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Showing contexts for: Collusive decrees in Paramound Industries vs C.M. Malliga on 29 June, 1990Matching Fragments
It is also not possible to agree with the view expressed by the Full Bench in Smt. Usha Jain's case that Rule 35 of Order 21 does not contemplate an enquiry when Sub-rule (1) of Rule 35 of Order 21 of the C.P. Code specifically provides that:
"If necessary by removing any person bound by the decree who refuses to vacate the property."
Thus the executing Court can deliver possession if there is obstruction by a person who is bound by the decree by removing such a person. On the contrary, if there is obstruction or resistance by a person who is not made a party to the decree and who claims that he is not bound by the decree and he is in possession of the property, the delivery of which is sought, in his own right, the executing Court, without deciding such claim, cannot dispossess him and deliver the property to the decree-holder/auction purchaser. It is a very poor solatium to a person who is in possession of a property in his own right to tell him that he can have his right, title and interest in the property decided after he is dispossessed. It would be nothing but travesty of justice. When the person in possession of immoveable property claims that he is not bound by the decree because he is in possession in his own right, to tell him that the Court cannot examine his contention and it with execute the decree and dispossess him and thereafter he could file a suit and establish his title, is opposed to the very civilised notions of civil rights of the citizen which include a right, title and interest in, and to immoveable property. This would result in obtaining collusive decrees and dispossessing the persons in possession of immoveable property in their own right. This will also result in abusing the process of the Court. The endeavour of the Court must be to safeguard against such abuse of the process of the Court so as to avoid any injustice being caused to any party by the acts of the Court, in other words, by reason of exercise of jurisdiction by the Court or by the use of the process of the Court.