Karnataka High Court
Bassappa S/O Rangappa vs V Sambireddy S/O V Anjireddy on 13 December, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-K:9663
WP No. 200085 of 2023
IN THE HIGH COURT OF KARNATAKA,
R
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 200085 OF 2023 (GM-CPC)
BETWEEN:
BASSAPPA
S/O RANGAPPA
AGE 57 YEARS
OCC. AGRICULTURE,
R/O HANUMANAGAR CAMP, HOSALLI (EJ),
TQ. SINDHANUR DIST RAICHUR
...PETITIONER
(BY SRI. MAHANTESH PATIL., ADVOCATE)
AND:
1. V SAMBIREDDY
Digitally signed S/O V ANJIREDDY
by SHWETHA AGE 66 YEARS,
RAGHAVENDRA OCC. AGRICULTURE,
Location: HIGH R/O HANUMANAGAR CAMP, TQ.
COURT OF
KARNATAKA SINDHANUR,
DIST RAICHUR 584101
2. V. SHIVASHANKAR REDDY
S/O V VEERAREDDY
AGE 65 YEARS
OCC. AGRICULTURE,
R/O HANUMANAGAR CAMP, TQ.
SINDHANUR,
DIST RAICHUR
NOW RESIDING AT GEETA CAMP
TQ. SINDHANUR 584101
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NC: 2024:KHC-K:9663
WP No. 200085 of 2023
... RESPONDENTS
(BY SRI. SHIVAKUMAR KALLOR., ADVOCATE FOR R1; V/O DATED 26.7.2024 NOTICE TO R2 IS D/W) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 05.11.2022 VIDE ANNEXURE-J PASSED BY THE LEARNED PRL. CIVIL JUDGE & JMFC SINDHANUR IN E.P.NO.32/2020, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 26.09.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ CAV ORDER (PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioner is before this Court seeking for the following reliefs:
1.1. Set aside the order dated 05.11.2022 vide Annexure-J passed by the learned Principal Civil Judge and JMFC Court, Sindhanur in E.P.No.32/2020, in the interest of justice and equity.
1.2. Pass such other orders or directions as this Hon'ble Court deems fit just and proper under the facts and circumstances of the case and allow this writ petition, in the interest of justice.
2. The respondent No.3 had filed a suit in O.S.No.89/2022 which came to be decreed and -3- NC: 2024:KHC-K:9663 WP No. 200085 of 2023 confirmed in R.A.No.1/2008 and RSA No.70/2011 in furtherance of which, Execution Petition No.32/2022 had been filed against respondent No.2 seeking vacant possession of the suit schedule property.
3. A possession warrant having been issued on 21.03.2022, the Court bailiff sought to execute the same on 14.04.2022, the petitioner objected to the said execution of the decree and filed a suit in O.S.No.9/2022 seeking for an injunction restraining the respondents from interfering with his possession.
The said suit came to be transferred to the Ist Additional Civil Judge and JMFC Court at Sindhanur, and renumbered as O.S.No.258/2022, an order of ad interim injunction came to be granted.
4. The petitioner also filed an application under Order XXI Rule 97 read with Section 47 of the Code of Civil Procedure, in the aforesaid Execution Petition No.32/2022, which was contested by the decree- holder. By the impugned order dated 05.11.2022, the said application came to be rejected. It is -4- NC: 2024:KHC-K:9663 WP No. 200085 of 2023 challenging the said order, the petitioner is before this Court seeking for the aforesaid reliefs.
5. The submission of Sri. Mahantesh Patil, learned counsel for the petitioner is that:
5.1. No enquiry was held on the application filed by the petitioner under Order XXI Rule 97 of the Code of Civil Procedure.
5.2. The Execution Court could not have summarily disposed of the said application on the basis of the pleadings and arguments advanced.
5.3. There ought to have been an enquiry and a trial in terms of Rule 101 of Order XXI of the Code of Civil Procedure and in regard thereto, he submits that, an enquiry was required to be held. No enquiry having been held, the order passed by the execution Court is not sustainable. In this regard, he relies upon the following decisions:-5-
NC: 2024:KHC-K:9663 WP No. 200085 of 2023 5.4. The decision of Hon'ble Apex Court in Bangalore Development Authority v. N. Nanjappa and another1, more particularly para nos. 5.1 and 6 thereof, which are reproduced hereunder for easy reference:
5.1 Therefore, as per Order XXI Rule 101 CPC, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that a separate suit is not required to be filed. Order XXI Rule 97 is with respect to resistance/obstruction to possession of immovable property.
6. In the instant case, it is the specific case of the appellant - BDA that pursuant to the acquisition of the land in question, the BDA has become the absolute owner and the said land is vested in the BDA and possession was already taken over by the BDA and the land was handed over to the Engineering Section. Therefore, the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings. Though, in the present case, a substantive suit being O.S. No. 2070/2013 filed by the BDA against the decree holder and the judgment debtor to declare the lease agreement as null and void is pending, irrespective of the same, considering Order XXI Rule 101 CPC, the question relating to right, title 1 CA Nos. 6996-6997 of 2021 | 2021 INSC 827 -6- NC: 2024:KHC-K:9663 WP No. 200085 of 2023 or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.
