Himachal Pradesh High Court
United Church Of Northern India Trust ... vs Church Of Scotland & Ors on 21 June, 2024
Neutral Citation No. ( 2024:HHC:3827 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No. 127 of 2024 Reserved on: 27.05.2024 Date of decision: 21.06.2024 United Church of Northern India Trust Association ....Appellant Versus Church of Scotland & Ors.
....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes For the Appellant : Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate.
For the Respondents : Mr. Naresh Verma, Advocate, for respondent No. 1.
Rakesh Kainthla,Judge The appellant (Objector before the learned Trial Court) has filed the present appeal against the judgment dated 16.03.2024 passed by learned Additional District Judge, Chamba (learned First Appellate Court), vide which the appeal filed by the appellant (objector before the learned Executing Court) was dismissed and the order passed by the learned Senior Civil Judge, Chamba (learned Executing Court) was upheld. (Parties shall _________________________
1. Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 2 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that respondent No. 1/original Plaintiff/DH filed a Civil Suit against the remaining respondents/defendants, which was decreed. Respondent No. 1/DH filed an Execution Petition which was registered as Execution Petition No. 156/2013. The objector filed third-party objections under Order 21 Rules 97 and 99 of CPC. The DH replied to the objections. The objections were not considered by the learned Executing Court and a warrant of possession was issued. The objector filed CMPMO No. 46/19, which was allowed and a direction was issued to the learned Executing Court to decide the objections as per the law. The learned Executing Court framed the following issues:-
1. Whether the objectors/UCNITA is controlling and managing the affairs of the suit property? OPO
2. Whether the objections are not maintainable in the present form? OPR
3. Relief.
3. After recording the evidence of the parties, the learned Executing Court dismissed the objections holding that the objections could not have been raised in view of Section 11 of the CPC. The matter was decided in the main judgment and the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 3 learned Executing Court cannot go behind the decree. The competence of Bansi Lal to file the suit on behalf of the Church of .
Scotland was already adjudicated upon and could not be re-
adjudicated. The Objections were filed to prolong the proceedings.
Hence, issue No. 1 was answered in negative, issue No. 2 was answered in affirmative and the objection petition was dismissed.
4. Being aggrieved from the judgment passed by the learned Executing Court, the objector filed an appeal which was decided by the learned Additional District Judge, Chamba (learned First Appellate Court). Learned First Appellate Court concurred with the findings of the learned Executing Court and held that the learned Executing Court cannot go behind the decree. Once the plaintiff has been held entitled to the possession of the suit property, its status cannot be re-agitated during the execution petition. Hence, the appeal filed by the objector was dismissed.
5. Being aggrieved from the judgment of the learned Appellate Court, the present appeal has been filed. It has been asserted that the objector is a body duly registered under the Companies Act. It came into existence in 1924 with Union of Congregational Church, Churches and Presbyterian Churches of General Aikya. Its constitution was framed in 1928 so that all the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 4 Churches follow the same customs, traditions, way of worship and administration of the Churches. Bombay Public Trust Act came .
into existence in 1950 and the objector was registered under the Trust Act in 1955. The supreme body of the United Church of Northern India was also registered under the Societies Registration Act and all the Organizations are working under it.
The Board of Foreign Mission was merged with the United Church of Northern India on 21.11.1956 and its properties are being managed and controlled by UCNITA. Mumbai City Civil Court allowed the request of the plaintiffs in Civil Suit No. 1893/71 and relieved the Church of Scotland Trust and Ors from the Trust and scheme. The affairs of all the Churches are being managed by the objector. The judgment and decree dated 07.07.1971 show that it has the authority to represent the causes of the churches and no other person had any such authority. Respondent No. 1 was being represented by Sh. Anand Chandu Lal (since deceased) and P.K Samanta Roy, who were never appointed by the General Assembly as trustees. The local representatives came to know about the decree in January 2013 and thereafter, the objections were filed.
The plaintiff was being represented by Mr. Anand Chandu Lal, who died somewhere in the year 2022. The judgment passed by ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 5 the learned First Appellate Court is in favour of a dead person and is a nullity. The plaintiff has no right over the properties. Late Sh.
.
Anand Chandu Lal had forged the documents and filed the suit for his gains. It was decided by the Courts that Anand Chandu Lal had the authority to file the suit but this finding was recorded in the absence of the objector and it is not binding upon it. The principle of res judicata does not apply because the objector was not a party and the learned Courts below erred in holding that the objector is bound by the principles of res judicata. The learned Courts below should have recorded the findings on merit but they failed to do so and relied upon the findings recorded in the main suit. The Hon'ble Supreme Court had also recognised the authority of the objector in Civil Appeal No. 8800-8801/13 titled Vinod Kumar M. Malvia etc Vs. Mangan Lal Mangal Dass Gamati & Ors. The learned Courts below failed to discuss this judgment; therefore, it was prayed that the present appeal be allowed and the judgments passed by the learned Courts below be set aside.
