Munusamy and Others vs Vengadachalam and Others

R.S. Ramanathan, J.—Respondents 2 to 6 in E.A. No. 240 of 2001 in E.P. No. 185 of 2000 in O.S. No. 460 of 1982 on the file of the III

Additional District Muns if, Puducherry are the Appellants in this civil miscellaneous second appeal.

The suit in O.S. No. 460 of 1982 was filed by the first Respondent herein against one Gundu Govindasa my for declaration of his title and

possession of three pieces of immovable property and the suit was decreed. As per the decree, the Defendant viz., Gundu Govindasa my was

directed to hand over vacant possession of the encroached portion,marked as ''A'' ''B'' and ''C'' in Ex.C2 the surveyor''s sketch,to the Plaintiff. The

said judgment debtor filed appeal in A.S. No. 104 of 1988 challenging the judgment and decree before the Principal District Judge, Pondicherry

and that appeal was dismissed and in Second Appeal No. 1389 of 1989 filed by the judgment debtor before this Court, this Court also confirmed

the finding of the Trial Court and the lower appellate court and dismissed the appeal. There after, the first Respondent herein filed E.P. No. 185 of

2000 to execute the decree and in respect of B and C schedule properties are concerned, there was no dispute and he was able to get possession

of the property and in respect of A portion of the suit property, the Appellants raised objections to the execution and therefore, the decree holder,

the first Respondent herein filed E.A. No. 240 of 2001 under Order 21 Rule 97 for removal of obstruction and that petition was allowed by the II

Additional District Muns if, Pondicherry and as against the same, the Appellants filed appeal in A.S. No. 34 of 2008 and the lower appellate court

also confirmed the finding of the Trial Court and dismissed the appeal. As against the same, the present civil miscellaneous second appeal is filed.

The following substantial questions of law are raised by the Appellant in this appeal:

a) Whether the courts below are justified in directing removal of obstruction even in the absence of proof of title with the first Respondent?

b) Whether the courts below have not over looked the statutory mandate under Order 21 Rule 99, 101 of the CPC and whether its order in not

adverting to title is incomplete?

c) Whether the courts below have not shifted the burden of proof on the Appellants when it is the obligation of the first Respondent to establish

title?

d) In the absence of filing any documents at the instance of the first Respondent are the courts below justified in directing removal of obstruction?

Mr. V. Raghavachari, learned Counsel for the Appellants submitted that the courts below with out appreciating the scope of Order XXI Rule

97 and with out appreciating the fact that the Appellants are claiming to be in possession of the A schedule property on their own right and not

claiming any right through the judgment debtor or his legal heirs and without appreciating the decree obtained by the first Respondent is a nullity

and can not be enforced, dismissed the claim of the Appellant sand therefore, the orders of the court below are liable to be set aside. It is

submitted by the learned Counsel Mr.V. Raghavachari that the case of the first Respondent/decree holder was that the suit property issituate in

Cadaster No. 492 and is correlated to new field No. 152/5 and Cadaster No. 492 BIS is correlated to new field No. 152/4 and even as per the

Commissioner''s plan, Exs.C1and C2, ''A'' portion marked in the said plan comes within Cadaster 492 BIS equivalent to new field No. 152/4 and

the decree holder did not claim any right over Cadaster 492 BI Sand he claims right only in respect of Cadaster 492 which his new field No.

152/5 and therefore, by practising fraud on the court below, he obtained a decree in respect of A portion of the property and hence, the decree

obtained by the decree holder/first Respondent is a nullity and the Appellants, being third parties to the proceedings, are entitled to question the

same. In other words, the learned Counsel Mr. V. Raghavachari submitted that the first Respondent/decree holder has no right or title over A

schedule item of property and without appreciating the fact that A item falls within 492 BIS equivalent to new field No. 152/4, all the courts

granted decree in favour of the decree holder and under Order XXI Rule 97 of the Code of Civil Procedure, all right and title to the suit property

can be decided and the Appellants are challenging the right and title of the decree holder to A portion of the property and therefore, the title of the

decree holder in respect of A portion has to be decided and without deciding the same,the court below allowed the application filed by the decree

holder and dismissed the appeal filed by the Appellants. He further submitted that the surveyor''s sketch which was marked as Ex.C2 before the

court below would also make it clear that A portion falls within Cadaster 492 BIS and admittedly, the decree holder never claimed any right over

Cadaster 492 BIS equivalent to new field No. 152/4 and there fore, in the absence of any title to the said portion,the decree holder is not entitled

to execute the decree against the Appellants and the Appellants, being third party, they are entitled to challenge the title of the decree holder.

