Calcutta High Court (Appellete Side)
Sri Rabi Sen vs Smt. Basanti Shaw (Gupta) & Ors on 15 November, 2019
IN THE HIGH COURT AT CALCUTTA
Original Civil Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Ravi Krishan Kapur
F.M.A. No. 3431 of 2015
Sri Rabi Sen
vs.
Smt. Basanti Shaw (Gupta) & Ors.
For the Appellant : Mr. Aniruddha Chatterjee, Adv.
Ms. Sohini Bhattacharyya, Adv.
For the Respondents : Mr. Kashi Nath Dey, Sr. Adv.
Mr. Amit Choudhury, Adv.
Hearing concluded on : 08.11.2019
Judgment on : 15.11.2019
Soumen Sen, J.:-
1. This appeal arises out of judgment and order dated March 31, 2014
in Misc. Case No. 1941 of 2004 passed by the 10th Bench of City Civil Court,
Calcutta in an application filed by the respondents under Order 21 Rule 101 of
the Code of Civil Procedure, 1908 (hereinafter referred to as the "C.P.C.") in
connection with Title Execution Case No. 65 of 2003 for enforcement and
execution of the judgment and decree passed in Title Suit No. 1694 of 1995.
2. The suit premises, being Premises No. 28, Nabin Sarkar Lane,
Kolkata - 700 003, P.S. Shyampukur, was earlier owned by one Mr. Gour
Chandra Banerjee. Mr. Gour Chandra Banerjee executed a deed of lease dated
September 19, 1952 commencing from October 1, 1952 for a period of 16 years
till September 30, 1968 at a monthly rate of Rs. 65/- in favour of the
predecessor-in-interest (father) of one Mr. Raghu Nath Shaw. Thereafter, Mr.
Raghu Nath Shaw started to reside in the property. Mr. Gour Chandra Banerjee
died intestate on October 11, 1974 and was survived by his legal heirs. Mr.
Raghu Nath Shaw too passed away leaving behind Mr. Dilip Kumar Shaw as his
legal heir. No fresh tenancy was created after the expiry of the lease and the legal
heirs of the lessor refused to accept rent from the occupants of the premises who
were earlier the lessees; yet, for a number of reasons, the erstwhile lessors did
not move to have the suit premises vacated. The legal heirs of Mr. Gour Chandra
Banerjee sold the suit premises to Mr. Rabi Sen, the present appellant, on
September 20, 1991 by a registered deed of conveyance.
3. Mr. Rabi Sen instituted Title Suit No. 1694 of 1995 against Dilip
Kumar Shaw. Mr. Dilip Kumar Shaw contested the suit, inter alia, on the ground
that the suit was barred by limitation. Mr. Dilip Kumar Shaw admitted that he
was a trespasser since October 1, 1968 with the full knowledge of Mr. Gour
Chandra Banerjee and, subsequently, his legal heirs. Mr. Dilip Kumar Shaw
asserted that his possession of the property matured into good title by virtue of
adverse possession. On March 8, 2002, the suit was decreed in favour of Mr.
Rabi Sen and it was ordered that he was entitled to khas possession of the suit
premises. Mr. Dilip Kumar Shaw was directed to hand over peaceful possession
within three months of the date of decree, failing which the appellant would be at
liberty to execute the decree in accordance with the law.
4. On June 17, 2003, at about 2.00 P.M., Mr. Rabi Sen along with the
Court Bailiff went to the suit premises and requested the respondents herein, the
wife and children of Mr. Dilip Kumar Shaw, to vacate the premises since there
was a decree for the same. The impugned judgment (in Misc. Case No. 1941 of
2004) records that Mr. Rabi Sen was unable to produce the decree at that time
and, therefore, the respondents resisted him. Thereafter, the respondents
enquired and found that Mr. Rabi Sen had obtained a decree against Mr. Dilip
Kumar Shaw without impleading the respondents as parties to that suit. The
respondents filed an application under Order 21 Rule 101, C.P.C. The said
application was allowed by the learned Trial Judge. This has given rise to the
present appeal.