6. The appellant proposed the following substantial question of law with the appeal:-
1. Whether both the learned Courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its right ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 6 perspective, thereby vitiating the impugned judgments and decrees?
2. Whether impugned judgments and decrees in law stand .
vitiated owing to the illegal approach of both the trial Courts is non-suiting the appellant as a third-party objector in execution petition on the basis of findings in the judgment and decree in civil suit No. 83/90 dated 30.06.1999?
3. Whether the impugned judgments and decrees in law stand vitiated having been based on provisions of Section 11 of CPC, which even remotely is not attracted in the facts of the case?
4. Whether objections under Order 21 Rule 97 CPC being third-party objections are required to be adjudicated independently dehors of the findings in the judgment and decree being sought to be executed?
5. Whether the existence of the appellant having already been affirmed and held proper by Mumbai City Civil Court and by Civil Court, Chandigarh, contrary findings without looking into the said aspect of the matter rendered by the trial courts vitiated the impugned judgments and decrees?
6. Whether in view of the judgment of the Hon'ble Apex Court in Civil Appeal Nos. 8800-8801/13, respondent No. 1 being non-entity in law cannot file and maintain the execution, but contrary findings recorded by the trial courts vitiated the impugned judgments and decrees?
7. Whether judgment passed by the appellate court being in favour of a dead person, in law, stand vitiated and is liable to be set aside?
7. I have heard Mr. Ajay Sharma, learned Senior Advocate assisted by Mr. Atharv Sharma, learned counsel for the appellant/objector and Mr. Naresh Verma, learned counsel for respondent No. 1/DH/plaintiff.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 78. Mr. Ajay Sharma, learned Senior Advocate for the appellant/objector submitted that the objector had filed detailed .
objections before the learned Executing Court, which showed that the plaintiff was not competent to represent the Churches before the Court and only the objector could have done so. Reference was made to various judgments in support of this submission. The evidence was led, but this aspect was not considered by the learned Executing Court. The learned Executing Court non-suited the objector on the principle of res judicata which does not apply to the present case, as the objector was not a party before the Court and could not have been bound by the decision in the main case.
The Court is bound to consider the objections raised by any party under Order 21 Rule 97 and cannot non-suit the objector on the principle of res judicata. He relied upon the judgments of this Court in Rajeev Dutta & Ors. Vs. Punjab Wakf Board & Anr. 2002 (3) Shim. LC 315, Silver line Forum Pvt. Ltd. v. Rajiv Trust and another, (1998) 3 SCC 723, Shreenath and another v. Rajesh and others, AIR 1998 SC 1827, Babulal v. Raj Kumar, (1996) 3 SCC 154, Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694, Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6, and Asgar v. Mohan Varma, (2020) 16 SCC 230.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 89. Mr Naresh Verma, learned counsel for respondent No. 1/plaintiff/DH supported the judgments passed by the learned .
Courts below. He submitted that the learned Executing Court is bound by the decree and the learned Courts below had rightly held that they cannot go behind the decree. The objector is not in possession and his objections under Order 21 Rule 97 and Rule 99 of CPC cannot be adjudicated. He submitted that the appeal does not disclose any substantial questions of law; hence, the same may be dismissed.
10. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
11. It was submitted that the judgment and decree was passed in favour of a dead person and the same is a nullity. This submission overlooks the fact that the plaintiff/DH is a juristic person and is being represented by a natural person before the Court. Merely, because a natural person representing a juristic person has died will not put an end to the juristic person, who will continue to exist. Therefore, to say that a juristic person will also cease to exist on the death of the natural person is not correct and the submission that since Anand Chandu Lal had died, therefore, the decree was passed in favour of the dead person is not correct.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 9The decree was passed in favour of the United Church of Scotland, which is a juristic person and will continue to survive .
notwithstanding the death of the person representing it before the Court.
12. Further, the learned Executing Court was dealing with an Execution Petition. It was laid down by Hon'ble Supreme Court in Uthirapathi v. Ashrab Ali, (1998) 3 SCC 148 that the principle of abatement of the suit does not apply to the Execution Petition in view of Order 22 Rule 12 of CPC. Hence, the execution does not abate on the death of the person. It was observed as under: -
"10. If during the pendency of a regular execution proceeding filed based on a decree or order of a civil court, the decree-holder or the judgment-debtor dies and his legal representatives are not brought on record within ninety days, can the civil court dismiss the execution petition as abated?
11. Order 22 Rule 12 of the Code of Civil Procedure reads as follows:
"Order 22 Rule 12: Application of order to proceedings.
--Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
12. In other words, the normal principle arising in a suit -- before the decree is passed -- that the legal representatives are to be brought on record within a particular period and if not, the suit could abate, -- is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 1014. In our opinion, the above statement of law in Mulla's Commentary on CPC, correctly represents the legal position relating to the procedure to be adopted by the parties in .
execution proceedings and as to the powers of the civil court.
