Sameer Dinkarrao Javalekar vs Gulab Haribhau Ladkat (Since Decd) Through Lrs. And Ors.

CNR No : HCBM010239112015

2026:BHC-AS:42341
Renuka cra-394-2015.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 394 OF 2015
WITH
WRIT PETITION NO. 5401 OF 2015
WITH
CIVIL APPLICATION NO. 415 OF 2015
IN
CIVIL REVISION APPLICATION NO. 394 OF 2015
Sameer Dinkarrao Javalekar ...Petitioner/Applicant
V/s.
1) Gulab Haribhau Ladkat) Since
Deceased through their legal heir)
1(a) Deepali Gulab Ladkar (since
deceased through Legal heir)
1(b) Shashank Gulab Ladkat since
deceased through Legal heir)
1(b)(i) Varsha Shashank Ladkat
1c) Shailaja Gulab Ladkat (since
deceased through her legal heirs)
1(c)(i) Varsha Shashank Ladkat
2) Ashok Haribhau Ladkat (since
deceased through his legal heirs)
2(a) Mangal Ashok Ladkat
2(b) Amit Ashok Ladkat
2(c) Tushar Ashok Ladkat
2(d) Sameer Ashok Ladkat
3) Chandrakant Haribhau Ladkat
(Since Deceased through his legal
heirs)
3(a) Kalpana Chandrakant Ladkat
Page No. 1 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

3(b) Charushila Amol Ekatpure
3(c) Vrushali Rohan Borate
3(d) Mayur Chandrakant Ladkat
4) Madhukar Haribhau Ladkat (since
deceased through his legal heirs)
4(a) Vatsala Madhukar Ladkat
4(b) Poonam Vijay Shirsat
4(c) Seema Prashant Sathav
4(d) Sonal Nandkumar Hole
... Respondents
5) Pune Fuel Merchants Association
Ltd
________________
Mr. Yuvraj Narvankar with Ms. Raufa Shaikh and Mr. Kshitij Munj for
Applicant/Petitioner.
Mr. Rahul Soman with Mr. Suyash More for Respondent Nos. 1 to 3.
________________
CORAM: SANDEEP V. MARNE, J.
Reserved On: 29 SEPTEMBER 2026.
Pronounced On: 16 OCTOBER 2026.
JUDGMENT:
1) The phrase “ The difficulties of a litigant in India begin when he
has obtained a decree " was first observed by the Privy Council back in the
year 1872 in General Manager of the Raj Durbhunga Versus. Coomar
1
Ramaput Sing and tragically, the observations made centuries ago is
still a reality. The delay in Court systems and the subsequent struggle to
execute decrees is a well recognised systemic issue in the legal system. In
Periyammal (dead) Through Legal Representatives and Ors. Versus V.
2
Rajamani and Anr. , the Apex Court has highlighted the fact that
1
1872 SCC OnLine PC 16
2
(2025) 9 SCC 568
Page No. 2 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

winning a civil suit is only half the battle, as successful litigants are
frequently deprived of the fruits of their decree due to complex
procedural hurdles and intentional obstructions during execution
proceedings. This is one such unfortunate case where the landowner is
fighting a court battle for the last 63 long years and despite succeeding in
the suit and securing an eviction decree on 14 August 1974, he/his legal
heirs are still waiting for enjoying the fruits of the decree. The landowner
is kept engaged in a maze of jurisdictional objections both by the original
lessee and also by the obstructionist. The Revision Applicant/Petitioner,
who has presented obstruction to execution of the decree, has
successfully delayed the execution proceedings for the last 33 long years.

