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 obstructionist can resist execution of decree on the ground that decree under execution is a nullity?

 In my view, the phrase "holder of a decree for possession" which is contemplated under the above Rule postulates that he has to be a holder of valid decree for possession. The said phrase cannot include a person who is a holder of a decree which is a nullity. Nullity is not a decree at all. Hence, before a decree holder can call upon a Court to hear his complaint in regard to the obstruction to the execution of his decree by a person who has no independent right to possession, he has first to qualify having the status of being the holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a valid decree for possession. If he holds a decree which is a nullity in law, he cannot be termed as a holder of a decree which is capable of being put in execution. It follows that an obstructionist can always contend that the decree under execution is a nullity and, therefore, the Courts are refrained from entertaining an application for removal of the obstruction. Once such a contention is raised, it will be for the decree holder to establish that the decree which he has put in execution is a valid decree and the same is capable of being executed. In my view, such above contention can be raised by an obstructionist even if he fails to establish that he has an independent right to possession. The holding of a valid decree is a sine qua non for initiation of proceedings under Rules 97 to 101 of Order XXI of the Code of Civil Procedure. If the decree under execution is a nullity, the decree holder will not be heard to say that the obstructionist is illegally resisting its execution. {Para 12}

Bombay High Court

A. C. AGARWAL, J.

Mani Nariman Daruwala and others vs. Phiroz M. Bhatena and others

Writ Petition No. 1491 of 1984

5th October, 1990.

Citation: 1990 ALLMR ONLINE 1089

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Supreme Court: Court should record evidence in execution of decree proceeding in exceptional circumstances

  The Court should allow taking of evidence during the

execution proceedings only in exceptional and rare cases

where the question of fact could not be decided by resorting

to any other expeditious method like appointment of

Commissioner or calling for electronic materials including

photographs or video with affidavits. {Para 11}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1659-1660 of 2021

RAHUL S SHAH  Vs  JINENDRA KUMAR GANDHI 

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Supreme Court Guidelines for speedy disposal of execution of decree

 All Courts dealing with suits and execution proceedings shall

mandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court

must examine the parties to the suit under Order X in

relation to third  party interest and further exercise the power under

Order XI Rule 14 asking parties to disclose and produce

documents, upon oath, which are in possession of the parties

including declaration pertaining to third party interest in

such properties.

3. In appropriate cases, where the possession is not in

dispute and not a question of fact for adjudication before the

Court, the Court may appoint Commissioner to assess the

accurate description and status of the property.

4. After examination of parties under Order X or

production of documents under Order XI or receipt of

commission report, the Court must add all necessary or

proper parties to the suit, so as to avoid multiplicity of

proceedings and also make such joinder of cause of action in

the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be

appointed to monitor the status of the property in question

as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree,

pertaining to

7. delivery of possession of a property ensure that the

decree is unambiguous so as to not only contain clear

description of the property but also having regard to the

status of the property.

8. In a money suit, the Court must invariably resort to

Order XXI Rule 11, ensuring immediate execution of decree

for payment of money on oral application.

9. In a suit for payment of money, before settlement of

issues, the defendant may be required to disclose his assets

on oath, to the extent that he is being made liable in a suit.

The Court may further, at any stage, in appropriate cases

during the pendency of suit, using powers under Section 151

CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or

under Order XXI of CPC, must not issue notice on an

application of third-party claiming rights in a mechanical

manner. Further, the Court should refrain from entertaining

any such application(s) that has already been considered by

the Court while adjudicating the suit or which raises any

such issue which otherwise could have been raised and

determined during adjudication of suit if due diligence was

exercised by the applicant.

11. The Court should allow taking of evidence during the

execution proceedings only in exceptional and rare cases

where the question of fact could not be decided by resorting

to any other expeditious method like appointment of

Commissioner or calling for electronic materials including

photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the

objection or resistance or claim to be frivolous or mala fide,

resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant

compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term “…in name of the

judgment- debtor or by another person in trust for him or on

his behalf” should be read liberally to incorporate any other

person from whom he may have the ability to derive share,

profit or property.

14. The Executing Court must dispose of the Execution

Proceedings within six months from the date of filing, which

may be extended only by recording reasons in writing for

such delay.

15. The Executing Court may on satisfaction of the fact that

it is not possible to execute the decree without police

assistance, direct the concerned Police Station to provide

police assistance to such officials who are working towards

execution of the decree. Further, in case an offence against

the public servant while discharging his duties is brought to

the knowledge of the Court, the same must be dealt

stringently in accordance with law.

16. The Judicial Academies must prepare manuals and

ensure continuous training through appropriate mediums to

the Court personnel/staff executing the warrants, carrying

out attachment and sale and any other official duties for

executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and

update all the Rules relating to Execution of Decrees, made under

exercise of its powers under Article 227 of the Constitution of

India and Section 122 of CPC, within one year of the date of this

Order. The High Courts must ensure that the Rules are in

consonance with CPC and the above directions, with an

endeavour to expedite the process of execution with the use of

Information Technology tools. Until such time these Rules are

brought into existence, the above directions shall remain

enforceable.{Para 42}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1659-1660 of 2021

RAHUL S SHAH  Vs  JINENDRA KUMAR GANDHI 

Dated: April 22, 2021.