15. It is clear, therefore, that if after the filing of an execution petition in time, the decree-holder dies and his legal representatives do not come on record -- or the judgment-debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of the law is that the execution petition remains pending on the file of the execution court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of the death of the decree-holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree-holder's legal representatives. In case of the death of the judgment debtor, the decree-holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree-holder does not apply for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event, the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree-holder's legal representatives, to file a fresh execution petition in case of death of the decree-holder; or, in case of death of the judgment-debtor, the decree-holder can file a fresh execution petition impleading the legal representatives of the judgment-debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition -- the one which was filed in time by the decree- holder initially. This is the position under the Code of Civil Procedure.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 1113. It was nowhere asserted in the objections that the objector was in possession of the property. Order 21 Rule 97 deals .
with the resistance/obstruction to the delivery of possession.
Karnataka High Court considered the question whether a person out of possession can maintain objections under Order 21 Rule 97 of CPC in Akkatai v. Baburao Sattappa Angol, 1995 SCC OnLine Kar 167 : (1995) 6 Kant LJ 219 : (1995) 2 RCR (Rent) 441. It framed the following question for determination:
"Whether a person who is not in actual possession of the property in respect of which a decree or order for possession is passed, can maintain an application in the proceedings for execution of the decree or order offering obstruction or objection to the execution?"
14. It held that the person who offers obstruction or objection to the execution by filing an application has to show that he/she is in actual possession of the property, she is not bound by the decree and has an independent right or interest in the property. It was observed as under:-
13. An application under Order 21, Rule 97 is one to be made by the decree-holder for removal of the obstruction that may be caused when possession of the immovable property is sought to be delivered to him in the execution of the decree obtained by him. Order 21, Rule 99 applies to a case where a person other than the judgment-debtor is dispossessed of the immovable property by the holder of a decree for possession and such person can make an application for restoration of possession. Thus, it is seen ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 12 that the only applications that are contemplated by Rules 97 and 99 are by the decree-holder for removal of obstruction or by a person dispossessed in execution of the .
decree for possession. The question of the decree-holder applying for removal of obstruction in a case where the obstruction or objection is not offered by the person in actual possession of the property, but by some person who is not in actual possession but who claims a right in the property, would not arise as the decree-holder can secure possession by dispossessing the person in actual possession. The necessity for a decree holder applying for removal of obstruction would arise when the person in actual possession causes obstruction to delivery and the decree-holder wants that obstruction to be removed and possession to be delivered to him. In such a case the person causing obstruction may be the judgment debtor or someone else on his instigation or someone who is bound by the decree. The obstruction could also be caused by a person who is in actual possession and who claims interest independent of the judgment-debtor and who is not bound by the decree. The obstruction can only be by a person in actual possession of the property. That this must be so can be gathered from the fact that if the decree-holder without seeking removal of obstruction manages to get possession in execution of the decree a remedy is provided for the person who is actually dispossessed and who claims interest independently of the judgment-debtor and who is not bound by the decree to seek restoration of possession. A person who is having some interest in the property and who is not bound by the decree, but who was not in actual possession of the property when the decree-holder takes possession in the execution of the decree, is not provided with any remedy under Order 21, Rule 99. If the provisions of Order 21, Rules 97 to 101 are read together it would be clear that it is only the obstruction or objection of persons who claim to be in actual possession of the immovable property which can be investigated in the execution proceedings and not the claim of a person who offers to obstruct or object to the execution though he is not in possession of the property. If it is to be held that even a ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 13 person who claims some right in the property independent of the judgment-debtor and who is not a party to the proceedings can make an application offering objection or .
obstruction to the delivery of possession to the decree-
holder, even though he is not or does not claim to be in possession of the property, then there would be no end to the travails of a decree-holder. The object of these Rules is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment-debtor against dispossession in the execution of a decree which is not binding on them, as well as to enable the decree-holder securing possession of the property removing any obstruction that may be offered either by the judgment-debtor or by the persons claiming under him and who are bound by the decree. It must be remembered that these proceedings form part of the proceedings in execution of a decree for possession of immovable property or for possession by a purchaser of an immovable property sold in execution of a decree. Persons who are not in actual possession of the immovable property are not given a right to agitate their rights in proceedings in the execution of a decree for possession under the guise of an application offering obstruction or objection to the execution.
14. Though there is some divergent opinion among other High Courts on the question as to whether an application can be filed by a third party in the execution proceedings offering obstruction to the delivery without the decree-
holder himself making an application under Order 21, Rule 97, C.P.C., so far as this Court is concerned a Division Bench of this Court in Paramound Industries and Metal Finishers v. Smt. C.M. Malliga [1990 (3) Kar. L.J. 437 : ILR 1991 KAR 254.], has held that, it is open to the person in possession of immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Rent Control Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued or to obstruct the execution of the delivery warrant and that the Executing Court has to investigate the claim in terms of Rules 98 and ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 14
101. It is on the strength of this decision the Courts below have treated the application filed by the appellant seeking a stay of the execution, as an application offering obstruction .
under Rule 97 and investigated her claim. In para 13 of the Judgment the Division Bench has held as hereunder:
"Keeping in view these basic principles, the provisions of sub-rule (1) of Rule 35 of Order 21 and Rules 97 to 101, 103 and 104 of Order 21, C.P.C. are to be read and construed. These Rules are to be read together. In that case, it is not difficult to see that these Rules provide for deciding such obstruction or objections in the same manner as a suit and the order passed therein is made appealable. No doubt Rule 99 of Order 21 also provides a remedy to such a person after he is dispossessed in the process of execution.
