Salik Ram Singh @ Salik Ram vs Addl. District Judge Court No.3 Gonda ... on 4 February, 2022

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Allahabad High Court

Salik Ram Singh @ Salik Ram vs Addl. District Judge Court No.3 Gonda ... on 4 February, 2022

Bench: Saurabh Lavania





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 30.11.2021
 
Delivered on 04.02.2022
 
AFR
 
Court No. - 32
 
Case :- MATTERS UNDER ARTICLE 227 No. - 27153 of 2021
 

 
Petitioner :- Salik Ram Singh @ Salik Ram
 
Respondent :- Addl. District Judge Court No.3 Gonda And Ors.
 
Counsel for Petitioner :- A.Z. Siddiqui
 
Counsel for Respondent :- Ankit Pande
 

 
Hon'ble Saurabh Lavania,J.

Heard learned counsel for the parties.

The instant petition has been preferred for the following main reliefs:-

"I. Issue order or direction setting aside the impugned Order dated 29.10.2021 passed by Executing Court in Execution Case No.1/2017 pending before the Opposite Party No.1, contained in Annexure No.1 to this petition;

II. Issue order or direction setting aside the impugned Order dated 11.11.2021 passed by Opposite Party No.1 in Execution Case No.1/2017 and every subsequent proceedings thereof contained in Annexure No.2 to this petition."

In brief, the petitioner, who was not a party to the SCC Suit No. 5 of 2014, claiming himself to be an owner in possession of the property in issue in the suit, is resisting the judgment and decree dated 29.03.2017, which has become final.

Facts relevant for the present case, as stated, are to the effect that Vishwanath Kumar Mehrotra s/o Braj Mohan Lal, was the sole owner of the property in question i.e. Gata No. 1789M situated at Mohalla Chhedipurwa, Station Road, Gonda. The said Vishwanath Kumar Mehrotra, who was handicapped and since he was not being looked after by his wife and children, bequeathed his entire property by way of a registered Will Deed dated 01.06.1970 in favour of the petitioner and based upon the same, the petitioner, after death of Vishwanath Kumar Mehrotra, being successor, became the owner of the property under the Will Deed dated 01.06.1970 including the property in issue.

It is also stated that Shyama @ Shyamo Devi, widow of Vishwanath Kumar Mehrotra, filed a SCC Suit No. 5 of 2014 for eviction of the shop (property in issue) in collusion with one Masroor Ahmed, who as per the petitioner was never the tenant or lessee of Late Vishwanath Kumar Mehrotra. On coming to know about the pendency of suit, the petitioner on the basis of a Will Deed dated 01.06.1970 preferred an application dated 14.09.2016 for impleadment under Order 1 Rule 10 of Code of Civil Procedure (in short "CPC") praying therein that the petitioner be impleaded in the array of the parties in the suit. The said application was opposed by Shyamo Devi vide her objection dated 01.10.2016. The petitioner's application No. C2/64 for impleadment was rejected on 26.11.2016 for want of prosecution. Thereafter, the SCC Suit No.5 of 2014 was decreed in favour of Shyamo Devi vide order dated 29.03.2017.

On coming to know about the aforesaid, the petitioner assailed the orders dated 26.11.2016 as also 29.03.2017 by filing a Revision along with an application for condonation of delay registered as Miscellaneous Case No. 617 of 2017, which was rejected on 15.02.2019 by the Revisional Court.

Thereafter, the petitioner assailed the orders dated 15.02.2019, 26.11.2016 and 29.03.2017 before this Court by filing a petition i.e. Misc. Single No. 14839 of 2019 (Salik Ram Singh v. 3rd Additional District Judge Gonda and Ors.), which was dismissed on 24.05.2019 by this Court with an observation that the petitioner may file a suit for declaration of his claim in regard to property in dispute and thereafter, taking note of the observation made by this Court in the judgment dated 24.05.2019 passed in Petition No. 14839 of 2019, the petitioner preferred a suit for declaration i.e. Regular Suit No. 481 of 2019, which is pending before a Court of competent jurisdiction. In addition to Regular Suit for declaration of rights over the property in question, the petitioner preferred two application dated 09.08.2021 Nos. 137-C1/1 (for stay of the execution proceedings) and 140-C2/1 under Order 21 Rule 97/99/101 of CPC before the Execution Court in Execution Case No. 1 of 2017, which were rejected on 29.10.2021. Thereafter, the petitioner preferred a Review Application for reviewing the order dated 29.10.2021, which was also rejected by the Execution Court on 11.11.2021. The orders dated 29.10.2021 and 11.11.2021 are impugned in this petition.

The relevant portion of the order dated 29.10.2021, impugned in this petition, on reproduction reads as under:-