2) These proceedings arise out of obstruction presented by the
Petitioner/Applicant to execution of the decree dated 14 August 1974
passed by the District Judge, Pune in Civil Suit No. 8 of 1968. When the
decree was put in execution and the bailiff visited the suit property for
execution of warrant of possession, the Petitioner/Applicant submitted
his objections in writing through an application made to the bailiff. The
Executing Court took cognizance of the objections and directed that the
same be treated as an Application filed under Order XXI Rule 97 of the
Code of Civil Procedure, 1908 ( Code ). In that Application,
Petitioner/Applicant preferred Application at Exh-122 under Section 47
of the Code seeking dismissal of execution proceeding on the ground
that decree is a nullity and is not executable on account of it being
passed by a Court having no jurisdiction. The Application at Exh-122 is
rejected by the Executing Court by order dated 14 July 2015, which is
Page No. 3 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

subject matter of challenge in the Civil Revision Application No. 394 of
2015.
3) The Petitioner/Applicant filed Application at Exh-115
seeking a direction for not permitting the Decree Holder to lead evidence
on account of failure to file a reply to the Application under Order XXI
Rule 97 of the Code. The Application at Exh-115 has been rejected by the
Executing Court by order dated 9 June 2015, which is the subject matter
of challenge in Writ Petition No. 5401 of 2015.
4) Since both the Revision Application as well as Writ Petition
arise out of common proceedings, the same are being heard and decided
analogously.
5) A very brief narration of the facts would be necessary for
better understanding of the issue at hand. The land and property bearing
sub-plot Nos. 1, 2, 9 and 10 out of final Plot No. 25 in Somwar Peth, 421
New Mangalwar Peth, Pune-411 011 is the suit property. The property
was agricultural land owned by Mr. Haribhau Savalaram Ladkat. By Lease
Deed dated 1 June 1944, the suit property was let out to Poona Fuel
Merchants Association Ltd. ( Poona Fuel ) at a monthly rent of Rs.
112.50/-. Under the Lease Deed, the lessee was permitted to erect sheds
over the suit property for the purpose of storing of coal. Liquidation
proceedings were initiated against Poona Fuel and the same were
pending in District Court, Pune in the form of I.C. Misc Application No. 7
of 1953. Since there were arrears of rent, the landlord-Haribhau
Savalaram Ladkat filed Suit No. 3137 of 1954 in the Small Causes Court,
Page No. 4 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

Pune seeking possession of the suit property on the ground of arrears of
rent and subletting. The suit was transferred to Civil Court and was
renumbered as Suit No. 810 of 1955. On 23 January 1956, the Plaintiff
and the liquidator of Poona Fuel settled Suit No. 810 of 1955 and Poona
Fuel continued as tenant after clearing arrears of rent.
6) On 1 May 1956, Poona Fuel once again fell in arrears of rent.
The landlord terminated the tenancy by notice dated 26 November 1956
with effect from 31 December 1956. On 27 July 1962, the District Court
granted leave to the landlord to file suit against the liquidator of Poona
Fuel. Accordingly, the landlord filed Suit No. 1827 of 1963 in the Court of
Small Causes, Pune seeking eviction of Poona Fuel and recovery of
arrears of rent under the provisions of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 ( Bombay Rent Act ). The suit was
renumbered as Suit No. 725 of 1964. However, Poona Fuel raised an
objection to the jurisdiction contending that the property let out was
agricultural land and therefore, Small Causes Court did not have
jurisdiction. By order dated 16 August 1967, the Court held that the
property was agricultural land on the date of lease and that therefore,
the same was not "premises” under the Bombay Rent Act and that
therefore the Court had no jurisdiction. The plaint was accordingly
ordered to be returned by order dated 16 August 1967. Upon return of
plaint, the same was presented in the District Court, Pune under Section
446 of the Indian Companies Act, 1956 on 7 October 1968 and the same
was registered as Civil Suit No. 8 of 1968. The liquidator of Poona Fuel
filed a written statement in which an objection of jurisdiction was raised
contending that District Court had no jurisdiction because the property
Page No. 5 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