But we are not able to see any justification for denying a person in possession of the property in his own right and not being a party to the order of eviction or a decree for possession, a right to resist the decree for possession or the order of eviction and to have the objections decided before he is dispossessed. As to whether such a person is a party to the decree or not is one of the questions to be decided in such proceedings because, if it is found that he is not a party to the decree, then only the other contention raised by him would arise. If he is held to be a party to the decree, other contentions raised by him would not become relevant for consideration because in that event, he would be bound by the decree. Therefore, in any case, if it is established that his present possession of the immovable property against which a decree for possession is passed, is referable to the judgment debtor only or, in other words, he is not claiming independent right unconnected with the judgment debtor, even though he is not a party to the decree for possession, he must be deemed to be a party to it because, he has no independent right of his own and the present possession of the immovable property ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 15 concerned in the decree is through the judgment debtor only, and as such, he would be bound by the decree".
.
15. Again in para 15 at page 282, the Court observed as hereunder:
"Thus the executing Court can deliver possession if there is obstruction by a person who is bound by the decree by removing such a person. On the contrary, if there is obstruction or resistance by a person who is not made a party to the decree and who claims that he is not bound by the decree and he is in possession of the property, the delivery of which is sought, in his own right, the executing Court, without deciding such claim, cannot dispossess him and deliver the property to the decree-holder/auction purchaser. It is a very poor solatium to a person who is in possession of a property in his own right to tell him that he can have his right, title and interest in the property decided after he is dispossessed. It would be nothing but a travesty of justice. When the person in possession of immovable property claims that he is not bound by the decree because he is in possession in his own right, to tell him that the Court cannot examine his contention and it will execute the decree and dispossess him and thereafter he could file a suit and establish his title, is opposed to the very civilised notions of civil rights of the citizen which include a right, title and interest in, and to immovable property. This would result in obtaining collusive decrees and dispossessing the persons in possession of immovable property in their own right. This will also result in abusing the process of the Court. The endeavour of the Court must be to safeguard against such abuse of the process of the Court so as to avoid any injustice being caused to any party by the acts of the Court, in other words, by reason of exercise of jurisdiction by the Court or by the use of the process of the Court".::: Downloaded on - 24/06/2024 20:31:01 :::CIS 16
16. While answering the first point which had arisen for consideration in that case this Court has held that it is open to the person in possession of an immovable property, not .
being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued or to obstruct the execution of the delivery warrant. It is therefore abundantly clear that it is only a person who is in actual possession of the immovable property in respect of which either a decree for possession or an order for eviction is passed, who can offer his obstruction or objection by filing an application. If a person making such an application is found to be not in actual possession of the property then he or she cannot maintain the application and the Executing Court would be free to proceed with the execution.
15. It was held in Y. Umesh v. Saroja, 2000 SCC OnLine Kar 609: ILR 2001 Kar 1008 : (2000) 4 KCCR (SN 362) 405 that the objections are maintainable at the instance of a person, who is in possession of the property. The Executing Court has to decide whether the objector is bound by the decree and has a right to retain possession or not. It was observed as under:-
9. Before adverting to the factual position of the dispute, let me first refer to various legal propositions enunciated in the aforestated authorities, on which reliance was placed by learned Counsel for parties in the oft-cited Division Bench decision of this Court in Paramound Industries and Metal Finishers v. Smt. C.M. Malliga (supra), the extent and scope of the objection under Order 21 Rule 97 to the execution of a decree by an objector who happens to be in possession of the property which is the subject of the decree, has been discussed and dealt with in detail. It has been ruled therein that in view of sub-rule (1) of Rule 35 of Order 21 CPC, if the obstructor in possession of the property raised any ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 17 objection to execution of the decree against him, the Executing Court under Order 21 Rule 97 CPC, has to decide all his objections and determine the question whether or .