5.5. By relying on in Nanjappa's case, Sri Mahantesh Patil submits that all questions relating to right, title or interest in the property arising between the parties in a proceeding under Order 21 Rule 97 or 99 would have to be determined by the Court dealing with the said application and a separate suit was not required to be filed.
5.6. The decision of Hon'ble Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal2, more particularly para nos. 5 and 7 thereof, which are reproduced hereunder for easy reference:
5. A mere look at the aforesaid provision shows that a warrant for possession can be straightaway sought against persons occupying immovable property which is the subject-matter of decree by the decree-holder provided such persons who are 2 AIR 1997 SC 856 | 1997 INSC 49 -7- NC: 2024:KHC-K:9663 WP No. 200085 of 2023 occupying the suit property are judgment-debtors or persons claiming through the former. We are concerned with the situation in which the appellant resisted the execution proceedings on the ground that he was a stranger to the decree and claimed an independent interest in the suit immovable property possession of which was decreed in favour of Respondent 1 decree-holder. The Nazir in his report dated 28-4-1991 has noted that the warrant for possession could not be executed on the spot on account of the resistance and obstruction offered by the appellant, amongst others. Once that report was received by the executing court Respondent 1 decree-holder naturally became alive to the fact of such resistance on the spot by the appellant, amongst others. Thereafter when he moved the application on 6-5-1991 for issuance of fresh warrant for possession with the help of police force though the application purported to be under Order 21, Rule 35 it would strictly not fall within that provision as the decree-holder wanted to bypass the obstruction and resistance offered by a stranger to the decree, namely, the appellant who was not claiming any right, title or interest through the judgment-debtor. Whether his claim was right or wrong on merits is a different matter. But once such resistance was offered by him the proper procedure which was required to be followed by Respondent 1 decree-holder was the one contemplated by Order 21, Rule 97 CPC. The said provision reads as under:
"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."
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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 -9- NC: 2024:KHC-K:9663 WP No. 200085 of 2023 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."
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 5.7. By relying on Brahmadeo Chaudhary's case, Sri.Mahantesh Patil submits that Order 21 is a complete code and any application under order 21 Rule 97 or 99 would have to be decided on merits. Once resistance is offered by a stranger, the remedy available for the decree- holder is by filing an application under order 21 Rule 97. The stranger cannot be forced to file an application under order 21 Rule 99. 5.8. He further submits that a third party obstructor could on his own file an application under order 21 Rule 99 even before loss of possession which would have to be considered by the execution court. Thus, he submits that petitioner could file an application under Order 21 Rule 99 though the petitioner is in possession and is yet to be dispossessed. The rights asserted by the petitioner would have to
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 be decided in terms of order 21, Rule 101 of CPC.
5.9. The decision of the Hon'ble Apex Court in Jogendra Kaur v. Kali Prasad3, more particularly para no.16 thereof, which is reproduced hereunder for easy reference:
16. As noticed above, the right of appeal is conferred by the very provision of Order 21, Rule 103 C.P.C. itself which says that the order passed on adjudication shall have the same force and subject to the same conditions as to appeal as if it were a decree. In my opinion, therefore, the ordinary rules of Civil Procedure will apply and the aggrieved party shall have further right of appeal, viz. Second Appeal.
5.10. By relying on Jogender Kaur's case, the submission of Sri.Mahantesh Patil is that any order passed under order 21 Rule 97 or 99 is treated to be a decree and in terms of order 21 Rule 103, a Regular appeal/Regular First Appeal would have to be filed to challenge such a decree. Thus, he submits that before passing the decree, due enquiry as provided under The 3 AIR 2003 JHAR 67
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Civil Procedure Code by examining witnesses, cross-examining the witnesses, and after arguments are heard, an order under 101, order 21 Rule 101 could be passed. 5.11. The decision of the Hon'ble Apex Court in Shreenath & Anr. v. Rajesh and Ors.4 more particularly para nos. 13 & 15 thereof, which are reproduced hereunder for easy reference:
13. 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 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 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 4 AIR 1998 SC 1827 | 1998 INSC 176
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 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 Smt. Usha jain (supra) correctly decided the law.
15 In Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Another (1997) (3) SCC 694), the question raised was whether a stranger occuping 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 handover the possession and then move an application under Order 21, Rule 97. It is held in para 9 :-
"Para 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 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.. ..............."