5. Mr. Aniruddha Chatterjee, the learned counsel appearing on behalf
of the appellant, has submitted that the learned Trial Judge has completely
misdirected his mind in dismissing the said application on the ground that for
eviction of the respondents, the appellant would be required to file a separate suit
for eviction of the respondents. It is further submitted that the application filed
by the respondents is also not maintainable in law as the respondents in an
application under Order 21 Rule 101 of the C.P.C. cannot challenge the decree.
In such a proceeding, the respondents are required to establish their
independent right, title and interest in respect of the suit property to resist the
decree. It is submitted that in a proceeding under Order 21 Rule 101, the
executing court cannot act as a court of appeal and go behind the decree for the
purpose of ascertaining the correctness of the decree.
6. Mr. Chatterjee has argued that the respondents are bound by the
decree passed against Mr. Dilip Kumar Shaw and cannot avoid the enforcement
of the said decree against them. The interest of the respondents, if any, has been
sufficiently represented by Mr. Dilip Kumar Shaw in the suit. It is submitted that
the said application has been filed by the respondents to circumvent the decree.
7. Mr. Kashinath Dey, the learned Senior Counsel appearing on behalf
of the respondents, submitted that the decree is a nullity and it is a well-
established principle of law that the executing court can refuse execution of a
decree passed without jurisdiction if it is a nullity. The learned Senior Counsel
has submitted that the basis of the application is that the decree sought to be
executed is a nullity, as the appellant has no right, title and interest over the
property as the appellant has lost such right over the property in view of Article
67 of the Limitation Act, 1963. It is submitted that it would appear from the
decree passed against Mr. Dilip Kumar Shaw that the appellant, even if it is
assumed for the sake of argument that he became the owner of the property by
purchasing the property from the original owner, could not have instituted the
suit for possession since the suit for eviction was filed later than 12 years from
the date of determination of the tenancy. The right to recover the property by the
original owner had been lost by the time the appellant purchased the property
from the owner. The appellant, accordingly, lost its right to the property at the
time of purchase, being out of possession. The right to recover property by him as
owner is extinguished by reason of Article 67 of the Limitation Act, 1963. The
learned Senior Counsel has, however, fairly conceded that the said application
has not been argued on the aforesaid basis. For these arguments Mr. Dey places
reliance on the following cases:-
a) Mohunt Bhugwan Ramanuj Das v. Ramkrishna Bose & Anr., (1919)
XXVL C.W.N. 722.
b) Kumar Kamekhya Narain Singh v. Bechu Sing & Anr., A.I.R. 1925
Pat. 499.
c) Sidram Lachmaya v. Mallaya Lingaya Chilaka, A.I.R. 1949 Bom. 137.
d) Thailammai v. Batumalai, 1965 (1) M.L.J. 383.
e) Rame Gowda (Dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. &
Anr., (2004) 1 S.C.C. 769.
f) Prem Singh & Ors. v. Birbal & Ors., (2006) 5 S.C.C. 353.
g) Kanwar Singh Saini v. High Court of Delhi, (2012) 4 S.C.C. 307.
h) Prabhat Kumar Didwania v. Juthika Nath & Ors, 2015 (3) I.C.C. 350
(Cal.).
i) Eureka Builders & Ors. v. Gulabchand, (2018) 8 S.C.C. 67.
j) Dilip Kumar Mondal v. Sakti Dhar Mondal, (2018) 4 I.C.C. 913 (DB.).
k) Gopalkrishna (Dead) by LRs. & Ors. v. Narayanagowda (Dead) by LRs.
& Ors., (2019) 4 S.C.C. 592.
8. We feel that it is not required to consider the aforesaid decisions at
all in view of the fact that the impugned order suffers from lack of understanding
of Order 21 Rule 101 of the C.P.C. The learned Trial Judge did not allow the
application filed by the defendants on the ground that the decree is a nullity but
on the premise that the applicants cannot be evicted without due process of law.
The learned Trial Judge was completely remiss of the fact that in an application
under Order 21 Rule 101 of the C.P.C. it is incumbent upon the court to decide
the right, title and interest of the applicants vis-a-vis the property.
9. All questions relating to execution, discharge or satisfaction of the
decree are to be adjudicated in the executing court and not via a separate suit
between the parties to the suit. The executing court cannot go behind the
correctness of the decree except where the decree is a nullity or is passed without
jurisdiction, as held the Hon'ble Supreme Court in Rameshwar Das Gupta v.