let out was agricultural land. Though, preliminary issue of jurisdiction
was framed, the liquidator of Poona Fuel did not press the objection by
filing a pursis. The learned District Judge decreed Civil Suit No. 8 of 1968
on 14 August 1974. The objection of jurisdiction was decided against the
Defendant holding that provisions of Bombay Rent Act did not apply to
the suit property. The Defendant was directed to deliver vacant
possession after removing the structures alongwith an inquiry in the
mesne profits. Poona Fuels filed First Appeal No. 726 of 1974 in this
Court and by judgment and order dated 2/3 August 1982, this Court
dismissed First Appeal No. 726 of 1974 and confirmed the eviction
decree. Shortly thereafter original Plaintiff-Haribhau passed away in
1984. Similarly, liquidator of Poona Fuel Mr. N. B. Sathe also passed away
on 16 May 1986 and Nazir of the Court was appointed in place of
liquidator on 25 October 1994. It appears that Darkhast No. 1 of 1988 was
earlier filed for execution of the decree.
7) In the year 1993, Darkhast No. 10 of 1993 was filed by legal
heirs of Haribhau vi z. Chandrakant, Ashok, Gulab, Vijaykant and
Chandrabhagabai. One son of Haribhau viz . Madhukar did not sign the
Darkhast and was thereafter joined as formal Respondent in Darkhast
proceedings. By order dated 5 February 2001, warrant of possession was
issued. Bailiff’s report dated 12 February 2001 reported obstruction by
the occupants in the suit property. It appears that objections by14
obstructions were filed with the bailiffs and by order dated 3 September
2007, the District Court registered the said applications as the one filed
under Order XXI Rule 97 of the Code with further direction to decide the
Page No. 6 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

same by treating them as one suit. Applicant/Petitioner was one of the
obstructionist, who was found occupying part of the suit property.
8) This is how obstruction presented by the
Petitioner/Applicant came to be treated as Application under Order XXI
Rule 97 of the Code. He filed affidavit of evidence claiming that he was
inducted as a tenant by Madhukar Ladkat ( who had not signed the
Darkhast and who was impleaded as Judgment Debtor No. 2 ). It was
claimed by Petitioner/Applicant that he was in possession of premises
admeasuring 700 Sq. Ft. in sub plot No. 10. He relied on various rent
receipts including the one issued on 4 January 1999 by Madhukar. On 20
January 2015 Applicant filed affidavit of evidence. On 24 April 2015,
Application at Exh-115 was filed by the Petitioner/Applicant for not
permitting Decree Holders to lead evidence for want of pleadings. By
order dated 9 June 2015, the Executing Court has rejected Applicant's
Application at Exh-115. Order dated 9 June 2015 passed by the Executing
Court on application at Exhibit 115 is subject matter of challenge in Writ
Petition No. 5401 of 2015.
9) The Petitioner/Applicant also filed Application at Exh-122
under Section 47 of the Code seeking dismissal of execution proceedings
on the ground that decree is nullity as the same was passed by the
District Court, which did not have jurisdiction over the suit property let
out for purposes other than agriculture. The Application was opposed by
Respondent's Decree Holders. By order dated 14 July 2015, the Executing
Court has rejected the Application at Exh-122 with costs of Rs. 5000/-.
Order dated 14 July 2015 passed by the Executing Court on Application
Page No. 7 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