"i=koyh ds ifj'khyu ls fofnr gS fd iwoZ esa v'kksd dqekj }kjk Hkh iz'uxr lEifRr ij viuk ekfydkuk vf/kdkj ds vk/kkj ij i{kdkj cuus gsrq izkFkZuk i= izLrqr fd;k x;k Fkk ftl ij fnukad 05-04-2021 dks foLr`r vkns'k ikfjr djrs gq, ;g Li"V fd;k x;k fd y?kqokn btjk; esa ekfydkuk vf/kdkjksa dh mn~?kks"k.kk ugh dh tk ldrh gSA btjk; dh dk;Zokgh esa dksbZ U;k;ky; fMdzh ls vfrfjDr dksbZ vuqrks"k iznku ugh dj ldrkA y?kqokn la[;k 05@2014 esa vkifRrdrkZ }kjk i{kdkj cuus ds fy, izkFkZuki= izLrqr fd;k x;k Fkk tks fd fujLr fd;k x;k rFkk ekuuh; mPp U;k;ky; }kjk Hkh izkFkhZ@r`rh; i{k i`Fkd okn lafLFkr djus gsrq funsZf'kr fd;k x;k ftlls ;g Li"V gS fd y?kqokn esa y?kqokn ls lEcfU/kr btjk; es LokfeRo dk fu/kkZj.k fd;s tkus dk dksbZ {ks=kf/kdkj y?kqokn U;k;ky; dks izkIr ugha gSA ekuuh; mPp U;k;ky; }kjk fe0fl0ua0 14839@2019 esa ikfjr vkns'k fnukafdr 24-05-2019 esa ;g vkns'k ikfjr fd;k x;k gS fd& "The Execution Case no.1 of 2017 for compliance of the Decree dated 29.3.2017 is pending disposal before the Executing Court. In case the petitioner claims any right over the property in question, bequeathed to him allegedly through registered Will Deed, he may file a suit for declaration for the same before the appropriate Court as the SCC Court having decided the suit in favour of the Landlady, cannot look into the question of title to the property. The SCC Suit is by way of summary proceedings and the question of title can only be decided by the competent Court in regular civil suit filed for the same." ekuuh; mPp U;k;ky; }kjk vius vkns'k esa bl btjk; okn dk mYys[k djrs gq, i`Fkd okn nkf[ky djrs gq, funsZf'kr fd;k x;k gS ftlls ;g Li"V gS fd y?kqokn btjk; es Hkh izkFkhZ ds LokfeRo ds fu/kkZj.k ls lEcfU/kr dksbZ fcUnq fopkj esa ugh fy;k tk ldrkA ekuuh; mPp U;k;ky; }kjk mDr vkns'k fnukad 24-05-2019 dks ikfjr fd;k x;k gSA izkFkhZ }kjk ;g izkFkZuk i= fnukad 09-08-2021 dks izLrqr fd;k x;kA ;g Hkh mYys[kuh; gS fd izkFkZuk i= 119 x@2 dk;eh okfjl ds fo:) fu.khZr_.kh }kjk nkf[ky dh x;h vkifRr esa Hkh fu.khZr _.kh r`rh; i{k dk Lokeh gksus dk fcUnq mBk;k Fkk ftl ij foLr`r vkns'k ikfjr fd;k tk pqdk gSA ;g Hkh mYys[kuh; gS fd izkFkhZ us vkns'k 21 fu;e 97 lh0ih0lh0 ds rgr viuh vkifRr nkf[ky dh gS vkSj mlh ds rgr og viuk lk{; izLrqr djuk pkgrk gSA vkns'k 21 fu;e 97 lh0ih0lh0 ;g izko/kkfur djrk gS fd tgka LFkkoj lEifRr ds dCts dh fMdzh ds /kkjd dk ;k fMdzh ds fu"iknu esa fodz; dh x;h ,slh fdlh lEifRr ds dzsrk dk ,slh lEifRr ij dCtk vfHkizkIr djus esa fdlh O;fDr }kjk izfrjks/k fd;k tkrk gS ;k mls ck/kk Mkyh tkrh gS] ogka og ,sls izfrjks/k ;k ck/kk dk ifjokn djrs gq, vkosnu U;k;ky; ls dj ldsxk rFkk vkns'k 21 fu;e 99 lh0ih0lh0 ;g izko/kkfur djrk gS fd ^^tgka fu.khZr_.kh ls fHkUu dksbZ O;fDr LFkkoj lEifRr ij dCts dh fMdzh ds /kkjd }kjk tgka ,slh lEifRr dk fMdzh ds fu"iknu esa fodz; fd;k x;k gS ogka] mlds dszrk }kjk ,slh lEifRr ij ls csdCtk dj fn;k x;k gks ogka og ,sls csdCtk fd;s tkus dk ifjokn djrs gq, U;k;ky; ls vkosnu dj ldsxkA^^ bl okn esa vHkh rd n[ky ds lEcU/k esa dksbZ dk;Zokgh ugh dh x;h gS vkSj u gh bl vk'k; dh dksbZ vk[;k i=koyh ij miyC/k gS fd okn xzLr lEifRr ij HkkSfrd dCtk fdldk gS vkSj u gh vkifRrdrkZ dks mlds fdlh dCts ls csn[ky fd;k x;k gSA ekuuhp mPp U;k;ky; }kjk ,l0lh0lh0 fjohtu fMQsfDVo ua0 64@2017 esa fnukad 24-08-2017 dks fuxjkuh fujLr djrs gq, fuxjkuhdrkZ fu.khZr_.kh e'k:Q dks 02 ekg dk le; iz'uxr nqdku [kkyh djus ds fy, iznku fd;k x;k Fkk ftldh iw.kZ tkudkjh gksus ds ckn Hkh fu.khZr_.kh }kjk vHkh bl vkns'k dk vuqikyu ugh fd;k x;k gSA vr% mijksDr ifjfLFkfr;ksa esa izkFkhZ dk izkFkZuk i= vkns'k 21 fu;e 97 lh0ih0lh0 bl Lrj ij Lohdkj fd;s tkus ;ksX; ugh gS rFkk btjk; dh dk;Zokgh LFkfxr fd;s tkus dk dksbZ vk/kkj ugh gSA rnkuqlkj izkFkZuk i= 140x@2 o 137x@2 fujLr fd;s tkus ;ksX; gSA vkns'k izkFkZuk i=&140x@2 o izkFkZuk i= 137x@2 fujLr fd;s tkrs gSA vkifRr rnkuqlkj fuLrkfjrA i=koyh okLrs [email protected] fnukad 03-11-2021 dks is'k gksA"

Learned Execution Court rejected the application of the petitioner for review of order dated 29.10.2021 vide order dated 11.11.2021 on the main ground to the effect that the order dated 29.10.2021 was passed after considering all the aspects of the case and there is no error in the order dated 29.10.2021.

Assailing the impugned orders, learned counsel for the petitioner submitted that the petitioner was not the party in the SCC Suit No. 5 of 2014, decreed on 29.03.2017, in relation to which Execution Case No. 1 of 2017 is pending, wherein, the application under Order 21 Rule 97/99/101 of CPC was preferred by the petitioner, which was rejected vide impugned order dated 29.10.2021, nor is a judgment debtor nor he has entered into the shoes of judgment debtor, nor he has been put in possession of property in suit by the judgment debtor and in fact the petitioner on the basis of a Will Deed dated 01.06.1970 is claiming his independent rights over the property in suit, as such, based upon the Will Deed, the petitioner preferred two applications, one for staying the execution proceedings and another under Order 21 Rule 97/99/101 CPC for rejecting the execution proceedings.

