In C.A. Nos. 3758-3796-SC- Rules 98 & 100 of Order XXI CPC would not apply to resistance/obstruction in execution of decree for possession of immovable property by person to whom judgment-debtor has transferred property after institution of suit in which decree was passed: SC
Justices A.S. Bopanna & Dipankar Datta [16-05-2023]

Read Judgment: Jini Dhanrajgir & Anr v. Shibu Mathew & Anr. Etc 

Tulip Kanth

New Delhi, May 17, 2023: The Supreme Court has clarified that if there is any resistance offered or obstruction raised impeding due execution of a decree made by a court of competent jurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI of CPC enable the executing court to adjudicate the inter se claims of the decree-holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by driving the parties to institute independent suits. 

Referring to the judgment in Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal, the Bench said, “No wonder, the provisions contained in Rules 97 to 106 of Order XXI of the CPC under the sub-heading “Resistance to delivery of possession to decree-holder or purchaser” have been held by this Court to be a complete code in itself in Brahmdeo Chaudhary (supra) as well as in a decision of recent origin in Asgar vs. Mohan Verma”,the Division Bench of Justice A.S. Bopanna and Justice Dipankar Datta asserted.

The facts of this case were such that the original plaintiff, instituted a suit against the defendant and his sons  for declaration of title in respect of land measuring in excess of 2.81 acres in Village Nattakom located in Kerala and recovery of possession with mesne profits from the Defendants. Challenging the dismissal of the Suit, the original plaintiff approached the High Court.

The defendant passed away and the proceedings before the High Court continued with his sons contesting the appeal. Later upon remand, the Suit was decreed in favour of the plaintiff and the Defendants were directed to put the plaintiff in possession of the Suit Property but when the defendant filed a suit, the plaintiff was asked to deposit Rs 25,99,250 as compensation in lieu of part-payment of the purchase consideration, after which the Defendants would surrender vacant possession of the decretal property to her.

When subsequent events followed, one of the defendants was conferred the status of a cultivating tenant. The Executing Court accepted the Appellants’ prayers for delivery of the decretal property and the Respondents raised objectors filed multiple objections in the main execution proceedings objecting to the execution of the Decree and refusing to give possession to the Appellants.

The appellants approached the Top Court challenging the interim order of the Executing Court filed by the Appellants, seeking enforcement of the decree and removal of resistance put forth by the contesting respondents.

Referring to Section 47 of the CPC, the Bench opined that it is one of the most important provisions relating to execution of decrees which mandates that the court executing the decree shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit. 

What is intended by conferring exclusive jurisdiction on the executing court is to prevent needless and unnecessary litigation and to achieve speedy disposal of the questions arising for discussion in relation to the execution, discharge or satisfaction of the decree. 

The Bench further opined that if any resistance is offered or obstruction is raised impeding due execution of a decree made by a court of competent jurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI enable the executing court to adjudicate the inter se claims of the decree-holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by driving the parties to institute independent suits.

The Top Court referred to its judgments in Bhanwar Lal vs. Satyanarain, Noorduddin v. Dr. K.L. Anand, Babulal v. Raj Kumar & Ors., Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr. and said, “...it is indeed true that in terms of the ordainment of Rule 102 of Order XXI, Rules 98 and 100 thereof would not apply to resistance or obstruction in execution of a 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 in which the decree was passed.”

Noting that the Suit instituted by the plaintiff was initially dismissed and upon an appeal being preferred, the Suit was restored to the file of the trial court by the order of the High Court, the Bench opined that if there had been transfers post dismissal of the Suit during the time when there was no pending lis, it would be most appropriate for the Executing Court to determine the question as to whether any of the transfers made by the defendants to the Respondents would attract Rule 102. 

“This would indeed involve an exercise of leading of evidence by the parties and merely because the Suit was ultimately decreed on 21st October 2000 and ultimately was upheld by this Court with a minor modification of the amount of compensation, that would not be sufficient justification to throw out the objections raised by the Respondents as being devoid of merit”, the Bench said.

The Bench observed that the claim regarding right, title and interest in respect of their respective shares in the decretal property, as raised by the Respondents, cannot be thrown out at the threshold since it is well within their rights to contest the application under Order XXI Rule 97, CPC filed by the Appellants.  

The Top Court held that the Executing Court would proceed to deal with the application of the Appellants under Rule 97 of Order XXI of the CPC together with the objections raised by the Respondents on their own merits and without being influenced by any observation made in this order which has been necessitated only for disposal of the present appeals.

Thus, dismissing the appeals, the Bench asked the Executing Court to proceed to decide the contentious issues in accordance with law as early as possible without granting unnecessary adjournments to any of the parties.