not the objector/obstructor is bound by the decree under execution. It is further held therein:
"Therefore, in any case, if it is established that his present possession of the immovable property against which a decree for possession is passed, is referable to the judgment-debtor only, or, in other words, he is not claiming independent right unconnected with the judgment-debtor, even though he is not a party to the decree for possession, he must be deemed to be a party to it because, he has no independent right of his own and the present possession of the immoveable property concerned in the decree is through the judgment-debtor only, and as such, he would be bound by the decree"
(vide Para-13)
10. Another proposition laid down in this decision on which much reliance was placed by Mr. Sadashiva Reddy, is:--
"The Executing Court can deliver possession if there is obstruction by a person who is bound by the decree by removing such a person. On the contrary, if there is obstruction or resistance by a person who is not made a party to the decree and who claims that he is not bound by the decree and he is in possession of the property, the delivery of which is sought, in his own right, the Executing Court, without deciding such claim, cannot dispossess him and deliver the property to the decree- holder/auction purchaser." (emphasis laid)
11. As can be seen, these legal propositions are of general applicability. In the case of Akkatai @ Sujatha, supra, the Court has observed that:--
"The object of the Rules 97 to 101 of Order 21 is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment debtor against dispossession in execution of a decree which is not binding on them." (emphasis laid) It is further held therein that:::: Downloaded on - 24/06/2024 20:31:01 :::CIS 18
"The remedy under these rules would not be available to the person who is not in actual possession of the property, which is a subject of eviction under a decree"
.
(emphasis supplied)
19. On a combined consideration of the aforestated pronouncements and Section 30 of the Act, the significant principles which clearly emerge for effective disposal of the petitioner's objection under Order 21 Rule 97 read with Section 47 of the C.P.C. to the delivery of possession of the tenanted premises in execution of the said eviction decree are; that for the objector to succeed in defeating execution of such decree, he must establish:
(i) that he is in actual physical possession of the premises which is the subject of execution of the decree; and
(ii) that he does have an independent title to the property; or
(iii) that any legal representative of the deceased's tenant who was party to the eviction proceeding failed to contest the proceeding properly and by adequately protecting the interest of other legal heir/heirs of that tenant who was/were left out as party/parties to the proceeding; or that the decree in question is vitiated by any fraud or collusion or that there are other circumstances on record which indicate that there has not been an effective or real trial of the proceeding in question, which has resulted in irreparable injury to the right of such legal heir.
16. This position was reiterated in Munishamanna v.
Dhanalakshmi, 2013 SCC OnLine Kar 9986: ILR 2014 Kar 4103: (2014) 1 KCCR (SN 33) 55 wherein it was observed:
19. Yet another aspect which requires to be taken note of by the Executing Court while examining an application filed under Order XXI Rules 97 to 101 is: a person who is not in ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 19 actual possession would have no right to agitate in the execution proceedings for delivering possession to the decree-holder, such applicant or objector offering .
obstruction to the execution proceedings need not be countenanced. A co-ordinate Bench of this Court in the case of Akkatai @ Sujatha v. Baburao Sattappa Angol [ILR 1995 Kar 1892] has held to the following effect:--
"12. An application under Order 21 Rule 97 is one to be made by the decree-holder for removal of the obstruction that may be caused when possession of the immovable property is sought to be delivered to him in the execution of the decree obtained by him. Order 21 Rule 99 applies to a case where a person other than the judgment debtor is dispossessed of the immovable property by the holder of a decree for possession and such person can make an application for restoration of possession. Thus it is seen that the only applications that are contemplated by Rules 97 and 99 are by the decree holder for removal of obstruction or by a person dispossessed in execution of the decree for possession.
The question of the decree-holder applying for removal of obstruction in a case where the obstruction or objection is not offered by the person in actual possession of the property, but by some person who is not in actual possession but who claims a right in the property, would not arise as the decree-holder can secure possession by dispossessing the person in actual possession. The necessity for a decree holder applying for removal of obstruction would arise when the person in actual possession causes obstruction to delivery and the decree-holder wants that obstruction to be removed and possession to be delivered to him. In such a case the person causing obstruction may be the judgment debtor or someone else on his instigation or someone who is bound by the decree. The obstruction could also be caused by a person who is in actual possession and who claims interest independent of the judgment-debtor and who is not bound by the decree. The obstruction can only be by a person in actual possession of the property.::: Downloaded on - 24/06/2024 20:31:01 :::CIS 20
That this must be so can be gathered from the fact that if the decree-holder without seeking removal of obstruction manages to get possession in execution of .
the decree a remedy is provided for the person who is actually dispossessed and who claims interest independently of the judgment-debtor and who is not bound by the decree to seek restoration of possession. A person who is having some interest in the property and who is not bound by the decree, but who was not in actual possession of the property when the decree- holder takes possession in execution of the decree, is not provided any remedy under Order 21 Rule 99. If the provisions of Order 21 Rules 97 to 101 are read together it would be clear that it is only the obstruction or objection of persons who claim to be in actual possession of the immovable property which can be investigated in the execution proceedings and not the claim of a person who offers to obstruct or object to the execution though he is not in possession of the property. If it is to be held that even a person who claims some right in the property independent of the judgment-debtor and who is not a party to the proceedings can make an application offering objection or obstruction to the delivery of possession to the decree-holder, even though he is not or does not claim to be in possession of the property, then there would be no end to the travails of a decree-holder. The object of these Rules is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment-debtor against dispossession in the execution of a decree which is not binding on them, as well as to enable the decree-holder securing possession of the property removing any obstruction that may be offered either by the judgment-debtor or by the persons claiming under him and who are bound by the decree. It must be remembered that these proceedings form part of the proceedings in execution of a decree for possession of immovable property or for possession by a purchaser of an immovable property sold in execution of a decree. Persons who are not in actual possession of the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 21 immovable property are not given a right to agitate their rights in proceedings in the execution of a decree for possession under the guise of an application offering .
obstruction or objection to the execution.