State of U.P., A.I.R. 1997 S.C. 410 at para 4 and in Bhawarlal Bhandari v.
Universal H.M.L. Enterprises, (1999) 1 S.C.C. 558. If it is seen that the court
had the jurisdiction to pass the decree, the decree once passed cannot be
otherwise challenged during execution, no matter how good or bad the decree
may be on facts or in law, since the only recourse for the judgment-debtor would
be to challenge the decree in appeal under Section 96 of the C.P.C. or in review
under Order 47 Rule 1, as held in P.N. Pharma Marketing Pvt. Ltd., Guwahati
v. Nicholas Piramal (I) Ltd., Mumbai, A.I.R. 2014 Gau. 84. The court
executing the decree cannot go behind the decree. Any objection to the decree
that it is incorrect in law or in fact cannot be entertained until it is set aside by
an appropriate proceeding in an appeal or in revision. A decree even if it is
erroneous is still binding between the parties. When a decree is a nullity, i.e.
where the same is made by a court which had no inherent jurisdiction to make it,
its nullity can be taken up in an execution proceeding, as a lack of inherent
jurisdiction goes to the root of competence of the court to try the case, and, in
such a situation, the executing court would not be going behind the decree since
the decree, being null and void, is no decree at all in the eyes of law.
10. However, for the purposes of the present case, it must be noted that
the expression "between the parties to the suit in which the decree is passed"
occurring in sub-section 1 of Section 47 of the C.P.C. has its own significance -
the prohibition only applies to those who were made a party to the suit and not
to those who were not parties in the suit, as held in Mandwa Sreeramamurthy
v. The Manager, Andhra Bank, A.I.R. 2012 A.P. 66.
11. The legislature made drastic amendments in the provisions to Order
21, particularly Rule 101, and it is categorically declared that all questions
including questions relating to the right, title or interest in the property arising
between the parties to a proceeding or on an application under Rule 97 or 99
shall be determined by the court in execution and not by a separate suit (See
Mulla, Code of Civil Procedure, 2017, Vol. I at 641). In N.S.S. Narayana
Sarma v. Goldstone Exports (P.) Ltd., A.I.R. 2002 S.C. 251: (2002) 1 S.C.C.
662, the Hon'ble Supreme Court held that on a fair reading of the rule it is
manifest that the legislature has enacted the provision with a view to remove, as
far as possible, technical objections to an application filed by the aggrieved party
whether he is the decree-holder or any other person in possession of the
immovable property under execution. The legislature has vested the power in the
executing court to deal with all questions arising in the matter, irrespective of
whether the court otherwise has jurisdiction to entertain a dispute of the nature.
This clear statutory mandate and the object and purpose of the provisions should
not be lost sight of by the courts seized of an execution proceeding. The court
cannot shirk its responsibility by skirting around the relevant issues arising in
the case. The position is manifest that when any person claiming title to the
property in his possession is 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 to pass an appropriate order, which under the provisions of Order 21
Rule 103 is to be treated as a decree. The relevant paragraphs of the N.S.S.