At Exhibit-122 is the subject matter of challenge in Civil Revision
Application No. 394 of 2015. By order dated 31 July 2015, this Court
directed production of various documents by the Petitioner/Applicant
and stayed the execution proceedings.
10) Both Revision Application as well as Writ Petition are called
out for final hearing and disposal.
11) Mr. Narvankar, the learned counsel appearing for the
Petitioner/ Applicant submits that the Executing Court has grossly erred
in rejecting the Application at Exh-122 filed under Section 47 of the
Code. He submits that the plea of decree being nullity can be raised even
in executing proceedings. That the decree passed in the present case by
the District Court is clearly without jurisdiction. That the suit property is
‘premises’ within the meaning of the Bombay Rent Act. That though the
suit property may be agricultural land at the time of creation of the
lease, the same was let out for storage of coal. He relies on judgment of
the Apex Court in Tavangowda Tamangowda Patil and ors. V/s
3
Yellappa Krishna Muchandi and Ors. in support of his contention that
when land was leased out for the purpose of storing timber, the same was
held to be ‘premises’ within the meaning of Section 5 (8) of the Bombay
Rent Act.
12) Mr. Narvankar further submits that the objection of absence
of jurisdiction was given up by the Defendant in the suit by filing a
pursis. That the concession made by the Defendant in respect of
3
(1980) 3 SCC OnLine SC 10
Page No. 8 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

objection of jurisdiction cannot have the effect of conferring jurisdiction
on the Court which it inherently lacks. That since the decree passed by
the Court without jurisdiction goes to the root of the matter and is a
nullity, its invalidity can be set up in execution proceedings or even in
collateral proceedings. In support, he relies on judgments of Apex Court
4
in Sushil Kumar Mehta V/s Gobind Ram Bohra (Dead) through his Lrs.
5
and Kiran Singh and Ors. V/s Chaman Paswan and Ors . He submits
that the rule of res-judicata or estoppel does not apply to a decision on a
pure question of law such as the one relating to the jurisdiction of the
Court . In support, he relies on judgment of Apex Court in Isabella
6
Johnson V./s M. A. Susai (Dead) by Lrs.
13) Mr. Narvankar further submits that the Executing Court has
grossly erred in holding that the issue of jurisdiction is already decided
by the Trial Court. That an erroneous decision on jurisdiction does not
res-judicata.
operate as That in any case, Issue No. 4 was never
adjudicated. That jurisdiction cannot be conferred by consent, waiver,
acquiescence or estoppel.
14) Mr. Narvankar further submits that the Applicant is entitled
to invoke the provisions of Section 47 of the Code. He submits that
Section 47 applies when a question arises between the 'parties' to the
suit or their 'representatives' relating to the execution of the decree and
that a 'representative' includes one who derives title or interest from a
party and that the Applicant/Petitioner has derived his tenancy right
4
(1990) 1 SCC 193

5
(1954) 1 SCC 710
6
(1991) 1 SCC 494
Page No. 9 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

from Judgment Debtor No. 2, a son and heir of the original Plaintiff. He
submits that therefore, the Petitioner/Applicant is a legal representative
of the party and can invoke the provisions of Section 47 of the Code. Mr.
Narvankar accordingly prays for setting aside the order dated 14 July
2015 passed on the Application at Exh-122.
15) So far as Writ Petition No. 5401 of 2015 is concerned, Mr.
Narvankar submits that the Executing Court has grossly erred in
permitting the Decree Holders to lead evidence in the absence of
pleadings, that an Application under Order XXI Rule 97 is required to be
tried as a suit and that therefore, all the incidents of a suit apply to the
trial of an obstruction Application. He submits that in the absence of a
pleading opposing the obstruction Application, it is impermissible for
the Decree Holder to lead evidence. He submits that evidence in the
absence of underlying pleading is of no avail and that therefore, the
impugned order dated 9 June 2015 passed on the Application at Exh-115
deserves to be set aside.
16) Mr. Soman, the learned counsel appears on behalf of
Respondent Nos. 1 to 3, who are the Decree Holders, opposing the
Revision Application as well as the Writ Petition. He submits that the
Executing Court has rightly rejected Application at Exh-122 as the same
was not maintainable under Section 47 of the Code. That
Petitioner/Applicant is a stranger to the Suit and therefore, cannot
maintain Application under Section 47 of the Code. That Section 47 (1)
of the Code is confined to questions arising between the ‘parties’ to the
Page No. 10 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

suit, in which the decree was passed or their representatives. That a
dispute between party to the suit or a representative of a party on one
hand and the stranger on other is outside the scope of Section 47. In
support he relies on commentary of Mulla on Civil Procedure.

