree amount, as, according to aim, the execution petition was premature. If the execution application were held to be maintainable, that would certainly amount to a refusal to pay.

Madras High Court

K.P. Mohamed Ibrahim vs The State Bank Of Travancore on 12 August, 1963

Equivalent citations: AIR 1964 Mad 233

Bench: S R Iyer, Ramakrishnan

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Whether court can treat objection filed by third party as application given by decree holder under O 21 R 97 of CPC?

 In so far as the second submission of the learned counsel for the obstructionists that the application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 was mandatory and since there was no separate application made by the decree holders under Order XXI Rule 97 for complaining of such resistance or obstruction made by the obstructionists, the Executing Court could not have passed any decree for possession against the obstructionists is concerned, it is a common ground that the obstructionists had filed an application before the Executing Court asserting their alleged rights and applied for adjudication thereof. It is not in dispute that in the said application filed by the obstructionists, decree holders had filed a detailed reply pointing out the previous orders and rights accrued in their favour on the basis of the consent decree and applied for possession of the suit property. The Trial Court proceeded with the application made by the obstructionists and also the reply of the decree holders seeking possession of the property by trying the same as suit and also followed the entire procedure under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and rendered a finding of fact that the obstructionists had no right of whatsoever nature in the suit property and directed them to hand over the possession of the suit property to the decree holders.

22. A perusal of the orders passed by both the Courts below clearly indicates that both the Courts below, in my view, have rightly referred to the Civil Manual which prescribed the procedure to be adopted for entertaining the miscellaneous proceedings requiring judicial inquiry. It is held by the lower Appellate Court that the provisions laid down in paragraph 337 to 341 of the Civil Manual are permissive in nature which are the guidelines for the Court and therefore, it should be interpreted liberally. It is held that it is for the Executing Court to maintain the separate record in respect of the miscellaneous judicial proceeding like proceeding under Order XXI Rule 97 of the Code of Civil Procedure, 1908. The lower Appellate Court has held that the right of the decree holders cannot be defeated for this technical reason. In my view, the lower Appellate Court has rightly construed the provisions under Order XXI Rule 97 read with paragraph 339 of the Civil Manual and has rightly held that such procedure prescribed under the Code of Civil Procedure read with Civil Manual are the rules of procedure which are handmaid of justice and has to be interpreted liberally.

23. Be that as it may, In my view, since the Executing Court has followed the entire procedure prescribed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and has decided the objection of the obstructionists and the reply of the decree holders by trying the same as suit, I do not find any infirmity with the order passed by the Executing Court in rejecting the application made by the obstructionists and decided the prayer made by the decree holders in the detailed reply filed before the Executing Court.

IN THE HIGH COURT OF BOMBAY

Second Appeal (ST.) No. 30922 of 2015, Civil Application No. 1789 of 2015 in Second Appeal (ST.) No. 30922 of 2015, 

Decided On: 09.12.2015

 Avinash Uttam Kadam and Ors.
Vs.
 Hajira Begum Nisar Ahmad and Ors.

Coram:R.D. Dhanuka, J.

Citation:2016(3) ALLMR156

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Whether person in whose favour agreement of sale is executed can file objection to attachment of property?

 Though an agreement to sell does not create any title in an immovable
property as understood by Section 54 of the Transfer of Property Act, 1882, 
but it is settled law that objections to attachment of immovable property can
be preferred under Order 21 Rule 58 of the Code of Civil Procedure by a
person in whose favour there is a contract of sale of immovable property
because the word ‘interest’ contemplated by said Rule is not in the sense in
which the expression ‘interest’ has been used under Section 54 of the
Transfer of Property Act, 1882. As held by a Division Bench of this Court
in the decision reported as 94 (2001) DLT 841 (DB) Asha M.Jain Vs.
Canara Bank & Ors., the attached immovable property can be sold subject
to the interest that has been created in the property with possession handed
over under an agreement to sell, and we may highlight that an interest is
recognized in a property, where under an agreement to sell the entire sale
consideration is paid and possession taken over by the purchaser from the
seller with an irrevocable power of attorney executed by the seller in favour
of the buyer, and falling within the interest irrevocably protected by Section
202 of the Indian Contract Act, 1872.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: May 13, 2016
 W.P.(C) 4505/2015
SWARAJ KISHORE ARORA 
versus
INDIAN BANK AND ORS. 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

Read full judgment here; click here

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When objection in execution of decree can be decided without framing issues?

