Document Fragment View

Matching Fragments

4. Order 21, Rule 97 provides thus:

''97. Resistance or obstruction to possession of immovable property.--(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.'

5. The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21, Rules 98 to 102. A reading of Order 21, Rule 97 CPC clearly envisages that ''any person' even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or sets up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.

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

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."