Allahabad High Court
Poonam Pandey And Another vs Kulsum And 9 Others on 23 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on- 02.04.2026 Judgment Delivered on- 23.04.2026 Neutral Citation No. - 2026:AHC:90355 Court No. - 53 Case :- FIRST APPEAL No. - 306 of 2026 Appellant :- Poonam Pandey And Another Respondent :- Kulsum And 9 Others Counsel for Appellant :- Arpit Malviya, Awadhesh Kumar Malviya Counsel for Respondent :- Hon'ble Sandeep Jain, J.
1. Supplementary affidavit filed is taken on record.
2. The instant appeal has been filed by the appellants under Order 21 Rule 103 C.P.C. challenging the impugned order dated 06.01.2026 passed by the Court of Civil Judge (Senior Division)/Fast Track Court, Ghazipur in Misc. Case No.57 of 2023 (Poonam Pandey and others vs. Nizamuddin and others), whereby appellants' application under Order 21 Rule 97 and 99 C.P.C. was rejected on the ground that it was not maintainable.
3. Earlier, the appellants had preferred a writ petition being Matters Under Article 227 No.2578 of 2026 (Smt. Poonam Pandey and another vs. Kalrun and others) before this Court, which was disposed of by order dated 25.02.2026 on the ground that it was not maintainable since the impugned order was a decree under Order 21 Rule 103 CPC, which was appealable.
4. Learned counsel for the appellants submitted that the appellants were residing in the disputed property, who are having ownership in it being the legal heirs of their deceased father Paramhans Pandey, but they were not made a party to the suit no.348 of 1988 and as such, the decree passed in that suit was not binding upon them. It was further submitted that the decree passed in the above suit was a collusive decree, which has been passed in collusion with the defendants.
5. Learned counsel submitted that since the appellants were having vested independent right in the property, as such, they cannot be evicted from the property in the execution proceedings initiated by the decree holder of Original Suit No.348 of 1988.
6. I have heard the learned counsel for the appellants and perused the documents submitted with the appeal.
7. It is apparent from the documents submitted with the appeal that the plaintiff/decree holder Nizamuddin filed O.S. No.348 of 1988 against defendants Shivanand Bharti son of Raja Ram Bharti, Shri Ram, Ramji and Basant Kumar sons of Shivanand Pandey(Bharti) for the relief of permanent injunction and for getting possession of the disputed property on the ground that he is the owner of the disputed property and the defendants are threatening to dispossess him and the defendants have also made encroachment on his land to which he is entitled to reclaim the possession. The defendants submitted their written statement in this suit with the averments that they are the owners on the basis of adverse possession in the disputed property.
8. It was further averred by the defendants that the plaintiff is neither the owner nor in possession of the disputed property. The defendants admitted that they are in possession of the disputed property. It is relevant to mention here that the dispute is in relation to Arazi No.2299 situated in Village Karimuddinpur, Pargana Muhammadabad, District Ghazipur.
9. The trial court decreed the suit on 22.12.2011 and it has recorded a specific finding that the plaintiff is the owner of the disputed property on the basis of sale deed executed in his favour, in which the defendants have made illegal construction and in view of the evidence on record, the original suit of the plaintiff was decreed and the defendants were directed to remove their illegal construction on the disputed property and hand its possession to the plaintiff, failing which, the plaintiff was held entitled to get the relief through court.
10. It is further apparent that the defendants challenged the impugned decree of the trial court by filing Civil Appeal No.7 of 2012 (Shivanand Bharti and others vs. Nizamuddin), which was dismissed on merits on 21.10.2019 by the Additional District Judge, Court No.1, Ghazipur, as such, the decree passed by the trial court has been affirmed.
11. The appellate court also specifically concluded that the defendants failed to prove their ownership of the disputed property.
12. It is further apparent that the decree passed in Original Suit No.348 of 1988 was put in execution by the plaintiff/decree holder by filing Execution Case No. 03 of 2020 for getting possession of the disputed land, which was illegally in possession of the defendants in which the appellants moved an application under Order 21 Rule 97 and 99 C.P.C. on the basis that they are the owners of the disputed property, they are having vested right in it, but they were not impleaded in the original suit as defendants, as such, the decree passed in the original suit, which was affirmed by the appellate court, was not binding on them.