Narayana Sarma case (supra) that elucidate on these points are reproduced
hereinbelow -
"15.Provision is made in the Civil Procedure Code for delivery of possession of
immovable property in execution of a decree and matters relating thereto. In
Order 21 Rule 35 provisions are made empowering the executing court to deliver
possession of the property to the decree holder if necessary, by removing any
person bound by the decree who refuses to vacate the property. In Rule 36
provision is made for delivery of formal or symbolical possession of the property in
occupancy of a tenant or other person entitled to occupy the same and not bound
by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain
the provisions enabling the executing court to deal with a situation when a decree
holder entitled to possession of the property encounters obstruction from "any
person". From the provisions in these rules which have been quoted earlier the
scheme is clear that the legislature has vested wide powers in the executing court
to deal with "all issues" relating to such matters. It is a general impression
prevailing amongst the litigant public that difficulties of a litigant are by no means
over on his getting a decree for immovable property in his favour. Indeed, his
difficulties in real and practical sense, arise after getting the decree. Presumably,
to tackle such a situation and to allay the apprehension in the minds of litigant
public that it takes years and years for the decree holder to enjoy fruits of the
decree, the legislature made drastic amendments in provisions in the
aforementioned Rules, particularly, the provision in Rule 101 in which it is
categorically declared that all questions including questions relating to right, title
or interest in the property arising between the parties to a proceeding on an
application under Rule 97 or Rule 99 or their representatives, and relevant to the
adjudication of the application shall be determined by the Court dealing with the
application and not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any other law for the time
being in force, be deemed to have jurisdiction to decide such questions. On a fair
reading of the rule it is manifest that the legislature has enacted the provision
with a view to remove, as far as possible, technical objections to an application
filed by the aggrieved party whether he is the decree holder or any other person in
possession of the immovable property under execution and has vested the power
in the executing court to deal with all questions arising in the matter irrespective
of whether the Court otherwise has jurisdiction to entertain a dispute of the
nature. This clear statutory mandate and the object and purpose of the provisions
should not be lost sight of by the Courts seized of an execution proceeding. The
Court cannot shirk its responsibility by skirting the relevant issues arising in the
case......
19. From the principles laid down in the decisions noted above, the position is
manifest that when any person claiming title to the property in his possession
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 decree and pass appropriate order
which under the provisions of Order 21 Rule 103 is to be treated as a decree...."
(emphasis supplied).
12. The rationale behind such a position was explained by the Hon'ble
Supreme Court in an earlier decision of Shreenath & Anr. v. Rajesh & Ors.,
(1998) 2 S.C.R. 709, which is quoted with approval in N.S.S. Narayana Sarma
(supra), the relevant portion of the Shreenath (supra) decision is reproduced
below -
'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 afresh 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.'
13. However, it is incumbent on the court dealing with the applicable
under Order 21 Rule 97 and 99 to first satisfy itself that the applicants can in
fact maintain and bring such a proceeding before it. Such a caveat is more
explicitly sounded out by the Hon'ble Supreme Court in its decision in H.
Seshadri v. K.R. Natrajan & Anr., (2003) 10 S.C.C. 449, where the Court
observed that -
"14. For the purpose of considering an application under Order 21 Rules 99 and 100
CPC what was required to be considered was as to whether the applicant herein
claimed a right independent of the judgment-debtor or not. A person claiming
through or under the judgment-debtor may be dispossessed in execution of a decree
passed against the judgment-debtor but not when he is in possession of the
premises in question in his own independent right or otherwise." (emphasis
supplied).
14. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., (1998) 3
S.C.C. 723, it is stated that only such questions as would legally arise for
determination between the applicant(s) and the decree-holder could be decided
by the court entertaining the application under Order 21 Rules 97 and 99. The
relevant portion of Silverline (supra) is reproduced below -
"The words "all questions arising between the parties to a proceeding on an
application under Rule 97" would envelop only such questions as would legally
arise for determination between those parties. In other words, the court is not
obliged to determine a question merely because the resister raised it. The
questions which the executing court is obliged to determine under Rule 101, must
possess two adjuncts. First is that such questions should have legally arisen
between the parties, and the second is, such questions must be relevant for
consideration and determination between the parties, e.g., if the obstructer admits
that he is a transferee pendente lite it is not necessary to determine a question
raised by him that he was unaware of the litigation when he purchased the
property. Similarly, a third party, who questions the validity of a transfer made by
a decree-holder to an assignee cannot claim that the question regarding its
validity should be decided during execution proceedings. Hence, it is necessary
that the questions raised by the resister or the obstructer must legally arise
between him and the decree holder. In the adjudication process envisaged in
Order 21 Rule 97(2) of the Code, the executing court can decide whether the
question raised by a resister or obstructer legally arises between the parties. An
answer to the said question also would be the result of the adjudication
contemplated in the sub-section."
15. The aforementioned decisions have clearly stated that as a condition-
precedent for resisting a decree by a third party, it is incumbent upon the said third
party to establish their independent right, title and interest over the said premises,
which exercise, however, has not been carried out in the impugned judgment. It
is equally incumbent upon the executing court to determine and adjudicate only
such questions which should have legally arisen between the parties and such
questions must be relevant for consideration and determination between the
parties and no other question(s).