5.12. By relying on Shreenath's case Sri.Mahantesh Patil submits that a third party can file an application under Order 21 Rule 97 prior to dispossession in order to get his rights
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 adjudicated and in the event of him being dispossessed, application would have to be filed under order 21 Rule 99. Thus, he submits that the third party has an option of either approaching the execution court either under Order 21 Rule 97 or under Order 21 Rule 99. 5.13. The decision of this Court in Paramound Industries vs. C.M. Malliga5, more particularly para nos. 12, 25 & 26 thereof, which are reproduced hereunder for easy reference:
12. The effect of Rules 97 to 104 of Order 21 of the C.P. Code has been considered elaborately by this Court in Chandrakant Mallappa Desai's case and we agree with it. After quoting the relevant provisions, this Court has held as follows:
"5.....Rule 103 of Order 21 of the Code further provides that the adjudication made under Rule 98 or Rule 100 of the Code, and an order passed 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. Rule 101 of Order 21 of the Code, further provides that the Executing Court shall be deemed to have jurisdiction to decide all questions including those relating to right, title or interest in the property arising between the parties to a proceeding or their 5 ILR 1991 Kar 254
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 representatives and relevant to the adjudication of the application under Rule, 97 or 99, shall be determined by the Court dealing with the application and not by a separate suit. Consistent with this, the order passed under Rule 98 or Rule 100 of Order 21 of the Code, has been provided with the force of a decree. That being so, the same subject matter cannot in law be allowed to be tried between the same parties in another suit. Similarly, if a proceeding under Rule 97 of Order 21 of the Code is instituted during the pendency of the suit between the same parties involving same issues filed by the party to establish a right which he claims to the present possession of the property which is the subject matter of both the proceedings, cannot be allowed to go on in view of the fact that there is already a suit filed by the obstructor seeking the very same relief. In such a situation, the proceeding under Rule 97 of Order 21 of the Code being a subsequently instituted proceeding, cannot be allowed to overtake the suit instituted earlier and to render the suit infructuous. The position prior to coming into force of the C.P.C. Amendment Act 104 of 1976 was quite different as there was no provision similar to Rule 103 of Order 21 of the Code. Now the effect of Rule 103 of Order 21 of the Code is that even a proceeding under Rule 97 of Order 21 of the Code is treated as suit and the order passed upon the adjudication of the application on merits is treated as a decree. The result is that the provisions of Section 10 of the Code are also attracted. Therefore, later proceeding will have to be stayed. This is necessary to avoid multiplicity of proceedings.
6. Rule 103 of Order 21 of the Code as it stood prior to Central Act No. 104/1976 provided that "any party not being a Judgment-debtor against whom an order is made under Rule 98 and 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." The period of limitation for such a suit as per Article 98 of the Limitation Act, 1963 is one year from the date of
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 the final order. There were different views expressed by the High Court of Calcutta and Madras, as to whether it was necessary to institute a suit within one year or whether a decision in a pending suit could be availed of, if it involved the same question. To set at rest, the controversy, the Law Commission, in its 54th Report, recommended for substitution of Rule 103 and insertion of the new Rule 104. Accordingly, the present Rules 103 and 104 of Order 21 of the Code came to be substituted and inserted respectively by C.P.C. (Amendment) Act 1976 (Central Act No. 104 of 1976). But it appears to me, present Rules 103 and 104 of Order 21 of the Code, if interpreted literally, do not help to avoid multiplicity of proceedings. No doubt the adjudication falling under Rule 98 and 100 of Order 21 of the Code, are intended to provide a speedy remedy. But having regard to the provisions contained in Rule 103 of Order 21, an order passed on adjudication under Rule 98 or Rule 100 of Order 21 of the Code shall have the same force and be subject to the same conditions as to an appeal, or otherwise, as if it were a decree, the proceeding ceases to be a summary proceeding, it shall have to be tried as a suit. That being so, I fail to understand why the proceeding initiated under Rule 97 of Order 21 shall go on when there is already a suit filed by the affected party seeking to establish a right which he claims to be present possession of the property. In addition to this, Rule 104 of Order 21 makes the decision rendered under Rule 101 or Rule 103 of Order 21 of the Code, subject to the result of any suit that may be pending on the date of the commencement of the proceeding in which such order is made. When under Rule 103 of Order 21, the decision is raised to the status of a decree; why again it should be made subject to the result of the suit that may De pending on the date of commencement of the proceeding in which such order is made. Therefore, to avoid multiplicity of proceedings and to read the provisions contained in Rules 101, 103 and 104 of Order 21 of the Code, harmoniously, as the same are to be read and interpreted harmoniously, and also keeping in view Section 10 of the Code, the proper course
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 appears to me is to hold that if on the date of initiation of the proceeding under Rule 97 of Order 21 of the Code, a suit between the parties has already been filed by the party who has sought to establish a right which he claims to the present possession of the property, proceeding instituted under Rule 97 of Order 21 of the Code, being a subsequent proceeding involving the same issues that are required to be decided in a pending suit between the same parties in respect of the same subject matter, shall have to be stayed pending decision in the suit. In this view of the matter, the order passed by the lower appellate Court does not call for interference."
The decision in Mahaveera's case leads to the following result:
Even though a person in possession of an immovable property against which a decree for possession is passed, obstructs execution on the ground that he is in possession in his own right and does not claim the right to present possession through the Judgment debtor, the execution Court has to proceed with the execution on the basis that such objections to the execution are not maintainable and the only remedy for such a person is to file a suit after he is dispossessed to establish his title and secure possession. We are of the view that such a procedure not only ignores the possessory right, but it is opposed to our basic principles of jurisprudence that no person shall be condemned without affording him due opportunity to defend his case and no right or interest of a person whether in immoveable or moveable property or of any other nature can be taken away without giving him due opportunity of hearing. Rules of procedure shall have to be construed and enforced to advance justice and not to defeat the substantive right of a person.