13. The appellants' application under Order 21 Rule 97 and 99 C.P.C. has been dismissed by the execution court by impugned order dated 06.01.2026 on the ground that the appellants are alleging to be in possession of the disputed property. A finding has been recorded that since the appellants were never dispossessed from the disputed property, as such, the application moved by them was not legally maintainable. It was further held that the appellants are not decree holders as per Order 21 Rule 97 C.P.C. and as per Rule 99, they have not been dispossessed from the disputed property, hence, they have no right to raise objection in execution proceedings under Order 21 Rule 97 and 99 C.P.C. Aggrieved against which, the instant appeal has been filed by the appellants.
14. The Apex Court in the case of Periyammal (Dead) Through LRs. And Others vs. V. Rajamani and Another 2025 SCC OnLine SC 507 while interpreting Order 21 Rule 97 and Rule 99 C.P.C., held as under:-
43. It is a settled position of law that an application under Order 21 Rule 97 may be made in respect of obstruction raised by any person in obtaining possession of the decretal property. The courts adjudicating such application have to do so in accordance with Rule 101 and hold a full-fledged inquiry to determine all questions including questions relating to right, title or interest in the property arising between the parties.
44. This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 694, has held that: (SCC pp. 701-703 & 705, paras 8-10)
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 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 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 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 99CPC 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 appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21 Rule 101.
5. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to 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 in only under Order 21 Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of 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 removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21 Rule 99CPC 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 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 in the picture only at the final stage after losing the 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 only remedy of such 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 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 or 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 obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21 Rule 97CPC 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 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 and 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.
10. 5. A reading of Order 21 Rule 97CPC clearly envisages that any person even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or sets up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person. [Ed.: As observed in Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6, p. 9, para 5.]
45. In Shreenath [Shreenath v. Rajesh, (1998) 4 SCC 543], the application under Order 21 Rule 97 was filed by the tenants who were not parties to the suit. The question was whether the tenants could maintain an application under Order 21 Rule 97. This Court while interpreting the words any person held that any person includes even persons not bound by the decree. Paras 10 and 11 read thus: (SCC pp. 548-49, paras 10-11)
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 such resistance for 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 finality 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 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, includes tenants or other persons claiming right on their own including a stranger.
11. So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the executing court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get it adjudicated in the very execution proceedings. We find that Order 21 Rule 35 deals with cases of delivery of possession of an immovable property to the decree-holder by delivery of actual physical possession and by removing any person in possession who is bound by a decree, while under Order 21 Rule 36 only symbolic possession is given where the tenant is in actual possession. Order 21 Rule 97 as aforesaid, conceives of cases where delivery of possession to decree-holder or purchaser is resisted by any person. Any person, as aforesaid, is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including a stranger.
46. In Silverline Forum (P) Ltd. v. Rajiv Trust (1998) 3 SCC 723 , a three-Judge Bench of this Court has observed that a third party to the decree including the transferee pendente lite can offer resistance or obstruction and his right has to be adjudicated under Order 21 Rule 97CPC. The relevant portion of the said judgment is reproduced below: (SCC pp. 727-29, paras 9-10 & 14)
9. At the outset, we may observe that it is difficult to agree with the High Court [Silverline Forum (P) Ltd. v. Rajiv Trust, 1997 SCC OnLine Cal 152] that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption Resistance to delivery of possession to decree-holder or purchaser. Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.
10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the executing court, if such questions are relevant to the adjudication of the application. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the executing court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act.
***
14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refused 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. Court can make the 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.
47. This Court in N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd. (2002) 1 SCC 662 , has held as under: (SCC pp. 668-69, paras 15 & 19)
15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from any person. From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that 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 [Ed.: The matter between two asterisks has been emphasised in original.] shall be determined by the Court dealing with the application and not by a separate suit [Ed.: The matter between two asterisks has been emphasised in original.] 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. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case.
***
19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree.