The learned Counsel for the Appellants further submitted that under Order XXI Rule 97, when some persons are obstructing the execution of

decree and those persons are not claiming any right through the judgment debtor or through his transferees or legal representatives, the courtought

to have decided the right and in this case, the Appellants have produced Exs.R1 to R45 to prove their possession in respect of some portion of A

item of the property and they are not claiming any right through the judgment debtor and the courts below, without appreciating the same, simply

rejected the contention of the Appellants on the ground that they are the close relatives of the judgment debtor and therefore, they cannot claim any

individual right over A portion of the property. The learned Counsel for the Appellants also relied upon the following judgments of the Honourable

Supreme Court:

1) Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another,

2) Shreenath and Another Vs. Rajesh and Others,

On the other hand, learned Counsel for the first Respondent/decree holder submitted that the decree holder obtained decree in the year 1988

and the same was confirmed in the year 2000 and for the past 22 years, the decree holder is not able to enjoy the fruits of the decree and this

Court in Second Appeal confirmed the decree passed by the Trial Court holding that the decree holder is entitled to ''A'' ''B'' and ''C'' portion

marked in the Commissioner''splan as stated in the decree and this application is a clear abuse of process of court. In support of his contention, he

relied upon the following judgments:

1) Dalip Singh Vs. State of U.P. and Others,

A reading of the substantial questions of law would make it clear that the Appellants are challenging the decree on the sole ground that the

decree holder has no title to A portion of the suit property and therefore, he is not entitled to execute the decree in respect of Aportion and in their

application under Order XXI Rule 97 of the Code of Civil Procedure, the court ought to have decided the title of the Plaintiff/decree holder to the

suit property when the same is questioned by the third party obstructors and without proving his title, the decree holder is not entitled to execute

the decree.

Mr. Raghavachari, learned Counsel for the Appellants brought to my notice the new surveyor''s plan which was also marked before the court

below and contended that the specific case of the decree holder, the Plaintiff was only in respect of Cadaster 492 and he never claimed any right in

respect of Cadaster 492 BIS which is equivalent to new field No. 152/4 and it is seen from the Surveyor''s sketch, Aportion lies within Cadaster

492 BIS equivalent to new field No. 152/4 and therefore, the decree holder cannot claim title over the same and by practising fraud, he has

obtained decree in respect of A portion and therefore, it can not be executed. He further submitted that being a third party to the decree, the

obstructors are entitled to question the title of the decree holder to the suit property and that title has to be determined in the proceedings under

Order XXI Rule 97 of the CPC and without deciding the same, the court should not have proceeded further.

To appreciate the contention of the learned Counsel for the Appellants, we have to see the provisions under Order XX1 Rule 97 of the Code of

Civil Procedure. Order XXI Rule 97 and 101 reads as follows:

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.

.....

Questions to be determined 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 bed

etermined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall not with standing anything to the

contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

Therefore, a reading of Order XXI Rules 97 and 101 will make it clear that when a decree is sought to be executed by the decree holder if

any person obstructs to the execution of the decree in obtaining possession of the property, the decree holder may make an application to the

court complaining of such resistance or obstruction and asper Order XXI Rule 97(2), when such application is made, the court shall proceed to

adjudicate the application and as per Order XXI Rule 101 of the Code of Civil Procedure,all the questions including the question relating to right,

title or interest in the property arising between the parties to the proceedings shall be determined by the court dealing with the application and not

by a separate suit.

The provisions of Order 21 Rule 97 to 99 and 101 were interpreted by the Honourable Supreme Court in Brahmdeo Chaudhary, Adv. Vs.

Rishikesh Prasad Jaiswal and another, . The Honourable Supreme Court while interpreting Order XXI Rule 97 to 99 and 101, held as follows:

A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following picture:

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be

executed in the normal manner by obtaining warrant for possession under Order 21 Rule 35 then the decree-holder has to move an application

under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate

orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, Sub-rule (2) read with Order 21, Rule 98. It

is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor

or by some other person at his instigation or on his behalf then such obstruction or resistance would bere moved as per Order 21, Rule 98, Sub-

rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a

decree under Order 21, Rule 101 and no separate suit would lie against such order meaning there by the only remedy would be to prefer an

appeal before the appropriate appellate court against such deeed decree.

....

In short the aforesaid statutory provisions of Order 21 lay down acomplete code for resolving all disputes pertaining to execution of the decree

for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered

by apurported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to

the decree-holder against such an obstructionist is only under Order 21 Rule 97, Sub-rule (1) and he cannot bypass such obstruction and insist on

re-issuance of warrant for possession under Order 21,Rule 35 with the help of police force,as that course would amount to by passing and

circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree.

