Execution of decree and obstruction to its execution

 Execution is the process by which a decree-holder enforces a decree through the civil court. The law on execution is contained mainly in Sections 36 to 74 of the Code of Civil Procedure, 1908, and the detailed procedure is laid down in Order 21of  CPC.

A decree may be executed by the court which passed it, or by the court to which it is transferred for execution under Section 38 CPC. The decree-holder initiates the process by filing an execution application under Order 21 Rules 10 and 11 CPC, after which the court adopts the mode of execution permitted by law.

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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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Can the executing court decide questions of title raised by third parties who assert independent ownership under Order XXI, Rules 97-101 of the Civil Procedure Code (CPC)?

Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, we would only say and hold on question Nos. (i) and (iv) 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 and the Government who have set up independent claims. We also hold 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, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC.

{Para 126}

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 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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Important Notes on Civil procedure Code

1) Execution of decree -Important provisions of CPC

https://www.lawweb.in/2019/09/execution-of-decree-important.html

2) Notes on Representative suit under O 1 R 8 of CPC

https://www.lawweb.in/2019/04/notes-on-representative-suit-under-o-1.html

3) Good article on Res Judicata, stay of suit and estoppelhttps://www.lawweb.in/2018/05/good-article-on-res-judicata-stay-of.html

4) Basic concepts of CPC 4 -definitions

https://www.lawweb.in/2018/05/basic-concepts-of-cpc-part-4.html

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