14. While answering the first point which had arisen for consideration in that case this Court has held that it is open to the person in possession of an immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued or to obstruct the execution of the delivery warrant. It is therefore abundantly clear that it is only a person who is in actual possession of the immovable property in respect of which either a decree for possession or an order for eviction is passed, who can offer his obstruction or objection by filing an application. If a person making such an application is found to be not in actual possession of the property then he or she cannot maintain the application and the Executing Court would be free to proceed with the execution."
20. A perusal of Rule 99 of Order XXI would clearly indicate that any person other than the judgment debtor if dispossessed of immovable property by the decree-holder of a decree can make an application to the Court complaining of such dispossession and seek possession of such property and thereupon the Executing Court is required to adjudicate upon the application as stipulated under Rule 101. A division Bench of Kerala High Court in the case of Varkey Joseph Pothanikatt v. The Board of Revenue, Trivandrum [AIR 1978 Kerala 149] has held that the obstructor must establish that such applicant was in possession of the subject property in good faith on his own account or on account of someone other than the judgment debtor. It has been held as follows:
"2. The learned Judge after noticing the facts and discussing the position found that respondents 3 to 8 were squatters on the property and they were ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 22 claiming in their own right, and therefore, having regard to the provision of Order XXI Rule 99 of the Civil P.C. which provides for delivery of possession .
after removal of obstruction, the purchaser was not entitled to get actual possession of the property. Section 41 of the Travancore-Cochin Revenue Recovery Act which is the relevant provisions reads:
"Where notwithstanding such publication, any lawful purchaser of land may be resisted and prevented from obtaining possession of his purchased land, the Collector, on application and production of the certificate of sale provided for by S. 39, shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the purchased land had been decreed to the purchaser by a decision of a civil court.
For purposes of this section, the Collector may exercise all the powers of a Civil Court under the Civil P.C. for the time being in force."
It would be noticed that the deeming,--so to say-- of the proceedings to be a decree by decision of a civil court is only for the purpose of issuing process for putting the purchaser in possession. It is for this purpose that the Collector has to exercise all the powers of a civil court under the Civil P.C. We shall assume, without finally deciding, that this provision is sufficient to attract Order XXI Rules 97 and 99 of the Civil P.C. Even then we find it difficult to sustain the order of the learned Judge. Order XXI Rule 97 allows a right for the removal of obstruction or resistance against any person in order to obtain possession of the property. Rule 98 deals with the applications against persons who offer resistance or obstruction on behalf of the judgment debtor or acting at his instigation. We may leave out this provision which has no application. We then come to Rule 99 which reads:
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 23"99. Resistance or obstruction by bona fide claimant.--Where the Court is satisfied that the resistance or obstruction was occasioned .
by any person (other than those mentioned in R. 98) 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."
It is of the essence of this provision that the resistance or obstruction must have been occasioned by a person other than the judgment-debtor and that such persons should claim in good faith to be in possession of the property on his own account or on account of someone other than the judgment-debtor.
With these ingredients or requirements of the rule, we should couple the absence of any finding in Ext. P- 7, of a claim in good faith on the part of respondents 3 to 8. Indeed we find it difficult to posit good faith on their behalf, especially in view of the facts noticed in Exts. P-6 and P-7 orders. In Ext. P-6 order it is stated:
"It is therefore clear that the property was in the effective management and possession of the Government all these years without any occupants on the site. It was put to sale while it was under
sirkar management. Hence the auction was made of a property free of any occupation."
This finding of the Tahsildar was not in any way interfered with or set-aside or differed from in Ext. P-7 order of the Board of Revenue. Having regard to 'the accepted fact that the property was under
Government management and possession, it would be a sad reflection on the said management, to lightly presume that the Government permitted, or connived at encroachers roaming over the property. Without any material and data, we would not be justified in coming to such a conclusion. We are therefore of the opinion that the Board of Revenue was wrong in ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 24 passing Ext. P-7 order without adverting to these relevant and material aspects of the provisions that we have noticed.
.
4. Counsel for respondents 3 to 8 raised the contention that the Tahsildar who passed Ext. P-6 order had no jurisdiction to pass the same, and that he had not been empowered by the Government to perform the functions of the Collector either by name or by virtue of his office. The objection in regard to the jurisdiction of the Tahsildar was not raised at any stage. The Tahsildar's order was carried up in revision to the Board of Revenue. There was no occasion for respondents, perhaps, to raise or press the plea of want of jurisdiction of the Tahsildar as they succeeded in the revision on the merits. Before the learned single Judge again who heard the writ petition against Ext. P-7 order, there was, presumably, no ground to urge the plea of want of jurisdiction on the part of the Tahsildar, as the learned Judge dismissed the writ petition on the merits. Before us, the plea was urged. The learned Government Pleader stated that he could not positively state whether the Tahsildar had jurisdiction; but that, he gathered that there is no specific empowerment of the Tahsildar. Even assuming, without deciding, that the Tahsildar had no jurisdiction we do not think on this ground we should decline to interfere with Ext. P-7 order of the Board of Revenue. We think the interests of justice would be advanced by quashing Ext. P-7 order to enable the purchaser to realise the fruits of his purchase rather than maintain the order and continue the illegal occupation of the Respondents.