Once such an obstruction is on the record of difficult executing the executing to appreciate Court can Court how tell it is the such obstructionist that

he must first lose possession and then only his remedy is to move an application under Order 21,Rule 99, Code of CPC and pray for restoration of

possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree

who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the HighCourt on the

aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and

interest in the decretal property can offer his resistance before getting gactually dispossessed. He can equally agitate his grievance and claim for

adjudication of his independent right,title and interest in the decretal property even after losing possession asper Order 21, Rule 99. Order 21,

Rule 97deals with a stage which is prior to theactual execution of the decree for possession wherein the grievance of the obstructionist can be

adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent

stage in the execution proceedings where a stranger claimingany right, title and interest in the decretal property might have gotactually dispossessed

and claimsrestoration of possession on adjudication of his independent right,title and interest dehors the interest of the judgment-debtor. Both these

types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of

Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it

if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the

High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the

decree lies under Order 21, Rule 99 and he has no locus standito get adjudication of his claim priorto the actual delivery of possession to the

decree-holder in the execution proceedings. The view taken by the HighCourt in this connection also results inpatent breach of principles of natural

justice as the obstructionist, whoalleges to have any independent right,title and interest in the decretalproperty and who is admittedly not aparty to

the decree even though making agrievance right in time before the warrant for execution is actually executed, would be told off the gates and his

grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-

holder. That would obviously result in irreparable injury to such obstructionist whose grievance would gooverboard without being considered on

merits and such obstructionist would becondemned totally unheard. Such an order of the executing Court, therefore, would fail also on the ground

of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97, Code of CPC as

discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to

have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the

hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that

multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 and 103 would remain a

complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings

themselves.

Again in the judgment in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , it has been held as follows:

When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while

making adjudication, the Court is obliged to determine only such question as may bearising between the parties to aproceeding on such complaint

and that such questions must be relevant to the adjudication of the complaint.(Italicssupplied) 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 resistor raised it. The questions which 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 obstructor admits that he is a

transferee pendentelite it is not necessary to determine aquestion raised by him that he wasunaware of the litigation when he purchased the

property. Similarly, at hird 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 bedecided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the

obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97 (2) of the Code, the

execution Court can decide whether the question raised by are sistor or obstructor legally arises between the parties. An answer to the said

question also would be the result of the adjudication contemplated in the Sub-section.

(Italics supplied)

In the judgment in Shreenath and Another Vs. Rajesh and Others, , it has been held as follows:

So far Sub-clause (1) of Rule 97 the provision is same but after 1976 amendment all disputes relating to the property made under Rules 97

and 99 is to be adjudicated under Rule 101, while under unamended provision under Sub-clause (2) of Rule 97, the Executing Court issues

summons to any such person obstructing possession over the decretalproperty. After investigation under Rule 98 the Court puts back a decree-

holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a

person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree-holder application. Thus

even prior to 1976 right of any person claiming right on his own or as a tenant, not party to the suit such person''s right has to be adjudicated under

Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a longlitigation. So a tenant or any person claiming a right in the

property, on his own, if resists delivery of possession to the decree-holder the dispute and his claim has to be decided after 1976 amendment

under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. However,under the old law, in case order is

passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he has to file a suit to

establish his right. But now after the amendment one need not file suit even in 23 such cases as all disputes are to be settled by the Executing Court

itselffinally under Rule 101.

We find both either under the old law or the present law the right of atenant or any person claiming right on his own of the property in case

heresists, his objection under Order 21, Rule 97, has to be decided by the Executing Court itself.

In the judgment in N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, , theHonourable Supreme Court upheld

the judgment reported in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, and also followed the judgment in Anwarbi Vs. Pramod D.A.

Joshi and Others, and held that

the obstructionist in possession canonly be dispossessed in accordance with law - person in possession of immovableproperty claiming legal

entitlementthereto and obstructing execution ofdecree for possession may not bedispossessed till his rights are 24 adjudicated in appropriate

proceedings. The decree-holder cannot take possessionunless such proceedings terminate in hisfavour.

In the judgment in ASHAN DEVI v. PHULWASI DEVI (AIR 2004 SC 511), the judgment rendered in Shreenath and Another Vs. Rajesh

and Others, and the judgmentin Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, were followed and it has been held as follows:

In interpreting the provisions ofO.XXI, R.97 of the Code and the otherprovisions in the said order, the aims and objects for introducing

amendment to the Code cannot be lost sight of. Under the unamended Code, third partiesadversely affected or dispossessed from the property

involved, were required to file independent suits for claiming title and possession. The Legislaturepurposely amended provisions in O.XXI to

enable the third parties to seek adjudication of their rights in execution proceedings themselves with view to curtail the prolongation of litigation and

arrest delay caused in execution of decrees.