25. For the reasons stated above, we hold as follows:
a) The decisions in Mahaveera's case and Mohammed Ameer!s case, are held as not laying
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 down the law correctly and the same are overruled.
b) The decision in Jesraj Ghasimal Betel's case, in so far it holds that as the objections filed by a decree-holder, do not contain a prayer for removal of objection and as such the same cannot be treated as an application under Order 21 Rule 97 C.P.C. and the objections filed by the third party cannot be considered, is over-ruled. To the extent it holds that the objections filed by the decree- holder to the obstruction caused by the third party can be treated as an application under Order 21 Rule 97 C.P.C. is confirmed as it is in conformity with the provisions contained in Order 21 Rules 36(1) and 97 co 104 CPC.
c) The decision in Chandrakant Mallappa Desai's case is affirmed as laying down the law correctly. Accordingly, Points 1 and 2 raised for determination in this case are answered as follows in the affirmative:
"It is open to the person in possession of an immoveable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued; or to obstruct the execution of the delivery warrant."
"The executing Court cannot proceed further in the execution without determining the objections filed by such a person in terras of Rules 98 to 103 of Order 21 of the C.P. Code in the same manner as a suit, irrespective of the fact whether or not an application is filed by the decree-holder for removal of obstruction under Rule 97 of Order 21 C.P.C."
26. It is open to the person in possession of an immoveabie property in his own right and not through a Judgment debtor to resist execution and establish his right, title and interest to the immoveabie property which is the subject matter of the decree for possession or order for eviction.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 He need not wait until he is dispossessed in the execution of the decree for possession or order of eviction. In the event objections are filed by such a person, the executing Court shall have to decide the same in the same manner as a suit. It is also open to him to file a suit for declaration of title and permanent injunction before the decree for possession or order of eviction is put into execution or to file a suit for possession on the basis of his title, if he fails to resist the execution or does not get an opportunity to resist execution. 5.14. By relying on Paramound Industries' case, Sri.Mahantesh Patil, learned counsel submits that it is open to a person in possession of immovable property not being a party to a decree to obstruct the execution by filing objection to the execution before the delivery warrant is issued to obstruct the delivery warrant, once such an application is filed, the execution court cannot proceed further in terms of Order 21 Rule 98 to 102. This option is left to the person in possession.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 5.15. The decision of Hon'ble Apex Court in Sameer Singh v. Abdul Rab6, more particularly para no. 26 thereof, which is reproduced hereunder for easy reference:
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 6 (2015) 1 SCC 379 | 2014 INSC 721
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Court in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675].
5.16. Relying on the Judgment in Sameer Singh's case, the submission of Sri. Mahantesh Patil, learned counsel for the petitioner is that, after the 1976 amendment, any obstruction raised by the third party was required to be answered by conducting enquiry by the execution court. 5.17. Sri. Mahantesh Patil, learned counsel relying on the above submissions and citations referred to supra, submits that, the above petition is required to be allowed and the relief sought for be granted.
6. Sri. Shivakumar Kallur, learned counsel for the respondent No.1/decree holder would submit that, 6.1. There is absolutely no right on part of the petitioner to obstruct the execution of the decree, the respondent No.1 had filed
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 O.S.No.89/2002 for possession of the suit schedule property which initially came to be dismissed by the Trial Court and later decreed by the First Appellate Court holding that, respondent No.1 is entitled to possession, which came to be confirmed in a Second Appeal.
6.2. The petitioner/objector does not have any independent right over the property, the claim of the petitioner is that, one Govindareddy had purchased 3 guntas of the subject property, wherein a residential house had been put up and the said Govindareddy had offered to sell the property to the petitioner in the year 1999 and put the petitioner in possession. 6.3. Sri. Govindareddy, himself not having right title or interest, the question of Govindareddy transferring any interest in favour of the petitioner would not arise.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 6.4. The only contention taken up by the petitioner is that, the respondent No.1 was due for some amounts to the said Govindareddy, and respondent No.1 being unable to discharge his dues had orally agreed to sell the property to the said Govindareddy and Govindareddy in turn had offered to sell the property to the petitioner.
6.5. Respondent No.1 not having sold the property to Govindareddy, the question of Govindareddy on the basis of an alleged oral agreement of sale which had not fructified into a sale deed could not have entered into an agreement of sale with the petitioner, there being no right title or interest in the property vested with Govindareddy, the petitioner having also entered into an agreement of sale and no Sale deed having been executed in favour of the Petitioner, the Petitioner cannot claim any independent right over the subject property.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 6.6. When the submissions made in the application itself were clear that the person under whom the petitioner claims to have been a transferee of title himself did not have any right, title or interest, the question of any enquiry being conducted in terms of Rule 101 of Order XXI would not arise and in this regard, he relies upon the following decisions:
6.7. The decision of this Court in Hemalatha Nayak @ Vijaya Laxmi Shenoy Vs. Sri. U. Prabhakar Nayak and another7, more particularly, para no.7 thereof, which is reproduced hereunder for easy reference:
7. While arriving at such conclusion the learned Judge had referred to the decision of the Hon'ble Supreme Court and the learned counsel for the respondent herein has also relied on that decision in the case of Silverline Forum Pvt Ltd -vs-
Rajiv Trust and another (AIR 1998 SC 1754) wherein it is held that the Executing Court can decide whether the Resistor or Obstructor is a person bound by the decree and he refused to vacate the property. The adjudicatory process is as 7 (2017) 3 KCCR 2096 | 2017:KHC:11191
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 contemplated under Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on averments made by the Resistor. The Court can also direct the parties to adduce evidence for such determination if the Court deems it necessary.