48. In Sameer Singh v. Abdul Rab [(2015) 1 SCC 379 : (2015) 1 SCC (Civ) 509] , this Court, after considering its previous judgment in Brahmdeo Chaudhary [Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694] has held thus: (SCC p. 389, para 26)
26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order 21 Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different.
49. A conjoint reading of the relevant provisions and the principles laid down by this Court makes it clear that in execution of decree for possession of immovable property, the executing court delivers actual physical possession of the decretal land to the decree-holder. Rule 35 confers jurisdiction on the executing court to remove any person, who is bound by the decree and who refuses to vacate the property. The words any person who is bound by the decree, clearly mandate that removal can only be of a person who is bound by the decree. Rules 97 to 101 deal with situation when execution is obstructed or resisted by any person claiming right, title or interest in the property. The words any person include even a stranger to a decree resisting the decree of possession as not being bound by a decree or by claiming independent right, title or interest to the property.
50. Thus, Rule 97 not only provides to a decree-holder in obtaining possession of an immovable property but also to a stranger who obstructs or resists delivery of possession of the property by claiming derivative title from the judgment debtor or independent right, title or interest in the decretal property. Whereas, Rule 99 gives right to a third party claiming right, title or interest in the property to seek restoration of the decretal property. Suffice it to say that the remedy under Rule 99 is available when a person claiming right to the decretal property is already dispossessed.
51. Rule 101 enjoins upon the executing court dealing with application under Rule 97 or 99 to determine all questions including questions relating to right, title or interest in the property, arising between the parties and relevant to the adjudication of the application. As held by this Court in Silverline Forum (P) Ltd. v. Rajiv Trust, (1998) 3 SCC 723 the question that the executing court is obliged to determine under Rule 101 must possess two adjuncts viz. (i) that such question should have legally arisen between the parties, and (ii) such question must be relevant for consideration and determination between the parties. Upon adjudication of such questions, the executing court is under an obligation to pass appropriate order as contemplated under Rule 98 or 100, as the case may be. When eventually such order is passed, it would be treated as decree and no separate suit would lie against such order. It therefore follows that the only remedy is to prefer an appeal before the appropriate court against such deemed decree.
(iii) Section 47CPC vis--vis Order 21 Rule 97CPC
52. Under Section 47CPC, questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree are covered whereas under Order 21 Rule 97 read with Rule 101 CPC, questions including those relating to right, title or interest in the property arising between the parties to the proceeding on an application under Rule 97 or Rule 99 of Order 21 are to be determined by the executing court. The language of Rule 97 provides that where the holder of a decree for possession of immovable property 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. The language used is obstructed by any person. It may be by the judgment-debtor or by a third person. Sub-rule (2) of the said Rule 97 further provides that where an application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions thereunder contained. Sub-rule (2) of Rule 98 of Order 21 further provides that where upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, he shall direct that the applicant be put into possession of the property.
53. Rule 101 of Order 21 provides as under:
101. Question to be determined.
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.
54. Thus the cumulative effect of all these rights read together is that if an application under Order 21 Rule 97 is made, then its determination will be under Rule 101 and then Rule 103 further provides that where any application has been adjudicated upon under Rules 98 or 100, the order made thereon shall have the same force and will be subject to the same conditions as to an appeal or otherwise as if it were a decree. Under Section 47CPC all questions relating to the execution, discharge or satisfaction of the decree, have to be determined by the executing court whereas under Rule 101 all questions including question relating to right, title or interest in the property arising between the parties to the proceedings have to be determined by the executing court. Section 47 is a general provision whereas Order 21 Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals with executions of all kinds of decrees whereas Order 21 Rules 97 and 101 deal only with execution of decree for possession. Apart from that, earlier i.e. prior to the amendment, every order falling under Section 47 was appealable (as the terms decree included the order under Section 47CPC) whereas now only certain orders as provided for under Order 21 have been made appealable.
56. This Court in Bhanwar Lal v. Satyanarain (1995) 1 SCC 6 , has held that even an application filed under Section 47 would be treated as an application under Order 21 Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property is not a condition for declining to entertain the application. The relevant portion of the judgment is reproduced below: (SCC p. 9, paras 5-7)
5. The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21 Rules 98 to 102. A reading of Order 21 Rule 97CPC clearly envisages that any person even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.