16. It is trite law that a decree passed without jurisdiction is a nullity
and a void order can be challenged even in a collateral proceeding. Halsbury's
Laws of England, 4th edn. (Re-issue), Vol. 10 summarises the concept of
jurisdiction at para 314. The said paragraph reads:-
"314. Meaning of 'jurisdiction'. By 'jurisdiction' is meant the authority which a
court has to decide matters that are litigated before it or to take cognizance of
matters presented in a formal way for its decision. The limits of the authority are
imposed by the statute, charter or commission under which the court is
constituted, and may be extended or restricted by similar means.
If no restriction or limit is imposed the jurisdiction is said to be unlimited. A
limitation may be either as to the kind and nature of the claims and matters of
which the particular court has cognizance, or as to the area over which the
jurisdiction extends, or it may partake of both these characteristics. If the
jurisdiction of an inferior court or tribunal, including an arbitrator, depends on
the existence of a particular state of facts, the court or tribunal must inquire into
the existence of the facts in order to decide whether it has jurisdiction; but,
except where the court or tribunal has been given power to determine
conclusively whether the facts exist, the correctness of its decision may be
inquired into by means of proceedings for judicial review. Where a court takes it
upon itself to exercise a jurisdiction which it does not possess, its decision amounts
to nothing. Jurisdiction must be acquired before judgment is given." (emphasis
supplied)
Furthermore, in American Jurisprudence, Vol. 32A at para. 581, it is said
that:-
"Jurisdiction is the authority to decide a given case one way or the other.
Without jurisdiction, a court cannot proceed at all in any case;
jurisdiction is the power to declare law, and when it ceases to exist, the
only function remaining to a court is that of announcing the fact and
dismissing the cause."
And, finally, in Indian Farmers Fertilizer Co-Operative Limited v. Bhadra
Products, (2018) 2 S.C.C. 534, it is noted:-
'21. That "jurisdiction" is a coat of many colours, and that the said word
displays a certain colour depending upon the context in which it is
mentioned, is well-settled. In the classic sense, in Official Trustee v.
Sachindra Nath Chatterjee, (1969) 3 SCR 92 at 99, "jurisdiction" is stated
to be:
In the order of Reference to a Full Bench in the case of Sukhlal v. Tara
Chand [(1905) ILR 33 Cal 68] it was stated that jurisdiction may be defined
to be the power of a Court to hear and determine a cause, to adjudicate
and exercise any judicial power in relation to it: in other words, by
jurisdiction is meant the authority which a Court has to decide matters
that are litigated before it or to take cognizance of matters presented in a
formal way for its decision. An examination of the cases in the books
discloses numerous attempts to define the term 'jurisdiction', which has
been stated to be 'the power to hear and determine issues of law and fact',
the authority by which the judicial officer take cognizance of and 'decide
causes'; 'the authority to hear and decide a legal controversy', 'the power
to hear and determine the subject-matter in controversy between parties to
a suit and to adjudicate or exercise any judicial power over them;' 'the
power to hear, determine and pronounce judgment on the issues before
the Court'; 'the power or authority which is conferred upon a Court by the
Legislature to hear and determine causes between parties and to carry the
judgments into effect'; 'the power to enquire into the facts, to apply the
law, to pronounce the judgment and to carry it into execution'.' (emphasis
added)
17. Article 67 of the Limitation Act, 1963 is a special provision which
would apply in a case where a tenant has ceased to be a tenant in terms of the
provisions of the rent -control legislation. A statutory tenant continues to be a
tenant despite termination of tenancy. Article 67 would not be attracted where
tenant remains a statutory tenant (See Kamakshi Builders v. Ambedkar
Educational Society, (2007) 12 S.C.C. 27).
18. Section 27 of the Limitation Act, 1963 is applicable to the cases in
which the adverse possession of property is in question. It is settled law that the
adverse possession must be actual, open, hostile, exclusive and continuous (See
Tribhuvan Shankar v. Amrutlal, (2014) 2 S.C.C. 788).
