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i) Were the courts below justified in holding that while dealing with a petition under Order 21 R. 97 C.P.C. the executing court is not entitled to go behind the decree to record a finding as to whether the plaintiff/decree holder is entitled to delivery of possession as against a stranger obstructor ?

ii) In proceedings under Order 21 Rule 97 C.P.C. whether the courts below were justified in taking the view that where the delivery is obstructed by a stranger claiming a right independent of the judgment debtor, the burden is on the obstructer to prove that he has a better title than that of the decree holder ?

11. The further question is whether the executing Court, in  an adjudication under Order 21 Rule 101 C.P.C., need only call upon the resistor or obstructor to show that he has a better title than that of the decree-holder or auction purchaser. As early as in 1978 in Mammoo v. Krishnan 1978 KLT 901 a learned Single Judge of this Court had observed as follows:

"The Indian Code generally does not enable a stranger to the suit to come on the party array on his own motion without the consent of the plaintiff, and his remedy lies in resisting and obstructing his dispossession whereupon the decree holder has to move the execution court for removal of resistance and obstruction. The court is then called upon to decide the respective rights of the obstructor and the decree holder in respect of the property to deliver possession of which, warrant has been issued".

14. Again in Anwarbi v. Pramod D.A. Joshi and Others

- (2000) 10 SCC 405 - the following observation made by the Supreme Court are apposite:

"In view of the obstruction so caused it was for the decree-holder to take appropriate steps under Order 21 Rule 97 for removal of the obstruction and to have the rights of the parties including the obstructionist adjudicated under the provisions of Order 21 Rule 101".

15. There is nothing in the decision in Brahmdeo Chaudhary's Case (Supra) to indicate that what has to be adjudicated upon is only the right, title and interest of the obstructionist or that title of the decree holder is the decree itself and the court cannot go behind the decree. The proposition that the decree itself is the title of the decree-holder may be valid as between the parties to the decree or their privies but not against strangers to the decree. The argument that the executing court cannot go  behind the decree is not available to the decree holder or auction purchaser in the case of an adjudication under Order 21 Rules 97 to 101 C.P.C. It is relevant to note that the authority given to the court under Rules 98 and 100 of Order 21 C.P.C. includes a power to put the decree holder or auction purchaser (who are the applicants under Order 21 Rule 97 C.P.C.) or the stranger obstructor ( who is the applicant under Order 21 Rule 99 C.P.C.) to be put in possession of the property. It is such an order passed under Rules 98 or Rule 100, as the case may be of Order 21 C.P.C. which will be deemed to be decree and which will be executable and appealable. Such an order supercedes the earlier decree to which the stranger obstructor was not a party.

16. A perusal of the orders under appeal will go to show that the courts below proceeded as if they cannot go behind the decree and that the only enquiry which was contemplated was as to whether the obstructor has made out his claim in support of the obstruction. It is pertinent to  note that the claimants in this case are not claiming under the judgment debtors or at their instigation but instead they were setting up independent claims. If in the adjudication of such a claim the court were to merely call upon the obstructor to establish his case , then there could be situations wherein a person in actual possession under a valid title could be thrown out of the property by another person obtaining a decree for possession not against the person who is in actual possession under a valid title but against somebody who may have a semblance of title and it will be travesty justice if the person in actual possession under a lawful title were to be ejected without examining the title of the person who seeks to dispossess or eject such person. That explains the language used by the legislature under Rule 101 of Order 21 to indicate that all the questions including the questions relating to right, title or interest in the property arising between the parties to the proceeding, are to be determined by the Court. Incidentally, it is pertinent to remember that the position of  an obstructor as in this case would be analogous to the position of a defendant in a suit for recovery of possession on the strength of title and the enquiry in such a proceeding should be not to consider whether such a person has better tile over the person who seeks recovery of possession. The enquiry should be as to whether the person who seeks to displace or dispossess or eject the person who is admittedly found in possession has sufficient title qua the person in possession so as eject him from the property. The enquiry in this case should have been primarily in that direction , particularly, in a case as the present where both the preliminary as well as final decree were obtained ex-parte without a contest. This is not to say that after such adjudication the Court is precluded from finding that the obstructor is in occupation under the J.D. or is claiming under a title created by the J.D. or was inducted into possession pendente lite or that the obstruction was at the instance of or on behalf of the J.D. or that the obstructor is a pendente lite transferee. But  the enquiry should be to find out whether the decree holder has sufficient title de hors the decree to dispossess or eject the obstructor. I am inclined to give the decree holders an opportunity to prove that they have sufficient title to dispossess the appellants herein and get delivery of the property in pursuance of the final decree passed on 8-10- 1976. The substantial questions of law are answered in the negative and in favour of the appellants. The impugned judgments are, accordingly, set aside and the matter is remanded to the trial court for fresh adjudication in the light of the legal position adverted to. The parties shall appear before the trial Court without any further notice on 19-12-2008. The Executing Court shall make an endeavour to dispose of the matter expeditiously.