We allow the appeal and set aside the judgment of the learned Judge. In the result, we allow O.P. No. 4716 of 1972 and direct that Ext. P-7 order of the Board of Revenue will stand quashed. There will be no order as to costs.
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 2520. A similar view has been taken by the Calcutta High Court in the case of Shyamapada Bhattacharyya v. Ajit Kumar Basu Mallick [AIR 1973 Calcutta 336] namely, a .
claimant or objector must be in possession of the subject property under some independent right or title of his own to obstruct from decree being executed. It came to be held in the said judgment as under:--
"21. This is the scope of the application before me and unless Mr. Sarkar's client can show that he has been in possession of the property under some independent right or title of his own, the purchaser of the property which is sold in execution of the decree can claim that the resistance is made by the judgment-debtor or some person at his instigation and such resistance is not made in good faith under any bona fide title. Opportunity was given to Mr. Sarkar's client to give evidence before me to prove that he has any independent right or title, but Mr. Sarkar's client did not do so. Mr Sarkar did not bring his client in the witness box nor tender any evidence to show that his client has any bona fide right or title."
17. Gujarat High Court is also of a similar view in Kesarben Dhulaji Prajapati v. Amarsingh Baldevsingh Chauhan, 1995 SCC OnLine Guj 298 : (1996) 2 ICC 716 : (1996) 37 (1) GLR 71: 1996 AIHC 465 : (1996) 1 GCD 55 and it observed as under:-
19. The question may also be considered as "What is the right of the obstructionist, as an opponent in an application under Order 21 Rule 97 CPC ?" To my mind, the extent of the right is commensurate with the status of the obstructionist, viz., as an opponent in the application of the decree-holder under Order 21, Rule 97. His only right is a right to protect his possession by showing a legitimate, legal and better right to possession than the decree-holder.
Secondly, the only objection such an opponent can raise or which would be permissible would be such as would enable him to protect his possession, and such objection must have a ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 26 direct nexus with the possession sought to be protected. Such a right would not extend to challenging the decree under execution, on any ground whatsoever, at least in proceedings .
under Order 21, Rule 97. In other words, the obstructionist is confined to his locus and status of the opponent in the application under Order 21, Rule 97, and to take a view that he could raise any and all objections (including an objection which goes beyond the decree or an objection which hits the decree on merits) would extend the locus and status of the obstructionist to that of a judgment-debtor. Clearly, in my view, this is not permissible, inasmuch as the entire scheme of Order 21, when seen as a whole, and the scheme of Rules 97 to 101, when read collectively, clearly demarcate and keep apart the locus and status of the obstructionist as against the judgment-debtor. To permit such contentions to be raised would merge the interest of the obstructionist with that of the judgment-debtor. In my view, this is not permitted by the general scheme of the aforesaid provisions." (Emphasis supplied)
18. Even the Hon'ble Supreme Court held in Silverline Forum (P) Ltd. (supra) that the Executing Court is not to adjudicate all the questions arising between the parties but to determine only such questions as may be arising between the parties to such proceedings. Therefore, the Executing Court has to determine whether the question has legally arisen between the parties and whether it was relevant for the determination of the dispute. A third party who claims the validity of transfer cannot claim that such a question should be decided during the Execution Petition.
It was observed as under:-
::: Downloaded on - 24/06/2024 20:31:01 :::CIS 2711. 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 questions 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.
12. 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 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, that 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." (Emphasis supplied)
19. In Shreenath and another (supra), the Hon'ble Supreme Court held that Order 21 Rule 97 will come into operation when a person in possession offers resistance to the decree holder on ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 28 which the decree holder has to file the application under Order 21 Rule 97 of CPC. It was observed:
.
10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property.
The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment- debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-
holder, in such a case, may make an application to the executing court complaining of such resistance to delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by the 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 29 claim made in any such application under Order 21 Rule 97. Thus, by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in .
the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger.
20. A similar view was taken in Babu Lal (supra). It was held in Brahmdeo Chaudhary (supra) that provisions of Order 21 Rule 97 will come into force when the delivery of possessions is observed:
r to obstructed by any person not bound by the decree. It was
8. A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in the execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 30 prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already .
dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before the appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101.
9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to the execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree- holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub- rule (1) and he cannot bypass such obstruction and insist on reissuance of a warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with the removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 31 executing court it is difficult to appreciate how the executing court can tell such an obstructionist that he must first lose possession and then only his remedy is to move an application .
under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule
99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder.