19. We, however, record that Mr. Dey, the learned Senior Counsel for the
respondents, has submitted that the resistance to the decree is not on the basis
of adverse possession but on the basis that the appellant failed to institute a
proceeding to recover possession from the respondents within a period of 12 years
after the determination of tenancy. We have also noticed that before the Trial
Court the plea of adverse possession was consciously abandoned. The
enforceability of the decree against the respondents is challenged before us on the
strength of Article 67 of the Limitation Act, 1963. The decision in the suit is not
one of inherent lack of jurisdiction. The Trial Court had the jurisdiction to decide
the suit but according to the respondents, the suit could not have been decreed
since the purchaser had lost its right in view of Article 67 of the Limitation Act.
20. Article 67 (old Art. 139) prescribes 12 years' limitation for a suit by a
landlord to recover possession from a tenant, and the starting point for limitation
is the date when the tenancy is determined. It is a well-settled rule of
construction of the Limitation Act that when there is a specific Article dealing
with a specific subject, then that Article is applicable in preference to a general
and residuary Article. When in a suit for possession it is proved that there was a
relationship of landlord and tenant between the parties and that relationship
came to an end, then the limitation for the suit would be regulated by Article 67.
When that Article applies, then the question of whether the possession is adverse
or not does not arise, as held in Shri Mahadeoli Idol v. Dasai, A.I.R. 1964 M.P.
207 at 210.
21. The arguability of a point on the basis of Article 67 of the Limitation
Act, 1963 is to be assessed by the Trial Court, if raised on the basis of the
pleadings and evidence on record. This order should not be construed as an
expression of opinion as to the applicability of the said Article 67 nor does it
express any opinion as to whether the respondents can at all raise the plea of
Article 67 to resist the execution of the decree against the respondents.
22. The property cannot remain in vacuum. It has to settle and devolve
on someone in accordance with the law of the land. The Trial Court shall consider
the application afresh on the basis of the materials and evidence on record in
accordance with law keeping in mind that in an application under Order 21 Rule
101 of the Code of Civil Procedure, 1908, the right, title and interest of the
obstructers vis-a-vis the property in question needs to be decided. The binding
effect of the decree passed against Mr. Dilip Kumar Shaw upon the respondents
is also relevant and requires consideration. The challenge to the decree as a
nullity, if raised, may also be decided if it is found relevant and necessary on the
basis of the materials on record. It is reiterated that the respondents are not
claiming any adverse possession.
23. The impugned order dated March 31, 2014 is accordingly set aside.
24. Before we part with the appeal, we take note of the decision of the
Hon'ble Supreme Court in Babu Lal v. Raj Kumar, (1996) 3 S.C.C. 154, where
it is stated that the objections are prima facie found to be false, frivolous or
vexatious, and were filed only to delay the execution, it would amount to abuse of
process of the court. It is a settled principle of law that it is not incumbent upon
the executing court that it must put to trial every objection which is filed in any
execution proceedings. As stated by the Court in Babu Lal (supra):-
"Now for a considerable period it is not only the judicial trend which has declined
to interfere to protect unlawful possession or possession of rank trespasser etc
but on the other hand, judicial anxiety has been to give effective relief to the
successful parties by expeditious execution of the decree in favour of the parties.
Unnecessary prolongation of litigation sometimes results even in frustrating the
decree itself. Such attempt on the part of the objector to frustrate a decree is a
mischief and has to be prevented by due process of law and expeditious decision
of such ill-founded and frivolous objections and would be in the interest of justice
and within the permissible field of jurisdiction of the execution." (emphasis
supplied).
Therefore, there is an imperative requirement for the purchaser of the property to
be able to enforce a decree in his favour, if he is entitled to it in law, as soon as
possible, since delay in his enjoyment of the decree can end up frustrating the
decree itself. In the present case, the purchaser claims to have acquired the
property in 1991. It is now 2019 - almost 30 years have passed since the
purchaser purchased the property.
1. In such circumstances, we direct the learned Trial Judge to dispose
of the application under Order 21 Rule 101 of the Code of Civil
Procedure, 1908 within four months from the date of
communication of this order by either of the parties. The Trial
judge is directed not to allow any adjournment to either of the
parties unless there are compelling reasons to do so.
The appeal is allowed.
However, there shall be no order as to costs.
(SOUMEN SEN, J.)
I agree.
Ravi Krishan Kapur, J.