It is also contended that a third person claiming to be in possession of the property forming subject matter of decree in his own right can resist delivery of possession by filing an objection under Order 21 Rule 97 before the Execution Court itself and the Execution Court is under obligation to consider and decide the same on merits before proceeding further in the execution case. However, in the present case, the Execution Court erred in interpreting the relevant rules/provisions contained under Order 21 CPC and rejected the application/objection of the petitioner preferred by him under Order 21 Rule 97 being not maintainable. The prayer is to interfere in the impugned order(s) and remand the matter for adjudication on merits as per law.

In support of his submissions, learned counsel for the petitioner relied upon the judgments passed in the cases of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 & Sameer Singh v. Abdul Rab, (2015) 1 SCC 379 : (2015) 1 SCC (Civ) 509 : 2014 SCC OnLine SC 820.

Opposing the petition for the reliefs sought, Sri R.S. Pandey, learned Senior Advocate assisted by Sri Ankit Pande, learned counsel for the opposite party Nos. 2 to 4 submitted that the impugned order(s) dated 29.10.2021 and 11.11.2021 are not liable to be interfered with by this Court. Elaborating his arguments, learned Senior Advocate submitted that the Execution Court rightly held that the application/objection of the petitioner is not maintainable. The submission is that the application moved by the petitioner under Order 21 Rule 97 before the Execution Court was not maintainable as no complaint was raised by the decree holder i.e. opposite party No. 2 with regard to resistance/obstruction by an stranger. The proceedings under Rule 97 can be initiated on the application of the decree holder which is evident from the language of the Order 21 Rule 97 as also from the Form No. 40 provided under Appendix 'E' of CPC, which is the proforma of summons to be issued to the person who resists/obstructs the officer charged with execution of warrant of possession.

It is further submitted that as per Order 21 Rule 97 of CPC on an application preferred by the decree holder informing the Execution Court about the resistance/obstruction in execution of decree of possession, the concerned court would issue summons and thereafter, the person who resisted/obstructed the execution of decree may appear and file an objection claiming his right, title or interest in the said property and if objection is filed by the person concerned then in that event the Execution Court is bound to adjudicate the lis under Order 21 Rule 97 (2) read with Order 21 Rule 101 and not otherwise.

It is further submitted that the Execution Court vide order dated 29.10.2021 while rejecting the application moved by the petitioner under Order 21 Rule 97 has observed that no proceeding has been undertaken with regard to possession as yet and there is no such report with regard to the actual physical possession of person(s) on spot and it has also been observed that the applicant/petitioner has not been dispossessed as yet and therefore, provisions of Order 21 Rule 99 are not attracted and after making these observations, the Execution Court has held that the application under Order 21 Rule 97 preferred by the applicant/petitioner is not maintainable and accordingly, rejected the same. In view of the aforesaid facts and findings recorded by the Execution Court, no cause of action has accrued in favour of the petitioner for filing the present petition.

It is further submitted that the cause of action for stranger accrues as soon as the decree holder complains about obstruction/resistance by some stranger either by moving an application under Order 21 Rule 97 or Rule 35 of CPC and before such stage, the petitioner preferred the application in issue and being so the same was not maintainable. Thus, rightly rejected.

In support of submissions made and issues involved in the present case, learned Senior Advocate for the side opposite has relied upon the judgments placed before this Court by the counsel for the petitioner, indicated above, as also some other judgments, which are as under.

1. Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694, relevant paras of which are reproduced hereunder:-

"6. On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28-4-1991 the application moved by the respondent decree-holder on 6-5-1991 was necessarily to be one falling within the scope and ambit of Order 21, Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21, Rule 97 CPC could have been offered by any person. The words "any person" as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by Respondent 1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words "any person" as found in Order 21, Rule 97, sub-rule (1). Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21, Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order. We may in this connection also refer to the Schedule to the CPC, Appendix E which gives various forms for summons to be issued to parties in execution proceedings especially Form No. 40 which deals with "Summons to appear and answer charge of obstructing execution of decree (Order 21, Rule 97)". The said form reads as under:

"No. 40

Summons to Appear and Answer Charge of Obstructing Execution of Decree (Order 21, Rule 97) (Title) To, ...

Whereas ..., the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession:

You are hereby summoned to appear in this Court on the ... day of ... 19..., at ... a.m., to answer the said complaint.

Given under my hand and the seal of the Court, this ... day of 19....

Judge."

7. It is, therefore, clear that in an application under Order 21, Rule 97 moved by a decree-holder who complains about the resistance or obstruction offered by any person to the decree-holder in his attempt at obtaining possession of property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a lis arises between the decree-holder applicant under Order 21, Rule 97 on the one hand and such obstructionist or resisting party on the other, to whom summons have been issued by the Court as per Form No. 40. When such a lis arises, it has to be adjudicated upon as enjoined by Order 21, Rule 97, sub-rule (2). The procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order 21. This directly takes us to the consideration of Order 21, Rule 101 which reads 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."

Now it is obvious that such questions relating to the right, title and interest in the property arising between the parties to any proceedings under Order 21, Rule 97 or Rule 99 have to be adjudicated upon by following an identical gamut of procedure by the executing court. The said gamut of procedure is laid down by Order 21, Rule 98 which reads as under:

"98. Orders after adjudication.--(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) 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, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."

It is now time for us to consider Order 21, Rule 99 which reads as under:

"99. Dispossession by decree-holder or purchaser.--(1) Where any other person than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

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 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 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 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 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 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 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 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 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 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 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 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.