6.8. By relying on Hemalatha Nayak's case, Sri.Mahantesh Patil, learned counsel submits that though an enquiry is required to be held in terms of Rule 97 of Order 21, the said enquiry contemplated is not a detailed enquiry, even a summary enquiry would satisfy the requirement of Rule 97 and 99 of Order 21. If the execution court were capable of coming to a conclusion as regard the disputed questions on a summary enquiry, a summary enquiry would be sufficient.
6.9. The decision of this Court in Tayamma @ Thippamma (Smt.) and others Vs. K.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Ramappa and another8, more particularly para nos.5, 6 & 7 thereof, which is reproduced hereunder for easy reference:
5. In our opinion the executing court should not have entertained the application filed under Order 21 Rule 97 CPC. Although the applicants invoked other provisions of Order 21, the application was filed basically under Rule 97, the applicants being the objectors. When we questioned Sri Raghuveer R. Sattigeri, whether the executing court had passed an order attaching any immovable property and for holding an auction to recover the compensation amount, he honestly answered that no immovable property had been attached and sold in auction. He also honestly answered to our question that suit was not filed for possession of any immovable property and that no delivery warrant as required under Order 21 Rule 35 of CPC had been issued by the executing court. In this context the question would arise whether the applicants could have filed an NC: 2023:KHC-
D:12331-DB application under Order 21 Rule 97 of CPC. For better understanding, we have extracted Rule 97 of CPC here.
"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 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 8 HCR 2024 Kar. 116 | 2023:KHC-D:12331-DB
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 application in accordance with the provision herein contained."]
6. Plain language of the Rule makes it very clear as to under what circumstances an application under Rule 97 can be filed. The holder of a decree for possession may file an application to the executing court for removing the obstruction or resistance shown by any other person to the execution of the decree. Also if an auction purchaser finds resistance or obstruction to his taking possession of the property sold in auction, he can request the executing court to remove the obstruction. It is now a settled law that even a third party who has got interest in the property which is subject matter of the execution NC: 2023:KHC-D:12331-DB proceeding can file an application under Order 21 Rule 97 of CPC. That means there must be a decree for possession or an immovable property should have been attached and sold in the course of execution proceeding and the auction purchaser should have found an obstruction to taking possession. Even the taking of possession by an auction purchaser can be resisted by a third party if he has got any kind of interest over the auctioned property. In this case these two circumstances are conspicuously absent.
7. The respondent might have thought that he should seek declaration of title over the suit property in order to claim the compensation amount. Since the compensation amount was lying in deposit somewhere, he sought its release in his favour by filing execution. Respondent being the decree holder did not apply for attachment of any immovable property. This being the position, the applicants could not have filed an application under Order 21 Rule 97 of CPC. If it is their case that their father had died much before the sale deed in favour of respondent came into existence, they should have filed a suit; they should not have approached the executing court. Taking note of these aspects, the executing court ought to have NC: 2023:KHC- D:12331-DB dismissed the application in limine, without holding any enquiry. It is not that an application under Order 21 Rule 97 of CPC cannot
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 be dismissed in limine if the obstructor fails to satisfy the court his prima facie right to show resistance to the execution. Enquiry can be held only when the executing court finds that the obstructor has got a semblance of right or interest which requires detailed enquiry. Satisfaction as to prima facie right or interest can be arrived at on reading the affidavit filed along with the application and supporting documents. Order 21 Rule 102 of CPC is one instance of dismissing the obstructor's application at the initial stage; the court may not entertain third party application for any such other reasons as the court thinks not entertainable. If this kind of examination is not done at the initial stage, and if enquiry is ordered on frivolous application, the decreeholder can never reap the fruits of the decree. In this case the brother of the applicants was the first defendant in the suit. Instead of dismissing the application at the initial stage without holding enquiry, the executing court held an enquiry and gave findings that the applicant's father was not alive in the year 1998 and that they were not the legal representatives of Belagalappa.
6.10. By relying on Tayamma's case, Sri.Shivakumar Kallur, learned counsel submits that the enquiry can be held only when the execution court finds that the obstructor has got a semblance of right or interest which requires detailed enquiry. It is only on such satisfaction a detailed enquiry is to be held. If on a preliminary enquiry execution court comes to a conclusion that the third party obstructor
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 has no semblance of right, title or interest, then the executing court should dismiss the application at that stage without holding a detailed enquiry like a suit.