Mr. Neeraj Garg, learned counsel appearing for the objector/petitioner, herein, has vehemently argued that objection filed under Order 21 Rule 97 CPC should be decided as a suit after framing the issues as mandated by Order 21 Rule 101 and Rule 103 of CPC; since, no issue was ever framed, therefore, order passed by the learned Executing Court dismissing the objection under Order 21 Rule 97 CPC stands vitiated.
Objector/petitioner, herein, is claiming himself to be a tenant of the plaintiff/decree holder, while decree holder is seriously refuting the claim raised by the objector/petitioner, herein. Therefore, the only question which arose before the Executing Court was – As to whether objector/petitioner, herein, was in possession of the part of the suit property as a tenant of the plaintiff/decree holder in his independent rights? This
question was decided by the Executing Court against the objector/petitioner, herein.
Hon’ble Apex Court in the case of Nedunuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 held as under:
“Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.”
As per the dictum of Hon’ble Apex Court in the case of Nedunuri Kameswaramma (supra), if parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, then, non-framing of issue is not fatal.
As discussed hereinbefore, the only question for determination posed before the Executing Court was as to whether objector/petitioner, herein, is in possession of the part of the suit property as a tenant of the
plaintiff/decree holder in his own independent right, and this issue has been decided against the objector/petitioner, herein, although without framing the issue. Therefore, judgment passed by the Executing Court rejecting the objection of the objector cannot be said to have been vitiated by non-framing of the issues.
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2688 of 2014 (M/S)
Sabir Khan @ Billu V Naushad Ahmad

Hon’ble Alok Singh, J 
Citation;AIR2015(NOC)233 UTR

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How to decide objection raised by objector claiming himself to be tenant in execution of eviction decree?

 During the execution, present petitioner preferred objection under Order 21 Rule 97 of CPC saying that objector/petitioner, herein, is in actual physical possession of the part of the suit property as shown in the map annexed with the objection under Order 21 Rule 97 shown as quarter in possession of the objector, therefore, since the objector/petitioner/herein, was not a party in suit, he cannot be dispossessed/ evicted in the garb of decree passed in OS No. 414 of 1994. Decree holder/respondent, herein, contested the objections so filed. Objections were dismissed by the learned Executing Court, vide judgment and order dated 3.4.2014. Feeling aggrieved, objector/petitioner, herein, preferred Civil Revision 33 of 2014, which too came to be dismissed vide impugned judgment and order dated 26.11.2014. Feeling aggrieved, objector/petitioner, herein, has approached this Court by way of present petition filed under Article 226/227 of the Constitution of India.
I have heard Mr. Neeraj Garg, learned counsel for the objector/petitioner and Mr. Piyush Garg, learned counsel for the plaintiff/decree holder/respondent, herein, and have carefully perused the record.
Objector/petitioner, herein, is claiming himself to be a tenant of the plaintiff/decree holder/respondent, herein, over the part of the suit property of OS No. 414 of 1994 as shown in the map annexed with the objection under Order 21 Rule 97 of CPC. It is very strange to note that objector/petitioner, herein, has not produced on record either any rent deed or any rent receipt or any document to show that he was inducted as tenant by the plaintiff/decree holder in part of the suit property. Perusal of the objection under Order 21 Rule 97 of CPC would reveal that it is not stated anywhere as to when objector/petitioner, herein, was inducted as tenant in the part of suit property of OS No. 414 of 1994. Not only this, description of property given at the foot of the plaint of OS No. 414 of 1994 reveals that to the North of the suit property, property under the occupation of Jubeda, to the South of the suit property, property in occupation of Parvej, to the East of the suit property, Gandhi road and to the West of the suit property, property of others situate. If details and boundaries of the properties, as given in the plaint of OS No. 414 of 1994, are compared with the map annexed with the objection under Order 21 Rule 97 of CPC, it would reveal that entire property shown in the map annexed with the objection under Order 21 Rule 97 is the same as described and given in the plaint of OS No. 414 of 1994. In the civil suit defendants/third party admitted their possession on the
entire suit property as tenants of the plaintiff/ decree holder. They have hotly contested the suit till second appeal. Had objector been in possession over the part of the suit property, defendants/third party could have easily stated that description of suit property was incorrect. No collusion between the plaintiff and defendant is suggested by the objector nor could be inferred in view of the fact that suit was hotly contested. Therefore, in view of the discussion made hereinbefore, it can very well be said that objector / petitioner herein has failed to prove his independent possession over any part of the suit property as tenant of the plaintiff / decree holder.

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2688 of 2014 (M/S)
Sabir Khan @ Billu V Naushad Ahmad
Citation; AIR 2015(NOC)233 UTR
Hon’ble Alok Singh, J

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When court can decide objection under O 21 R 97 of CPC without framing issue?

Now coming to the argument with regard to framing of

the issues and to decide the objection petition after following the

procedure as that of trial, it may be observed that the appellant

being the decree holder, obviously on the strength of decree, was

enforcing the execution of the decree, whereupon the objection

petition was filed by respondent No.1. It was only respondent

No.1, who could raise objection with regard to framing of the

issues or for leading evidence, however he did not claim any such

issue and remained satisfied after tendering some documents on

the file. The parties were very clear in their claims and stands, set

up by them. In the instant case, when the appellant had

undergone long process and consumed much time in reaching the

culmination of the trial should not again be put to trial by framing

the issues when the parties were clear in the objections and the

Court, on the objections and the documents placed on record by

the parties, could decide the case without framing of the issues.

Punjab-Haryana High Court

State Bank Of Patiala vs Shri Jagdish Singh Khehar And ... on 6 March, 2013

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