10. In this connection we may also profitably refer to a judgment of a Bench of three learned Judges of this Court in the case of Bhanwar Lal v. Satyanarain [(1995) 1 SCC 6] . In that case the Bench consisting of K. Ramaswamy, S.C. Agrawal and N. Venkatachala, JJ., had to consider a parallel fact-situation. One Satyanarain had obstructed to the delivery of possession of the suit immovable property which was sought to be obtained in execution by the appellant decree-holder. After such an obstruction was offered by Satyanarain the decree-holder moved an application under Order 21, Rule 35 for police assistance to remove the obstruction caused by Satyanarain. The executing court directed the decree-holder to make an application under Order 21, Rule 97. This Court took the view that the very application under Order 21, Rule 35, sub-rule (3) for police assistance for removal of obstruction caused by Satyanarain had to be treated to be an application under Order 21, Rule 97 and such an application was maintainable and could not be said to be beyond limitation. In this connection the following pertinent observations were made by this Court: (SCC pp. 8-9, paras 2-6) "2. The crux of the question is whether the application filed on 25-5-1979 by the appellant, though purported to be under Order 21, Rule 35(3) against Satyanarain, is convertible to one under Order 21, Rule 97. Order 21, Rule 35(3) provides that:

''35. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.'

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 per force bound by the decree. Admittedly, Satyanarain was not a judgment-debtor and that therefore, he is not bound by the decree 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 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.

4. Order 21, Rule 97 provides thus:

''97. Resistance or obstruction to possession of immovable property.--(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.'

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 97 CPC 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.

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) of 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."

11. In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that Respondent 1 decree-holder's application dated 6-5-1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order 21, Rule 97 CPC and had to be adjudicated upon as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 101 and Order 21, Rule 98. In this connection the Court had also to follow the procedure laid down by Order 21, Rule 105 which enjoins the executing court to which an application is made under any of the foregoing rules of the order to fix a date of hearing of the application. As the executing court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High Court in revision also committed the same error by taking the view that such an application was not maintainable. It is of course true as submitted by learned counsel for the decree-holder that in para 4 of the judgment under appeal the High Court has noted that there was some discrepancy about the khasra number. But these are passing observations. On the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by the objector was not maintainable and his only remedy was to move an application under Order 21, Rule 99 after handing over possession and consideration of objection to delivery of possession by a stranger to the decree at any earlier stage was premature. It must, therefore, be held that neither the executing court nor the High Court in revision had considered the objection of the appellant against execution on merits. Consequently the impugned judgment of the High Court as well as the order of the executing court in Civil Execution Case No. 25 of 1990 dated 15-2-1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Munger to re-decide the application of Respondent 1 decree-holder dated 6-5-1991 by treating it to be one under Order 21, Rule 97 for removal of obstruction of the appellant and after hearing the decree-holder as well as the appellant to adjudicate the claim of the appellant and to pass appropriate orders under Order 21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98 CPC as indicated in the earlier part of this judgment."

2. Silverline Forum (P) Ltd. v. Rajiv Trust, (1998) 3 SCC 723, relevant paras of which are quoted hereunder:-

"9. At the outset, we may observe that it is difficult to agree with the High Court 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 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.

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.

15. In Bhanwar Lal v. Satyanarain [(1995) 1 SCC 6] a three-Judge Bench has stated as under: (SCC p. 9, para 5) "A reading of Order 21 Rule 97 CPC 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."

16. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [(1997) 3 SCC 694] this Court, following the aforesaid decision, made the under-quoted observation: (SCC p. 699, para 6) "It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order 21 Rule 97 CPC could have been offered by any person. The words ''any person' as contemplated by Order 21 Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. ... Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only reissuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21 Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof had to be followed by the executing court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order."

3. Bhavnagar Transport Company v. Valmikbhai Himatlal Patel, 1999 SCC OnLine Guj 158 : AIR 2000 Guj 36 : (1999) 40 (3) GLR 2332 : (2000) 2 AP LJ (DNC) 39 : (2000) 3 ALT (DNC 6.3) 6 : (1999) 2 GLH 161 : (2000) 1 GCD 165 : (2000) 2 CCC 240 : (2000) 2 Civ LT 441 at page 40, relevant paras of which are quoted hereunder:-

"12. Mr. M.B. Gandhi has also placed reliance on the decision of the Supreme Court in the case of Bhanwarlal v. Satyanarain, reported in (1995) 1 SCC 6 : (AIR 1995 SC 358). Therein also, there was an obstruction to delivery of possession in pursuance of an execution of the decree, the decree holder had made application under Rule 35(3) instead of Rule 97. The Supreme Court observed that the application made must be treated as one of under Rule 97 and the application was not time barred. In the above mentioned decision, in paras 3 and 5, the Supreme Court has observed that the decree holder gets a right under Rule 97 to make an application against a third party to have his obstruction removed and an enquiry thereon could be done. Hence, this decision also will not help the appellant.

13. From the above discussion, it becomes crystal clear that when the holder of a decree for possession or the purchaser of any such property sold in execution of the decree comes with a warrant for possession, the appropriate remedy of a person other than the judgment debtor is to resist or obstruct the order of a decree for possession. The third party has to obstruct and resist the process of execution with regard to the warrant for possession. The warrant for possession is obstructed and resisted, then decree holder or the purchaser, may complain before the executing Court by filing an application. It may be remembered that Decree-holder in those circumstances may not file any application under R. 97(1) O. 21 of CPC and may proceed further with the execution because the provision is apparently permissive one. But if such an application is filed by decree-holder, executing Court thereupon may issue notice to the obstructor or third party. Third party then has right to file his objections and in these circumstances executing Court is obliged to adjudicate upon the application under sub-rule (2) of R. 97 of O. 21 of the CPC. The scheme of Order 21 nowhere by whisper even gives any right to any third party obstructor to approach the executing Court directly and even if decree holder chooses not to file an application for removal of the obstruction, insist upon the executing Court to adjudicate his (third party objector) objections regarding the warrant for possession. To give this meaning to R. 97 of Order 21 of the CPC would mean to add something in the provisions, which was never intended to be made by the legislature in their wisdom and, therefore, a third party obstructor cannot have any right to say that since he has filed an application to remove obstructions under R. 97, O. 21 and that executing Court is obliged to adjudicate upon his application."

4. Sameer Singh v. Abdul Rab, (2015) 1 SCC 379 : (2015) 1 SCC (Civ) 509 : 2014 SCC OnLine SC 820, relevant paras of which are quoted hereunder:-

"14. To appreciate the submissions raised at the Bar, it is necessary to appreciate the whole gamut of provisions contained in Order 21 Rules 97 to 103 CPC and the fundamental objects behind the same.