6. When the appellant had made the application on 25-5-1979 against Satyanarain, in law it must be only the application made under Order 21 Rule 97(1)CPC. The executing court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the executing court dismissed the second application on limitation and also the third application, on the ground of res judicata which the High Court has in the revisions now upheld. The procedure is the handmaid of substantive justice but in this case it has ruled the roost.
7. In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25-5-1979 was made, the Court should have treated it to be one filed under Order 21 Rule 97(1)CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21 Rules 35(3) and 97(2) and Order 21 Rules 101 and 102CPC.
****
65. What flows from the position of law, as aforestated, is that the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi [(2021) 6 SCC 418 : (2021) 3 SCC (Civ) 569] has held that the benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation of fruits of the decree. The relevant portion of the judgment is reproduced below: (SCC p. 430, paras 24-27)
24. In respect of execution of a decree, Section 47CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.
26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgment-debtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.
27. This is antithesis to the scheme of the Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order 1 and Order 2 which relate to parties to suits and frame of suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go.
****
75. It is worthwhile to revisit the observations in Rahul S. Shah [Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 : (2021) 3 SCC (Civ) 569] wherein this Court has provided guidelines and directions for conduct of execution proceedings. The relevant portion of the said judgment is reproduced below: (SCC pp. 433-35, para 42)
42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions:
42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order 10 in relation to third-party interest and further exercise the power under Order 11 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.
42.2. 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.
42.3. After examination of parties under Order 10 or production of documents under Order 11 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.
42.4. Under Order 40 Rule 1CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
42.5. The court must, before passing the decree, pertaining to 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.
42.6. In a money suit, the court must invariably resort to Order 21 Rule 11, ensuring immediate execution of decree for payment of money on oral application.
42.7. 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 151CPC, demand security to ensure satisfaction of any decree.
42.8. The court exercising jurisdiction under Section 47 or under Order 21CPC, 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.
42.9. 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.
42.10. 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 21 as well as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section 60CPC 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.
42.12. 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.
42.13. The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the police station concerned 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 with stringently in accordance with law.
42.14. 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.
(emphasis supplied)
15. The Apex Court in the case of Alka Shrirang Chavan and Another vs. Hemchandra Rajaram Bhonsale and Others 2026 SCC OnLine SC 55, held as under:-
59. In Silverline Forum Pvt. Ltd. v. Rajiv Trust [(1998) 3 SCC 723] , a sub-tenant, who was not a party to a decree for eviction, resisted execution of the decree and the court ordered an inquiry under Section 151CPC. The High Court upheld that order and that was challenged in appeal before this Court. While disagreeing with the view taken by the High Court that resistance or obstruction made by a third party to the decree for execution cannot be gone into under Order XXI Rule 97CPC, this Court observed as under:
9. ..Rules 97 to 106 in Order 21 of the Code are subsumed under the caption Resistance to delivery of possession to decree-holder or purchaser. Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.
10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the executing court, if such questions are relevant to the adjudication of the application. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.
11. 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.
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, 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.
13. In the above context we may refer to Order 21 Rule 35(1) which reads thus:
35. (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
59.1. This Court held that it is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and whether he refuses to vacate the property. It has been held thus:
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 the 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.
60. NSS Narayana Sarma v. Goldstone Exports (P) Ltd. (2002) 1 SCC 662 , also makes an analysis of Order XXI Rules 97 to 101 CPC. In this case, the contest was between two sets of transferees of the subject property, including the appellants. The objections filed by the appellants under Order XXI Rule 99 read with Rule 101 CPC having been dismissed by the High Court as non-maintainable, the appellants were before this Court assailing the judgment of the High Court. In that context, this Court examined the aforesaid provisions in the following manner:
15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from any person. From the provisions in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that 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. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case.
60.1. After adverting to Silverline and other decided cases, this Court concluded as under:
19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree
61. The next case on this issue is Usha Sinha v. Dina Ram [(2008) 7 SCC 144] . After agreeing with the proposition of law laid down in Silverline, this Court held as under:
25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
26. For invoking Rule 102, it is enough for the decree-holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment-debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21.