Coram: S.A. BOBDE J, L. NAGESWARA RAO J, S. RAVINDRA BHAT J.

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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 Judgment debtor can resist the execution of decree if it fails to challenge compromise decree?

True, the trial Court has simply recorded the terms of the compromise. But this compromise carries with it all the elements highlighted in Roshan Lal, a judgment of the Supreme Court's three-Judge Bench: "The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord in the circumstances, is entitled to have such a decree under the law."

33. About the plea of collusion, I must note that the Society has already raised that issue in an independent suit but did not pursue it. It has not even arrayed, in these proceedings, the President eo nominee. Besides, the courts below have, on facts, rejected the Society's plea of collusion. First, the court that passed the decree has inherent jurisdiction. Second, the procedural lapses, if any, have not gone to the root of the matter to nullify that decree. Third, the Society filed a suit on the same cause but later abandoned it. Fourth, in a revision, this Court will not upset findings of fact.

34. In the above context, so long as the decree has remained unchallenged, the Society or its members cannot be heard saying that despite their earlier failed attempt, they still can obstruct the decree. Such an approach, if approved, falls foul of the Rule of Law.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 296 of 2008

Decided On: 11.09.2019

 Nira and Palm Product Producers Co-op. Society's Ltd. and Ors.

Vs. Nirmala Yeshwant Pethe and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/3150/2019

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Whether a person dispossessed in the execution of decree can be put in possession of the property if he fails to prove his right?

 The above judgment of this Court clearly lays down that all issues between the parties in application Under Order XXI Rules 99, 100 and 101 need to be examined by Executing court and decided.

26. The use of the words "all questions (including the questions 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 " has to be given meaning and full play. It is also relevant to note that prior to Amendment, 1976, Under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by Amendment, 1976, Rule 103 has been amended to the following effect:

103. Orders to be treated as decrees.--Where any application has been adjudicated upon Under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

27. The purpose of amendment Under Rule 103 is also that any adjudication made Under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5632 of 2019 

Decided On: 29.07.2019

Shamsher Singh  Vs.  Nahar Singh 

Hon'ble Judges/Coram:

Ashok Bhushan and Navin Sinha, JJ.

Citation: 2020(2) MHLJ 282

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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 occupant of structure would be entitled to claim tenancy in respect of land underneath structure?

Before adverting to their contentions in detail, it must be borne in mind that the creation of tenancy is a matter governed by the provisions of Transfer of Property Act, 1882 and not by the Rent Act. It has been held by the Apex Court in Raizada Topandas and another v. M/s. Gorakhram Gokalchand, MANU/SC/0227/1963 : [1964]3SCR214 that the Rent Act does not create tenancy which is a matter of contract. Creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists in the present case. There has to be a privity of contract between the plaintiffs and the obstructionists. If there is no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erects the structures and is the owner of the said structures and inducts licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land.

The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say on what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2014, 2047, 2048, 2066 & 2093 of 1991

Decided On: 12.10.1999

Decided On: 13.10.1998

Ramkrishna Girishchandra Dode  Vs. Anand Govind Kelkar and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

 Citation : AIR 1999 Bom 89

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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 obstructionist can take defence that decree which is to be executed is nullity?

 Prior to the amendment of 1976 it was open to an obstructionist like the respondents Nos. 5 and 6 to file a separate suit and contend that the decree under execution is a nullity and is not liable to be executed as against him. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure. Rule 101 provides as under:--

"All questions (including questions 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 the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions."

The bracketed portion of the above Rule would show that the question relating to right, title or interest in the property are some of the questions which are required to be determined in the execution proceedings. This is apparent from the words "all questions including". Hence, what follows after the said phrase is merely illustrative and not exhaustive. Hence, the question whether the decree under execution is a valid decree or a nullity would fall under phrase "all questions" arising between the parties to the proceeding of an application under Rule 97 and the said question would be required under the above rule to be decided by the executing Court. Hence, the provisions of rules 97 to 101 of Order 21, if properly construed cannot be held to mean that once a decree is put in execution, it can only be resisted by an obstructionist who has an independent right to possess. Such a construction would do violence to the term "Holder of a decree for possession". Such a phrase in my view, cannot include a holder of an invalid decree for possession. If this be so, the decree holder has to first establish that the decree which he has put in execution is a valid decree for possession. Consequently, it follows that it will be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he may be trying to establish his independent right to possession.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1491 of 1984

Decided On: 05.10.1990

Mani Nariman Daruwala Vs.  Phiroz M. Bhatena 

Hon'ble Judges/Coram:

A.C. Agarwal, J.

Citation: AIR 1991 Bom 328

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