15. Rule 97 deals with resistance or obstruction to possession by the holder of a decree for possession or the purchaser of any such property sold in execution of a decree. It empowers such a person to file an application to the court complaining of such resistance or obstruction and requires the court under sub-rule (2) to adjudicate upon the application in accordance with the provisions provided therein.

16. Rule 99 deals with dispossession by decree-holder or purchaser. It stipulates that:

"99. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession."

The Court is obliged to adjudicate such an application. Thus this Rule, as is manifest, includes any person other than the judgment-debtor.

17. Rule 101 deals with the questions to be determined. It provides 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 an application and not by a separate suit and for the said purpose, the executing court has been conferred the jurisdiction to decide the same.

18. Rule 100 deals with orders to be passed upon application complaining of dispossession. It is apt to reproduce the said Rule--

"100. Order to be passed upon application complaining of dispossession.--Upon the determination of the questions referred in Rule 101, the Court shall, in accordance with such determination--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such order as, in the circumstances of the case, it may deem fit."

19. Rule 98 deals with orders after adjudication. Sub-rule (1) provides that upon the determination of questions referred to in Rule 101, the court in accordance with determination and subject to provisions of sub-rule (2) therein make an order allowing the application and directing that the applicant be put in possession of the property or dismissing the application or pass such other order, as in the circumstances of the case it may deem fit. As far as sub-rule (2) is concerned, the same is not necessary to be taken note of for the purposes of the present case. Rule 103 which is significant reads as follows:

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

20. The submission of the learned counsel for the appellants is that if the scheme underlying the said Rules is appositely appreciated, it is clear as crystal that the legislature in order to avoid multiplicity of proceedings has empowered the executing court to conduct necessary enquiry and adjudicate by permitting the parties to adduce evidence, both oral and documentary, and to determine the right, title and interest of the parties and, therefore, such an order has been given the status of a decree. As has been put forth by him, a proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the adjudication is similar to that of a suit and when in the case at hand, the court has declined to embark upon any enquiry by calling for reply, recording evidence and appropriately adjudicating the controversy, the order passed cannot be regarded under Order 21 Rule 103 as a decree. In this context, the authorities that have been commended to us need to be carefully noticed.

21. In Noorduddin v. K.L. Anand [(1995) 1 SCC 242] , the executing court had rejected the application of the appellant therein on the ground that the High Court had already adjudicated the lis. Analysing the language employed in Rules 97, 98 and 100 to 104, the Court held: (SCC p. 249, para 8) "8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding the Civil Procedure Code (Amendment) Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution."

Elucidating further, the Court opined that adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice and, therefore, adjudication under Order 21 Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.

22. In Babulal [Babulal v. Raj Kumar, (1996) 3 SCC 154] , the appellant apprehending that it would be dispossessed in an execution proceeding had filed an application based on possessory title and obtained interim injunction. He had also filed an application stating, inter alia, that he should not be dispossessed. His objection was overruled by the executing court holding that since he had not been dispossessed, an application under Order 21 Rule 98 was not maintainable. The said view was affirmed by the High Court in civil revision petition. The Court while interpreting Order 21 Rules 98 to 102 referred to the decision in Bhanwar Lal v. Satyanarain [(1995) 1 SCC 6] and opined that it is clear that an adjudication is required to be conducted under Order 21 Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The Court ruled that the order is treated as a decree under Order 21 Rule 103 and it is subject to an appeal. It has been observed in the said case that prior to 1976, the order was subject to suit, but under the amended Code, right of suit under Order 21 Rule 63 of old Code has been taken away, and the determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98 which is an order and is a decree under Order 21 Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. The Court further opined that the procedure prescribed is a complete code in itself and, therefore, the executing court is required to determine the question.

23. In Ghasi Ram [Ghasi Ram v. Chait Ram Saini, (1998) 6 SCC 200] while making a distinction between the provisions prior to the amendment brought in 1976 in CPC and the situation after the amendment, a two-Judge Bench observed thus: (SCC p. 205, para 7) "7. ... the position has changed after amendment of the Code of Civil Procedure by the Amendment Act of 1976. Now, under the amended provisions, all questions, including right, title, interests in the property arising between the parties to the proceedings under Rule 97, have to be adjudicated by the executing court itself and not left to be decided by way of a fresh suit."

24. In S. Rajeswari [S. Rajeswari v. S.N. Kulasekaran, (2006) 4 SCC 412] , the appellant was one of the persons who had obstructed the execution of a decree obtained by the first respondent therein and had filed an application under Section 151 CPC which was rejected by the executing court on the ground that it was not maintainable. Being grieved by the said order he preferred a revision petition which was allowed by the High Court. The Court treated the application preferred under Section 151 CPC to be one under Order 21 Rule 97 because the executing court proceeded to record evidence and thereupon adjudicated the matter. The evidence of the decree-holder was considered and a conclusion was arrived at that the identity of plot in question had not been established and thereby the plaintiff was disabled from executing the decree for possession of the land. A contention was raised before this Court that the High Court had erred in entertaining a revision petition under Section 115 CPC, for the order was a decree under Order 21 Rule 103 of CPC and hence, an appeal lay. The said contention was accepted by this Court.

25. At this juncture, we may refer with profit to the pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [(1997) 3 SCC 694 : AIR 1997 SC 856] , wherein a two-Judge Bench scanning the anatomy of the Rules came to hold that: (SCC pp. 702-03, para 9) "9. ... 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."

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. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675]."

5. Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 : (2021) 3 SCC (Civ) 569 : 2021 SCC OnLine SC 341, relevant paras of which are reproduced hereunder:-

"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 1 CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

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 151 CPC, demand security to ensure satisfaction of any decree.

42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

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 60 CPC the term "... in name of the judgment-debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

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.

43. We further direct all the High Courts to reconsider and update all the Rules relating to execution of decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 CPC, within one year of the date of this order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of information technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable."

Considered the submissions of the counsel for the parties and perused the record.