While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on the adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come into the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect, the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that the only remedy of such a stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 32 by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and .
interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such an obstructionist whose grievance would go overboard without being considered on merits and such an obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the grounds of non-compliance with basic principles of natural justice. On the contrary, the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and the separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves." (Emphasis supplied)
21. A similar view was taken in Bhanwar Lal (supra) wherein it was observed:
3. A reading of Order 21, Rule 35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be perforce bound by the decree. Admittedly, Satyanarain was not a judgment-
debtor and that therefore, he is not bound by the decree ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 33 unless he claims right, title or interest through the judgment-debtor, Ram Kishan. The person resisting delivery of possession must be bound by the decree for .
possession. In other words, the resistor must claim a derivate title from the judgment-debtor. The court gets power under Order 21, Rule 97 to remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable property after conducting enquiry under Rule 97.
22. In Asgar (supra), the Hon'ble Supreme Court held that a person in possession has a right to get his right adjudicated before the dispossession. It was observed:
"46. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order 21 Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order 21 Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order 21 Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103."
23. Similarly, it was held in Sriram Housing Finance & Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust, (2022) 15 SCC 176, that when a person claims to be a bona fide purchaser of the property and not the person dispossessed by the ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 34 decree, he cannot claim the benefit of Order 21 Rule 97 and Rule
99. It was observed as under:-
.
"24. On a conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the "decree-holder" who is entitled to make an application in case where he is offered resistance or obstruction by "any person". In the present case, as admitted by the appellant itself, it is a bona fide purchaser of the property and not the "decree-holder". As available from the material placed on record, it is the respondent Trust along with legal heirs of late N.D. Mishra who are the decree-holders and not the appellant. Therefore, it is obvious that the appellant cannot take shelter of Rule 97 as stated above to raise objections against the execution of the decree passed in favour of the respondent. Further, Rule 99 pertains to making a complaint to the Court against "dispossession" of the immovable property by the person in "possession" of the property by the holder of a decree or purchaser thereof.
25. It is factually not in dispute that the appellant purchased the said property from Mr Yogesh Mishra vide sale deed dated 12-4-2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent Trust in execution of decree dated 2-9-2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.
26. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for the determination of questions relating to disputes as to right, title or interest in the property arising between the parties ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 35 to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh .
suit for adjudication of disputes as mentioned above. Now, in the present case, Order 21 Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above.
Accordingly, we find no substance in the argument raised by the learned counsel for the appellant.
27. In such circumstances, the executing court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by the appellant. By doing so, the executing court transgressed the scope of Order 21 Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of the trial court entertaining the objections filed by the appellant under Order 21 Rule 97 to Rule 102." (Emphasis supplied)
24. It was held in Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738 that in an inquiry under Order 21 Rule 97, the Executing Court cannot decide the question of title set up by a third party, who asserts independent title in the property It was observed as under:-
126. 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 ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 36 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. (Emphasis supplied)
25. This position was reiterated in Jini Dhanrajgir v. Shibu Mathew, 2023 SCC OnLine SC 643 wherein it was observed as under:-
"17. Section 47 of the CPC, being one of the most important provisions relating to the execution of decrees, mandates that the court executing the decree shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit. What is intended by conferring exclusive jurisdiction on the executing court is to prevent needless and unnecessary litigation and to achieve speedy disposal of the questions arising for discussion in relation to the execution, discharge or satisfaction of the decree. Should there be any resistance offered or obstruction raised impeding due execution of a decree made by a court of competent jurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI enable the executing court to adjudicate the inter se claims of the decree-holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by driving the parties to institute independent suits. No wonder, the provisions contained in Rules 97 to 106 of Order XXI of the CPC under the sub-heading "Resistance to delivery of possession to decree-holder or purchaser" have ::: Downloaded on - 24/06/2024 20:31:01 :::CIS 37 been held by this Court to be a complete code in itself in Brahmdeo Chaudhary (supra) as well as in a decision of recent origin in Asgar v. Mohan Verma (2020)16 SCC 230. In .
the latter decision, it has been noted that Rules 97 to 103 of Order XXI provide the sole remedy both to parties to a suit as well as to a stranger to the decree put to execution.
26. Therefore, the various judgments of the Hon'ble Supreme Court have clearly laid down that the Courts are under an obligation to decide the objections of a person in possession offering resistance or obstruction to the execution of the decree.
The Court is not bound to decide the independent title set up by a person during the execution proceedings.
27. In the present case, the objector is claiming an independent right and is not asserting that it is in possession.
Therefore, the objector is not entitled to be heard under Order 21 Rule 97 and the present objections at its instance were not maintainable. Consequently, the substantial questions of law proposed by it do not fall for consideration in the present case.
28. In view of the above, the present appeal fails and the same is dismissed. Pending application(s), if any, shall also stand disposed of.
(Rakesh Kainthla) Judge 21st June, 2024.
(Shamsh Tabrez) ::: Downloaded on - 24/06/2024 20:31:01 :::CIS