17) He also relies on judgment of the Apex Court in Periyammal
(supra) in support of his contention that questions arising between the
parties to the suit fall under Section 47 and the questions raised by the
third parties fall under the Order XXI Rule 97 of the Code. That therefore
Application at Exh-122 could only be treated as the one filed under
Order XXI Rule 97 which was already pending as order dated 3
September 2007 has already treated Applicant/Petitioner's objection as
Application under Order XXI Rule 97 of the Code. That therefore second
Application under same provision was clearly not maintainable. In
support he relies on judgment of the Apex Court in Rahul S. Shah Vs.
7
Jinendra Kumar Gandhi and Ors .
18) Mr. Soman further submits that the inquiry under Order XXI
Rule 101 of the Code can only be into right of the obstructionist to
occupy the suit property and not into the issue of validity of decree. That
the issue of validity of decree passed between landlord and tenant is not
a question relating to adjudication of claim of the Petitioner/Applicant
to be a tenant of Judgment Debtor No. 2. That therefore plea of nullity
was clearly outside the scope of inquiry of the Executing Court. That only
matters arising after the decree can be gone into in execution and the
issues which ought to have been raised in the suit cannot be re-
7
(2021) 6 SCC 418
Page No. 11 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

adjudicate. That Executing Court cannot go behind the decree and
question its correctness in support he relies on judgment in Vasudev
8
Dhanjibhai Modi V/s Rajabhai Abdul Rehman and Ors . . That until
Applicant establishes the status claimed, the question of decree being a
nullity does not arise at all.
19) Mr. Soman further submits that documents relied upon by
the Petitioner/Applicant were created after the decree and by a person
on the side of the owners. That therefore right allegedly created during
execution by one co-owner cannot defeat the decree. He submits that
decree passed by the District Court has merged in the decree passed by
this Court in the first Appeal and that therefore, the subordinate Court
cannot hold that decree passed by the High Court is a nullity. That order
of superior Court must always be obeyed, whatever flaws it may contain.
In support he relies on judgment in Rafique Bibi (Dead) by Lrs. V/s
9
Sayed Waliuddin (Dead) by Lrs. and Ors . . That original Defendant
company pleaded in the suit that the land was agricultural land and not
‘premises’ under the Bombay Rent Act and obtain return of the plaint.
Accordingly, that even in Civil Suit No. 8 to 1968, the company admitted
in the written statement that suit property was agricultural land and did
not press preliminary issue on jurisdiction. Despite this, Issue No. 4
regarding jurisdiction was answered by the District Court in the negative
and that ground No. 7 and 8 raised in first appeal relating to the issue of
jurisdiction were rejected by this Court in judgment dated 2/3 August
1982. He submits that even a wrong decision on the question of
8
1970 (1) SCC 670
9
(2004) 1 SCC 287
Page No. 12 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

jurisdiction would not make a decree nullity. That all irregular or wrong
decrees are not null and void and an erroneous or illegal decision, which
is not void, cannot be objected in execution or colateral proceedings. In
support, he relies on judgment in Balvant N. Viswamitra and Ors. V/s
10
Yadav Sadashiv Mule and Ors.
20) Mr. Soman further submits that even otherwise, the decree
was not passed without jurisdiction. That the material date for
ascertaining whether the land is ‘premises’ is the date of letting and that
mere liberty to Poona Fuel to erect shares for storing coal does not make
the land "premises" as on 1 June 1944. That in any case Applicant has
come into the property long after the decree. That Application under
Order XXI Rule 97 is still pending and cannot seek piecemeal
determination of his obstruction. He prays for dismissal of Civil Revision
Application No. 394 of 2015.
21) Mr. Soman also opposes Writ Petition No 5401 of 2015. He
submits that there is no requirement to file written statement or reply by
the Decree Holder to the obstruction obligation. That procedure
prescribed in Rules 98 to 106 of Order XXI is a complete code in itself.
That adjudication under Order XXI Rule 97 does not necessarily involve a
detailed inquiry or collection of evidence. In support he relies on
judgment of the Apex Court in Silverline Forum Pvt. Ltd vs Rajiv Trust
11