(emphasis supplied) Conclusion of this Court
16. It is apparent from the above law laid down by the Apex Court in the case of Periyammal (supra) and Alka Shrirang Chavan (supra) that even a stranger is entitled to obstruct the execution of a decree of possession by claiming independent right in the disputed property and such right is to be adjudicated by the executing court under Order 21 Rule 97 and 99 C.P.C. It is further apparent that for adjudicating the right of the stranger under Order 21 Rule 99 C.P.C., it is not mandatory that he had been dispossessed by the decree holder from the disputed property before his objections can be considered by the executing court. The trial court in the instant case has dismissed the application of the appellants on the ground that they are neither the decree holder under Order 21 Rule 97 C.P.C. nor they have been dispossessed under Order 21 Rule 99 C.P.C., hence, their application is not legally maintainable. In the light of the law laid down by the Apex Court in the above mentioned cases, certainly the reasoning of the executing court is erroneous and legally unsustainable. It is apparent that the appellants application could not have been dismissed on the ground of maintainability. But the question remains whether the appellants have proved any prima facie independent right, title and interest in the disputed property, entitling them to resist their dispossession from it?
17. The Apex Court in the case of Rahul S. Shah (supra) has held that the Court should refrain from entertaining an application of the third party claiming rights in the disputed property, in a mechanical manner and should only take evidence in execution proceedings in exceptional and rare cases. It was further held that where the Court finds the objections or resistance or claim to be frivolous or malafide, it can resort to Order 21 Rule 98(2) C.P.C. for granting compensatory costs in accordance with Section 35-A.
18. It is alleged by the appellants/applicants in their application under Order 21 Rule 97 and 99 C.P.C. that the predecessor/grandfather of the applicants was Rajaram and after his death, a partition took place between the sons of Rajaram namely Shivanand Bharti and Paramhans Pandey, about 10 years back. The applicants have not disclosed when Rajaram died and when partition took place between his sons, but have mentioned that their father died in the year 2009.
19. It is also apparent that the plaintiff in O.S. No.348 of 1988 claimed ownership of disputed property on the basis of sale deed, whereas, no documentary proof of ownership could be produced by defendants in that case.
20. It is apparent that the appellants have failed to produce any documentary evidence to establish their ownership or any independent right in the disputed property. The appellants allege that the disputed property was allotted to their father, Paramhans Pandey, in a family partition, and upon his death, they became the owners in possession of the property. It is apparent that if the partition took place during the pendency of the original suit, then on this basis no rights can be claimed by the appellants. The appellants further contend that the plaintiffs and defendants in O.S. No. 348 of 1988 were neither the rightful owners nor in possession of the disputed property, and, as such, the decree passed in O.S. No. 348 of 1988 was collusive but no documentary evidence has been submitted in this regard by the appellants.
21. It is further evident that the suit was contested by Paramhans Pandeys brother, Shivanand Bharti, and his sons, namely Sri Ram, Ramji, and Basant Kumar. It is also apparent that Shivanand Bharti and his family and Paramhans Pandey and his family were residing in the same disputed house, as alleged by the appellants, hence, it is improbable that the appellants were unaware of the pendency of O.S. No.348 of 1988 and Civil Appeal No.7 of 2012.
22. Since the defendants and the appellants were residing in the same disputed house, if they had any right in the property, they could have moved an impleadment application in the original suit. However, despite being aware of the suit, no such application was ever filed by them.
23. It is further apparent that no independent right has vested in the appellants to challenge the decree passed in that suit. The application under Order 21 Rules 97 and 99 C.P.C. appears to have been filed merely to frustrate the decree passed in O.S. No. 348 of 1988, in collusion with the judgment debtors. Since the appellants have failed to demonstrate any independent right or interest in the disputed property, they are not entitled to resist the decree passed in O.S. No. 348 of 1988.
24. Accordingly, the appeal lacks merit and is liable to be dismissed at the admission stage.
25. The appeal is dismissed at the admission stage.
26. Consequently, the impugned order dated 06.01.2026 is affirmed, albeit on a different ground.
Order Date:-23.04.2026 Mayank (Sandeep Jain, J.)