Submission of learned counsel for the petitioner, in nutshell, is that the Execution Court failed to exercise the jurisdiction vested to it in not adjudicating/deciding the dispute raised by the petitioner when it had brought to the notice of the Execution Court that the petitioner had resisted the execution of decree and therefore, it was incumbent upon the Execution Court to have proceeded to decide the dispute raised by the petitioner in accordance with the procedure prescribed under Rule 101 of Order 21 CPC which enjoins that on question including the question relating to right, title or interest to the property arising between the parties to a proceeding on an application under Rule 97 or 99 shall be determined by the Court dealing with the application and not by a separate suit.

In brief, the submission of learned counsel for the opposite party Nos. 2 to 4, Sri Pandey, Senior Advocate, is that a bare reading of Order 21 Rule 97 CPC clearly indicates that it is only the decree holder who is entitled to make an application to Execution Court informing the Court about the obstruction/resistance made by a person to the execution of decree of eviction or warrant for delivery of possession of the property in question and no stranger or even a person claiming through judgment debtor is entitled to make such application and therefore, the impugned orders are justified.

In view of the aforesaid, the issue for determination in the present case is that "whether in absence of an application of the decree holder before the Execution Court complaining/informing to the Court about the obstruction/resistance made by a person in obtaining the possession of the property in decree, the application by a person claiming himself to be in possession of the property in issue/dispute under Order 21 Rule 97 CPC would be maintainable?" In other words, as to "whether a person in possession of the property claiming independent right as an owner in possession, not a party to a decree under execution, could resist such decree by seeking adjudication of his objection under Order 21 Rule 97 CPC?"

The relevant judgments of the Hon'ble Supreme Court on the issue involved in the present case, to the view of this Court, are Brahmdeo Chaudhary (supra), Silverline Forum (P) Ltd. (supra), Sameer Singh (supra), Shreenath and another v. Rajesh and others reported in (1998) 4 SCC 543 and Ashan Devi and another v. Phulwasi Devi and others reported in (2003) 12 SCC 219 and Har Vilas v. Mahendra Nath and others reported in (2011) 15 SCC 377.

It would be appropriate to refer here that similar controversy to that in the present case was before the Full Bench of the M.P. High Court in the case of Usha Jain v. Manmohan Bajaj, AIR 1980 MP 146 : 1980 MPLJ 623 and Full Bench observed as under:-

"The executing court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder/auction-purchaser under Order 21 Rule 97. This Rule is merely permissive and not mandatory so that the decree-holder/auction-purchaser need not resort to it against his will and may even apply for a fresh warrant under Order 21 Rule 35 CPC. Executing court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. If the executing court were to stay its hands till investigation into a third party's claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claims.

No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21 CPC when the decree-holder or the auction-purchaser applies for obtaining possession. Subsequently when the decree-holder or auction-purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under Rule 97 but that provision is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser to apply instead for a fresh warrant of possession. An enquiry at the instance of a third party in possession is contemplated only under Order 21 Rule 100 after he was dispossessed and not before it.

The omission by the executing court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated prior to his dispossession, his only remedy then being under Order 21 Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession."

The above quoted observations of the Full Bench of M.P. High Court were taken note of by the Hon'ble Supreme Court in the case of Shreenath (supra) and in para 18 of the judgment of the Hon'ble Supreme Court after considering the judgments passed by it including in the case of Brahmdeo Chaudhary (supra) held that:-

"In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid Full Bench of the M.P. High Court in the case of Usha Jain v. Manmohan Bajaj [AIR 1980 MP 146 : 1980 MPLJ 623] cannot be held to be good law."

In the case of Shreenath (supra), the Hon'ble Supreme Court considered the relevant provisions i.e. Rule(s) 35, 97, 98, 99 and 100 of Order 21 of CPC and the judgments relevant to the same and thereafter overruled the judgment of the Full Bench of M.P. High Court as would appear from the following paras:-

"8. In order to appreciate the controversy, Order 21 Rule 35, Order 21 Rule 36 and Order 21 Rule 97 are quoted hereunder:

"35. Decree for immovable property.--(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.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

36. Decree for delivery for immovable property when in occupancy of tenant.--Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the 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.

97. Resistance or obstruction to possession of immovable property.--(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1) the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

9. This sub-clause (2) was substituted by the Amending Act, 1976. Earlier sub-clause (2) was:

"97. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same."

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 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 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.

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 the 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 the 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.

12. Prior to the 1976 Amending Act, provisions under Order 21 Rules 97 to 101 and 103 were different which are quoted hereunder:

"97. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Where 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, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation to be detained in the civil prison for a term which may extend to thirty days.

99. Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make an order dismissing the application.

100. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.(2) The court shall fix a day investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Where the court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

***

103. Any party not being a judgment-debtor against whom an order is made under Rule 98 or Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property but, subject to the result of such suit (if any), the order shall be conclusive."

13. So far sub-clause (1) of Rule 97 the provision is the same but after the 1976 Amendment all disputes relating to the property made under Rules 97 and 99 are to be adjudicated under Rule 101, while under unamended provision under sub-clause (2) of Rule 97, the executing court issues summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the court puts back a decree-holder in possession where the court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the court has to dismiss the decree-holder's application. Thus even prior to 1976, right of any person claiming right on his own or as a tenant, not party to the suit, such person's right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property on the own, if resists delivery of possession to the decree-holder, the dispute and his claim has to be decided after the 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he was to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as all disputes are to be settled by the executing court itself finally under Rule 101.

14. We find that both either under the old law or the present law, the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself.

15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99, the new law covers cases where persons other than the judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the executing court. But this will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such a person can object and get adjudication when he is sought to be dispossessed by the decree-holder. For all the aforesaid reasons, we do not find the Full Bench in Usha Jain [AIR 1980 MP 146 : 1980 MPLJ 623] correctly decided the law.

16. In Noorduddin v. Dr K.L. Anand [(1995) 1 SCC 242] it is held : (SCC p. 249, para 8) "8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution."

17. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [(1997) 3 SCC 694] the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decree-holder can or cannot request the executing court to adjudicate his claim without being insisted upon that first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9 : (SCC p. 702) "9. 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 is 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 the case of Ashan Devi (supra), the Hon'ble Supreme Court observed as under:-

"16. It is necessary at this stage to take into account the objects of drastic amendments introduced to the Code of Civil Procedure by Act 104 of 1976. This Court in the case of Shreenath [(1998) 4 SCC 543] has compared the unamended provisions of the Code in Order 21 and the provisions introduced after amendment. It is noticed that earlier under the Code, the third party "dispossessed" in the execution of the decree was required to institute an independent suit for adjudication of its right and claims. In order to shorten the litigations concerning same properties between same and third parties, claims of third parties to the property in execution are now required to be determined by the executing court itself in accordance with provisions under Order 21 Rule 101 with right of appeal to the higher court against such adjudication treating it to be a "decree" under Order 21 Rule 103 of the Code. On the amendments introduced to the Code by the Amendment Act of 1976, this Court observed thus: (SCC p. 545, para 3) "3. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed."

17. In case of Brahmdeo Chaudhary [(1997) 3 SCC 694] the provisions of Order 21 Rule 97 of the Code, as amended, came up for construction. They read thus:

"97. Resistance or obstruction to possession of immovable property.--(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

18. The question raised in that case was whether the objector cannot claim adjudication of his claim being third party to the decree under execution until he is "actually dispossessed". The argument advanced was that application under Order 21 Rule 97 at the instance of the objector is not maintainable to the executing court because such application complaining "resistance and obstruction" by the third party could be filed only by the decree-holder under Order 21 Rule 97 of the Code. It was argued that the remedy of the third party to the executing court is only after he suffers dispossession in execution of the decree. Thereafter, he has to complain under Order 21 Rule 99 and seek adjudication of his claims and rights. This Court negatived that contention and observed thus: (SCC p. 703, para 9) "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 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 grievance once and for all finally resolved in execution proceedings themselves."

(emphasis supplied)

19. The case of Brahmdeo Chaudhary [(1997) 3 SCC 694] was relied on by this Court in the case of Silverline Forum (P) Ltd. [(1998) 3 SCC 723 : AIR 1998 SC 1754] It was held that the remedy under Order 21 Rule 99 in execution is available to a party only on his dispossession but a third party who is resisting or obstructing the execution of decree can also seek adjudication of his claims and rights by making application under Order 21 Rule 97 of the Code.

20. In the case of Tanzeem-E-Sufia [(2002) 7 SCC 50] the third party who was in possession of a part of premises had filed a separate suit for declaration of its right and title. In execution proceedings, the decree-holder in respect of the entire decretal property, complained of obstruction and resistance to the execution by the third party. Even on these facts, this Court held that the application of the decree-holder required adjudication under Order 21 Rule 97 of the Code and the application of the third party also necessitated adjudication of its rights under Order 21 Rule 99 of the Code irrespective of the fact that for part of the property, the third party had filed an independent suit for declaration of its title to the suit property.

21. The abovementioned decided cases of this Court clearly indicate that the provisions of Order 21 Rules 97 and 99 have been widely and liberally construed to 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 parties to file independent suits.

22. The word "dispossessed" as used in Order 21 Rule 99 of the Code has been narrowly construed to be an ouster from actual and physical possession of the property by several High Courts. See Pera Naidu v. Soundaravalli Ammal [AIR 1954 Mad 516 : (1954) 1 MLJ 179] AIR at p. 519; Rajendra N. Das v. Minatunnisa Bibi [ (1966) 32 Cut LT 972 : ILR 1966 Cut 611] and Emerciano Leonardo Dias (Dr.) v. Ganexama B. Naique Vaingancar [AIR 1978 Goa 48] .

23.Salmond on Jurisprudence explains that the word "possession" is a word of "open texture". Its legal meaning has to be ascertained from the context. The property involved in the present case is open vacant land. Such property is possessed by a person who has control over the same. This "control" over the property means "power to exclude all others". The test then for determining whether a man is in possession of anything is whether he is in "general control" of it -- maybe, that he is not in actual and physical possession or using the same.

24. The objectors have laid evidence before the executing court to show that after obtaining by recitals in the sale deeds delivery of possession of the property, the names of purchasers were also mutated in the municipal records. Merely because at the time of execution of the decree through Court Nazir, the objectors were not physically present on the property, it cannot be said that the delivery of possession to the decree-holder by the court does not amount to the objectors' legal ouster or "dispossession". The word "possession", therefore, has to be given contextual meaning on facts of a particular case and the nature of the property involved.

25. In interpreting the provisions of Order 21 Rule 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The legislature purposely amended provisions in Order 21 to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram [(1985) 1 SCC 61] .

26. The High Court in the impugned judgment dated 23-4-2001 has construed the word "dispossessed" under Order 21 Rule 99 of the Code to mean actual and physical dispossession. The reasoning adopted is that if the expression "dispossessed" is thus not narrowly construed, "anybody apprehensive of dispossession or anybody claiming right although not actually dispossessed can come within the purview of Rule 99 and there would be floodgate and a decree-holder who obtained a decree by due process of law would be frustrated in not getting the fruit of the decree".

27. There is fallacy in the above reasoning. As has been held by this Court in the case of Brahmdeo Chaudhary [(1997) 3 SCC 694] a third party resisting or obstructing the execution of the decree can also seek adjudication of his rights under Order 21 Rule 97 in the same way as the decree-holder. If that be so, it seems illogical that the third party which complains of actual dispossession because of the delivery of possession in execution to the decree-holder should not be allowed to claim adjudication of his rights through the executing court. An interpretation of the provision which promotes or fulfils the object of the amended provisions of the Code of curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under Order 21 Rule 99 of the Code. From the trend and ratio of decisions of this Court surveyed above, if the objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under Order 21 Rule 97. On the same legal position and reasoning even though the objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree-holder, lost their right and control over the land to put it to their use, they will have to be treated to have been "dispossessed" within the meaning of Order 21 Rule 99 of the Code. Such interpretation would fulfil aim and object of the amended provisions of the Code by allowing adjudication of disputes of title between the decree-holder and the third party in the executing court itself without relegating them to an independent litigation.