6.11. The decision of the Hon'ble Apex Court in N.S.S. Narayana Sarma & Ors. Vs. M/s. Goldstone Exports (P) Ltd., and Ors9, more particularly para Nos.18 and 19 thereof, which is reproduced hereunder for easy reference:
18.From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructing the attempt by the decree-
holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing Court it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simplicitor. In such a suit the High 9 2002 SAR (Civil) 40 | 2001 INSC 580
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned single Judge and the Division Bench dismissed the petition filed by the appellants as non- maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Paigah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State Government under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the single Judge as well as Division Bench of the High Court, we are constrained to observe that the said orders are based on a complete mis-reading of the case of the appellants and mis-conception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a single Judge at the first instance.
19. Accordingly, the appeals are allowed. The order dated 28th December, 1995 of the learned single Judge in C.S.No.14 of 1958 which was confirmed by the Division Bench in the order dated 10th November, 1998 in O.S.A.Nos.10,11,18,20/1996 & 35, 36 and 37 of 98 (appealed from) is set aside and the matter is remitted to the High Court for fresh consideration of the petitions filed by the appellants and disposal in accordance with law. The matters shall
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 be placed before a single Judge of the High Court other than the learned Judge who passed the order, at the first instance. The contesting respondents shall pay to the appellants a sum of a Rs.10,000/- as costs of these appeals. 6.12. Placing reliance on Narayana Sharma's case, he submits that if a third party who is not a party to the decree were to file an application, appropriate orders were to be passed thereon which would be treated as decree in terms of Order 21 Rule 103 of CPC.
6.13. The decision of the Hon'ble Apex Court in Tanzeem-e-Sufia Vs. Bibi Haliman and others10, more particularly para no.14 thereof, which is reproduced hereunder for easy reference:
14. We find that in the case in hand the appellant is claiming its independent right over the property and asserts its possession thereof.
Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court therefore, 10 2002 SAR (Civil) 768 | 2002 INSC 361
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 erred in refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in title suit No. 8 of 1983 is not binding on it. The provision contained under Order 21 Rule 101 CPC seems to have escaped notice of the High Court while passing the order. We would also like to observe that the reasoning given by the execution Court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would only lie by moving an application under Order 21 Rule 99 CPC is also erroneous as in case of Brahamdeo Chaudhary' (supra), it has been held that it should not be insisted that possession be delivered first and the objector may later on move the Court under Order 21 Rule 99 CPC. 6.14. On the basis of the above, Sri. Shivakumar Kallur, learned counsel for the respondent supports the order passed by the Trial Court and submits that, the above petition is required to be dismissed.
7. On the basis of the submissions made by both the learned counsels, the points that would arise for consideration are;
1. Whether in all cases, there would be a requirement of an enquiry under Rule 97 of Order XXI of CPC?
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023
2. Whether the order passed by the trial Court suffers from any infirmity, requiring interference at the hands of this Court?
3. What order?
8. The relevant provisions for consideration of the present matter being Order 21, Rule 97 to 106 are reproduced hereunder for easy reference:
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.
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.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 (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.
99. Dispossession by decree-holder or purchaser.--(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) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession.--Upon the determination of the questions referred to 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 other order as, in the circumstances of the case, it may deem fit.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023
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.
102. Rules not applicable to transferee pendente lite .--Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgement-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
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.
104. Orders under rule 101 or rule 103 to be subject to the result or pending suit.--Every order made under rule 101 or rule 103 shall subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order, is made if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023
105. Hearing of application.--(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Explanation.--An application referred to in sub-rule (1) includes a claim or objection made under rule
58.
106. Setting aside orders passed ex parte, etc.--(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called on for hearing, the Court shall set aside the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 8.1. Rule 97 of Order 21 of CPC provides that where a holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person from obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. 8.2. Thus, an application under Rule 97 of Order 21 can be made by a decree holder and not by the judgment debtor or a third party. When such an application is filed, necessary Orders could be passed as against such obstructor after consideration of the matter.
8.3. Rule 99 of Order 21 provides for 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 decree by the purchaser thereof,
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 he may make an application to the Court complaining of such dispossession. 8.4. Thus, under Rule 99 of Order 21, a person who is not a party to the proceedings, that is, he is neither the decree holder who has been provided the benefit of Rule 97 of Order 21 nor a judgment debtor is dispossessed, since such person is not a party to the said proceedings, Rule 99 of Order 21 provides for such third party who was in possession of the property and who is dispossessed, and or sought to be dispossessed to approach the Execution Court under Rule 99 of Order 21.
8.5. When an application under Rule 97 or 99 of Order 21 is filed, Rule 101 of Order 21 provides for questions to be determined in such matters. 8.6. Rule 101 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 Rule 97 or Rule 99
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 and relevant for adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. 8.7. Rule 101 also contains a non-obstante clause inasmuch as it states that notwithstanding anything to the contrary contained in any other law for the time being in force, the Court seized of an application under Rule 97 and or 99 would be deemed to have jurisdiction to decide such questions.
8.8. Rule 98 of Order 21 provides for Orders to be passed after adjudication and in terms thereof, upon the determination of questions including questions relating to right, title or interest in the property as contained in Rule 101, the execution Court shall in accordance with such determination subject to proviso to Sub-Rule (2) of Rule 98 of Order 21, make an Order allowing the application, directing that the applicant be put into possession of the property
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 or dismissing the application or pass any other Order as in the circumstances of the case, it may deem fit.