Therefore, from the above judgments, it has been made clear that in an enquiry Under Order XXI, Rule 97, the court has to decide the rights

of the obstructors who are in possession of the property and there is no need to go into the title of the decree holder even though the same is

questioned by the obstructor. As held in the judgmentreported in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , the questions which the

Executing Court is obliged to determine under Rule 101 must possess two adjuncts. The first is that such dispute should have legally arisen

between the parties, and the second is, such questions must be relevant for consideration and determination between the parties. Further, in the

said judgment, it has been made clear by the Honourable Supreme Court that a third party, who questions the validity of a transfer made by a

decreeholder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Further, in the

judgment reported in Anwarbi Vs. Pramod D.A. Joshi and Others, , it is made clear that an obstructor cannot be dispossessed till his rights are

adjudicated in appropriate proceedings. In the decision reported in AIR 2004 SC 511 also it has been made clear that the legislator purposely

amended the provisions in Order XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a

view to curtail prolongation of litigation and arrest the delay caused in execution of decrees.

Therefore, it has been made clear by the Honourable Supreme Court that in an enquiry under Order XXI Rule 97, when an obstructor objects

to the delivery of possession by the decree holder, claiming in dependent right, the court has to find out whether the obstructor has got any legal

right to be in possession of the property and if the court comes to the conclusion that he has got every right to be in possession of the property, the

court can pass orders to that effect and dismiss the application filed by the decree holder and in that proceedings, the court cannot go into the

legality of the decree passed infavour of the decree holder at the instance of the obstructor. Therefore, the substantial question of lawraised by the

Appellants that the decree obtained by the first Respondent/decree holder is nullity and he has no right or title to A portion of the property and that

question has to be gone into execution proceedings can not be accepted. The substantial questions of law raised by the Appellants are decided

against them.

It is submitted by the learned Counsel Mr.V. Raghavachari that a third party can question the validity of the decree or the enforceability of the

decree in an application under Order XXI, Rule 97 and the right of the third party to question the same cannot be curtailed. He further submitted

that in case the decree holder and the judgment debtor colluded and obtained a fraudulent decree,that cannot be enforced against a third party

whose right sare affected and therefore, the third party, who is having interest in the property is entitled to question the validity of the decree.

Though the argument appears to be attractive in the first instance, according to me, the argument of the earned Counsel for the Appellants

cannot be accepted for the simple reason that before questioning the validity of the decree obtained by the decree holder, the obstructorhas to

prove that he has got an enforceable right or interest in the property. Without proving his title or interest in the property, a third party, who is

squatting on the property, cannot question the validity of the decree. In this case, both the courts below have concurrently held that the Appellants

have not proved their entitlement to be in possession of the property and they came into possession of the property after the decree was passed in

O.S. No. 460 of 1982. Hence, it cannot be stated that the Appellants are entitled to challenge the validity of the decree obtained by the decree

holder.

The courts below concurrently held that the Appellants are closely related to the judgment debtor and his legal heirs and they are the son-in-

law and daughter-in-law of the legal heirs of the judgment debtor and though they have filed 45 documents, the documents produced by them will

not prove any right over the suit property. Att his juncture, it is pertinent to mention that in para 44 and 45 of the judgment of the lower appellate

court, the lower appellate court, after going through various Exhibits filed by the obstructors, came to the conclusion that all the Exhibits marked by

the obstructors are after the disposal of the second appeal and they have not produced any documents to prove their title over the property prior

to 1982 and the documents produced by them will not prove their title or entitlement to be in possession of the property and they have also not

stated as to how they derived title and possession over the suit property. Therefore, as rightly held by the courts below, the Appellants, having not

proved their right to be inpossession of the property or their entitlement to be inpossession of the property, cannot obstruct the decree being

executed by the decree holder.

Further, as rightly pointed out by the learned Counsel for the first Respondent, this is a clear case of abuse of process of court and as held by

the Honourable Supreme Court in the judgment reported in Dalip Singh Vs. State of U.P. and Others, , such a litigation should not be encouraged.

Further, in the judgment reported in 2003 1 LW 475, this Court has held as follows:

The right of an innocent and genuine occupant as an obstructor is recognised under Order 21, Rule 97 Code of CPC But such a right cannot be

converted into a tool in the hand of high handed and self seeking persons/Judgment debtors in order to defeat the rights of the parties and to render

the decrees and orders of the Court nothing more than pieces of 30 paper. Order 21, Rule 97 C.P.C is intended to protect a person who is

genuinely in possession of the property claiming independent rights. That is why under Order 21, Rule 101 C.P.C the Court is required to go into

all allegations of title, right and interest as if it is a suit by itself. But the most important feature to be borne in mind is Rule 102 which is squarely

applicable to the facts of the present case. The provisionsrelating to the resistance or obstruction to possession of immovableproperty will not

apply to obstruction by a person to whom the judgment debtor had transferred the property pendente lite.

Therefore, considering all these aspects, I do not find any merit in the civil miscellaneous second appeal. In the result, the second appeal is

dismissed. No costs. The connected miscellaneous petition is also dismissed.