28. In view of the discussion aforesaid, in our opinion, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the objectors under Order 21 Rule 99 of the Code and decided the other issues on merits of their claims arising between the decree-holder and the objectors.

In the case of Har Vilas (supra), the Hon'ble Supreme Court has observed as under:-

"4. The Full Bench decision of the Madhya Pradesh High Court in Usha Jain case [AIR 1980 MP 146 : 1980 MPLJ 429 (FB)] has been overruled by this Court in Shreenath v. Rajesh [(1998) 4 SCC 543] . It has been held that a third person claiming to be in possession of the property forming the subject-matter of decree in his own right can resist delivery of possession even by filing an objection under Order 21 Rule 97 of the Code of Civil Procedure in the executing court itself and if that is done, the objection shall have to be determined by the executing court itself. The provisions of Rule 100 (of the old CPC, the equivalent provision whereof is Rule 99 in the new CPC) will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession. In view of the decision of this Court in the case of Shreenath [(1998) 4 SCC 543] the impugned view of the High Court based on the Full Bench decision of the High Court of Madhya Pradesh in the case of Usha Jain [AIR 1980 MP 146 : 1980 MPLJ 429 (FB)] cannot be sustained."

In view of the law declared by the Apex Court it is settled that whenever an obstruction or resistance is made by any person whomsoever in the execution of decree by the decree-holder, the Execution Court is under obligation to adjudicate the right, title or interest of the obstructionist/resister in the manner prescribed under Rules 98 to 103 of Order 21 CPC which is a complete Code in itself and it provides for the concerned parties to have their grievances once and for all finally resolved in the execution proceedings.

It would not be out of place to refer the relevant portion of the judgment passed by the High Court of Andhra Pradesh in the case of Tahera Sayeed v. M. Shanmugam, AIR 1987 AP 206:-

"The faith of the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole."

"When the third party not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as Caveat to the decree-holder or purchaser or a person claiming through him that "look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree", and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with ubi jus ebi remedium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly I hold that the application under Order 21, Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21, Rule 97 and it is maintainable.

Even otherwise, the inherent power under Section 151 of the Code also successfully be invoked by the petitioner. The inherent power is in addition to the power which the Court is already possessed of. Procedure is not a vested right. It is to be tailored (to?) attune to the ends of justice. Inherent power is intended to be exercised to prevent miscarriage of justice, or abuse of the process of the Court. Order 21, Rule 97, if interpreted strictly, could be available only when the decree-holder or purchaser chooses to make avail of. Instead, if he persists in execution under Order 21, Rule 35 against a third party not bound by the decree, on issue of Warrant in Form XI of Appendix E of the Schedule to the Code, the bailiff is bound to execute the decree and deliver physical possession under relevant clauses (1) to (3) thereof; if necessary by assault or by use of criminal force. Thereby the procedure aids abuse of the process enabling the decree-holder or the purchaser to over-reach his object to saddle himself in possession of the immovable property depriving the person in possession but not bound by the decree of his valuable right to property.

Procedure is but the machinery of law-- the channel and means whereby law is administered and justice reached. All procedure, therefore, is an armour to effectuate the right to property. Procedural safeguard is an ingrained facet of fair play in action to subserve the legal right and not to extinguish it. The highest duty of a Court is to take care that its act does not injure a suitor. Thus, in a given situation, as stated earlier, if inherent power is not exercised by the Court to modulate its procedure, it would facilitate heaping injustice upon a rightful person."

In view of the decision in Tahera's case (supra) it is evident that the petitioner was fully justified in apprising the Court and the decree-holder that the petitioner is not bound by the decree and the decree in question cannot be executed against him and once this was done, there was no other option before the Execution Court except to decide/adjudicate the question(s) related to right, title or interest in regard to the property in issue as per Order 21 Rule 101.

From the above referred judgments, it is evident that not only the decree-holder or a person dispossessed in the execution of the decree has a right to make an application to the Execution Court but a person who is apprehending dispossession can also make an application to the Court and when such an application is brought before the Court, the said Court shall be obliged to make an enquiry into the allegations and pass an order after making the enquiry into the right, title or interest of the party.

This Court, in the judgment passed in the case of Jahid Khan and another v. Suresh Chandra Jain and others reported in (2013) SCC Online All 13354, after considering the judgments passed in the case of Brahmadev Chaudhary (supra) and Shreenath (supra), also took the view similar to the view taken above, as appears from the following observations:-

"14. In view of the above decisions of the Supreme Court the law appears to be settled that once a complaint resisting or obstructing a decree execution of a decree of possession of immovable property is made by a person claiming to be in possession, his rights thereof are liable to be adjudicated first before he is dis-possessed and he should not wait for loosing possession to the decree holder and then to make an application under Rule 99 of Order XXI, C.P.C."

Thus, in view of the above, this Court is of the considered opinion that the application filed by the resistor/obstructor under Order 21 Rule 97 claiming himself to be in possession of the property in issue/dispute, would be maintainable and for this very reason, the same should be decreed on merits even if no application is filed by the decree holder to the Court complaining/informing regarding resistance/obstruction in obtaining the possession of the property in decree.

The question(s) framed above are answered accordingly.

In view of the above, it was incumbent upon the Execution Court to decide/adjudicate the application/objection of the petitioner preferred under Order 21 Rule 97/99/101 CPC to find out the nature of the rights of the petitioner over the disputed property. Thus, the Execution Court committed error in rejecting the application/objection of the petitioner under Rule 97/99/101 of Order 21 CPC as not maintainable.

For the all reasons aforesaid, the present petition is allowed and the impugned orders dated 29.10.2021 and 11.11.2021 passed by the Execution Court in Execution Case No. 1 of 2017 are set-aside and the matter is remanded back to Execution Court for afresh decision of the application/objection of the petitioner under Order 21 Rule 97/99/101 CPC in accordance with law as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order, if possible and if there is no other legal impediment in this regard. In concluding the proceedings, the court concerned shall avoid unnecessary adjournments to the parties.

In above terms, the petition is allowed.

Order Date :- 04.02.2022/Arun/-

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