8.9. Thus, if an application had been filed by the decree holder, the Execution Court would allow the application and put the applicant decree holder into possession or if an application has been filed by a person other than the judgment debtor who is dispossessed, such person who is dispossessed could also be put in possession of the property in terms of clause (A) of Sub-Rule (1) of Rule 98 of Order 21.
8.10. Sub-Rule (2) of Rule 98 of Order 21 provides specifically for a case where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by Judgment debtor or by such other person at the Judgment debtor's instigation or on his behalf or by any transferee where such transfer was made during the pendency suit or execution
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 proceeding, the Court could direct that the decree holder be put into possession of the property and where the decree holder is still resisted or obstructed in obtaining possession, the Court may also at the instance of the decree holder Order the judgment debtor or any person acting at his instigation or on his behalf to be detained in a civil prison for a term which may extend to 30 days.
8.11. Sub-Rule (2) of Rule 98 of Order 21 deals specifically with an application filed by decree holder, where the decree holder in execution of the decree of possession is obstructed or resisted by a judgment debtor or any person acting under his instigation, that is to say that there must be a relationship or a connection between the judgment debtor and the person obstructing or resisting. Thus, by Sub-Rule (2) of Rule 98 of Order 21, a third category of persons are brought into consideration other
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 than the decree holder, judgment debtor and third parties so as to include persons who are connected with or acting under the instigation of the judgment debtor.
8.12. Rule 100 of Order 21 provides for the Court to after determination of questions referred to in Rule 101 to make an Order allowing the application and directing the applicant to be put in possession of the property or dismissing the application. Rule 100 is of course a reiteration of Rule 98, but refers to and makes the said Rules applicable specifically to third parties who are complaining of dispossession. 8.13. In terms of Rule 102, it is made clear that nothing in Rule 98 and 100 shall apply to resistance or obstruction in execution of decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 8.14. In terms of Rule 103 any Order passed in terms of Rule 98 and 100 are stated to have the same force as a decree and would be subject to the conditions as to an appeal or otherwise. 8.15. Though Rule 101 as aforesaid mandates that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding in a application under Rule 97 or 99 shall be determined by the Court dealing with the application and not by a separate suit. Rule 104 makes an exception indicating that every Order made under Rule 101 or Rule 103 shall be subject to any suit that may be pending on the date of commencement of the proceeding in which such order is made and if in such a suit the party against whom the Order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property. Thus, if a suit were to be pending
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 on the date of commencement of the proceeding in which an Order under Rule 101 or 103 is made, then such Order shall be subject to the result of the suit.
8.16. The commencement of the proceedings referred to under Rule 104 can only relate to the execution proceedings where the Order is passed, that is to say a suit is required to be pending even prior to the filing of the execution proceedings and further, that in such a suit a right of possession is required to be in issue. 8.17. These twin conditions being required to be satisfied for the applicability of Rule 104, if those conditions are not satisfied then all questions would have to be determined under Rule 101 of Order 21. Needless to say, it is only when the twin conditions under Rule 104 are satisfied that the Orders passed under Rule 101 and 103 shall be subject to a prior instituted
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 suit or prior to the execution proceedings where a right to possession has been asserted. 8.18. In terms of Rule 105 which provides for the procedure to be followed, the Court where an application is filed can fix a day for hearing of the application and if the applicant were not to appear on that date, the matter could be adjourned and if no appearance is made, the application could be dismissed. If the other side were not to be present, then the application could be taken up exparte for consideration after service notice on the other side. 8.19. Rule 106 provides for setting aside or otherwise of an ex parte Order passed under Rule 105. Thus for the purpose of this matter, both Rule 105 and Rule 106 would not be relevant. 8.20. It is in the background of the above provisions that the points for determination would have to be answered.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023
9. ANSWER TO POINT NO.1: Whether in all cases, there would be requirement of an enquiry under Rule 97 of Order XXI of CPC?
9.1. In the present case, the facts are;
a) Respondent No. 3 had filed a suit for possession in OS No. 89 of 2022, which came to be decreed and confirmed in RA No. 1 of 2008 and RSA No. 70 of 2011, as regards which execution Petition No. 32 of 2022 had been filed. All the above proceedings had been filed against respondent No.2.
b) Possession warrant had been issued on 21-3-2022, when the bailiffs sought to execute the same on 14.04.2022, the petitioner objected to the said execution of the possession warrant and had also filed a suit in OS No. 9 of 2022, seeking for injunction restraining the respondent therein, that is the decree holder from
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 interfering with this possession, which is now transferred to the first additional civil judge in BMFC, Sindhanoor as O.S. No.258 of 2022, wherein an ad-interim injunction has been granted.
c) It is thereafter that the petitioner had filed an application in Order 21 Rule 97, read with Section 47 of the CPC in the aforesaid execution petition No. 32 of 2022, which came to be dismissed and challenging the said Order, the petitioner is before this Court.
d) The above facts are not in dispute. 9.2. Insofar as history of the litigation in the above matter is concerned, same is also not in dispute.
9.3. The facts and law not being in dispute, the Judgments referred to by both the counsel for the petitioner and counsel for respondent relating to the interpretation of the above
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Rules, as indicated in detail in para 8 above, the Judgments which have been referred to need not be dealt individually in the present case. It is a fact and the applicable law thereto, which is required to be determined which is so done as under:
9.4. The contention of Mahanthesh Patil, learned counsel for the petitioner is that in all cases where application is filed under Order 21 Rule 97, there will be requirement of detailed enquiry. In the present case, the petitioner claims to be a third party, but has filed an application under Order 21 Rule 97. As observed supra, an application under Order 21 Rule 97 can be filed only by the decree holder and not a third party. For a third party, the remedy provided is under Order 21 Rule 99.
Without going into the technicalities, if the application filed by the petitioner were to be taken into consideration as one filed under
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 Order 21 Rule 99, what would be required to be determined is whether the petitioner is a third party or not.
9.5. Respondent No.1 had filed the suit in O.S. No.89/2002 for possession of the suit schedule property against one Govinda Reddy. The petitioner in the present case claims under one Govinda Reddy who was the defendant in OS No. 89/2002 who suffered a decree in the said proceedings. The claim of the petitioner is that Govinda Reddy had agreed to sell three guntas of land in favour of the petitioner. However, no sale deed has been executed by said Govinda Reddy and the claim of the petitioner is only based on the agreement said to be entered into, which is also a oral agreement and not reduced to a written agreement. Thus, it is clear that the claim of the petitioner is under Govinda Reddy who was the defendant in O.S.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 No.89/2022. Thus, the decree having passed against Govinda Reddy, the claim of the petitioner is under a Judgment debtor. 9.6. The chapter relating to resistance to delivery of possession to decree holder or purchaser which contains Rules 97 to 106 have been extracted hereinabove. The above provisions also not provide for any application to be made by Judgment debtor or any person claiming under the Judgment debtor under the aforesaid Rules. As afore observed Rule 97 only provides for an application to be filed by a decree holder if obstructed from taking possession. Rule 99 provides for an application by a person other than the Judgment debtor, thereby excluding the Judgment debtor or anyone claiming through or under the Judgment debtor. 9.7. For an application to be maintainable under Order 21 Rule 99, the person filing such an application necessarily has to be a person other
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 than the Judgment debtor and ought not to claim under the Judgment debtor. The petitioner in the present case claiming that the Judgment debtor had orally agreed to execute a sale deed would necessarily imply that there is no independent right, title or interest of the petitioner but the petitioner claims under the Judgment debtor. This aspect being clearly evident on the face of the documents and on the face of the application itself, when the petitioner himself has asserted a claim under a Judgment debtor and there is no independent right of the petitioner, the application itself not being maintainable, the question of any enquiry, let alone a detailed enquiry under Rule 101 of the Code of Civil Procedure would not be required.
9.8. The questions that are required to be determined under Rule 101 insofar an application filed by a decree holder against a
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 third party is as regards the right of the decree holder and the right of the third party with the inter se determination of their respective rights. 9.9. The questions to be determined under application in Rule 99 is the right of a third party who files such an application vis-à-vis the decree holder and their interse rights. In the present case none of the questions under Order 21 Rule 101 would arise for consideration. 9.10. Thus, I answer Point No.1 by holding:
1) If an application is filed under Order 21 Rule 99, the first question that would be required to be determined is, whether the applicant is a third party or is claiming under the Judgment debtor? If the applicant is claiming under the Judgment debtor, the application would have to be dismissed on such a finding.
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 (2) If the applicant were to be an independent third party, it is only then that the claims of such applicant would have to be adjudicated. (3) If the contentions raised by such third party- applicant could be dealt with on affidavits and the admitted documents filed, there would be no requirement of a detailed enquiry. A preliminary enquiry would suffice to determine the right of such third party insofar as the property subject matter of the decree is concerned.
(iv) If on a preliminary enquiry, it is found that the applicant does not have any subsisting right, title or interest in the property subject matter of the decree, the application would have to be dismissed.
(5) In the event of the third party having a subsisting right title or interest, the applicability of the decree to the third party would have to be
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 determined, which would require a detailed enquiry into the inter se rights of the third party and the decree holder in terms of Rule 101 of CPC.
10. ANSWER TO POINT NO.2: Whether the order passed by the trial Court suffers from any infirmity, requiring interference at the hands of this Court?
10.1. In the present case, the trial court after considering the claim of the petitioner to be under the Judgment debtor has rejected the claim and dismissed the application, by considering the same even though the same was filed under Order 21 Rule 97.
10.2. As observed supra and as pointed out the petitioner does not have an independent right other than claiming under the Judgment debtor under the oral agreement. Thus, the finding of the trial court that the petitioner has no independent right being proper and correct, the order of the trial court does not suffer from any
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NC: 2024:KHC-K:9663 WP No. 200085 of 2023 infirmity requiring interference at the hands of this court.
11. ANWER TO POINT NO.3: What Order?
In view of my answer to point Nos.1 and 2 above, the petition stands dismissed.
Sd/-
(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 1