And Another . That the burden in obstruction proceedings is on the
Applicant, who has to prove better title to possess the properties than
Decree Holders. That evidence of Decree Holders is in the rebuttal of the
10
(2004) 8 SCC 706
11
1998 3 SCC 723
Page No. 13 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

case set up by the Applicant. That the Executing Court has rightly
rejected Application at Exh-115 preferred by the Petitioner/ Applicant.
He prays for dismissal of Writ Petition No. 5401 of 2015.
22) Rival contentions urged on behalf of the parties, now fall for
my consideration.
23) Petitioner/Applicant has presented obstruction to execution
of the decree dated 14 August 1974 passed in Civil Suit No. 8 of 1968.
Petitioner/Applicant is aggrieved by rejection of his Application at Exh-
122 filed in Darkhast No. 10 of 1993 seeking dismissal of execution
proceedings under Section 47 of the Code on the ground that the decree
is a nullity as the same is passed by the Court not having jurisdiction.
Petitioner/Applicant is also aggrieved by the Executing Court permitting
the Decree Holders to lead evidence in absence of filing of affidavit-in-
reply to the Obstruction Application. I first proceed to consider
correctness of order dated 14 July 2015 passed by the Executing Court on
Application at Exh-122 filed under Section 47 of the Code seeking
dismissal of the executing proceedings.
24) Petitioner/Applicant's Application at Exh-122, filed under
Section 47 of the Code, was premised on the plea that the suit property
are ‘premises’ within the meaning of Section 5(8) of the Bombay Rent Act
and that provisions of Bombay Rent Act were applicable to the suit
property as well as to the parties to the lease. It was further contended
that only Small Causes Court had jurisdiction to try and entertain the
eviction suit. It was therefore contended that the decree passed by the
Page No. 14 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

District Court was without jurisdiction and therefore a nullity and hence
the same cannot be executed. Paragraph Nos. 6, 7 and 8 of the
Application at Exh-122 filed by Petitioner/Applicant read thus:
6) It is submitted that it is settled law that the purpose for which
agricultural land is leased is material to determine whether the same is
covered under the definition of premises' and it has been held that
when in property is an agricultural land at time of use but subsequently
used for Non agricultural purpose at the date of the suit, the same is the
premises within the meaning of Rent Act. In the present case purpose
of letting was running a coal depot which certainly was non agricultural
propose and therefore on the date of the suit, the suit land was
premises within the meaning of Section 5(8) of the Bombay Rent Act
and Bombay Rent was applicable to the suit property as well as parties
to the lease. Therefore submitted that the suit ought to have been filed
in the court having jurisdiction to try the  suit under Section 28 of the
Bombay Rent Act and it was only the court of small causes which has
jurisdiction to try and entertain the suit. 
7) It is submitted that in the factual matrix as narrated above the decree
and judgement passed by the District Judge is in the above suit had
been passed by the Court having no inherent jurisdiction to try and
entertain the suit, the same therefore is nullity and non executable.
8) It is further submitted that it is again a settled law that a decree
passed by the court having no inherent jurisdiction is nullity and same
can be challenged even at the stage of execution. It is further submitted
it is that again a settled law that principle of estoppels, waiver and
acquiescence or even res-judicata are procedural in nature and would
have no application in a case where an order has been passed by the
Tribunal/Court which has no authority in this behalf. Any order passed
by the court without jurisdiction would be Coram non judis and nullity
the same should not be given effect to. It is submitted that the present
case is a decree having been passed by the District Judge on the footing
that the Rent Act is not applicable on the basis of estoppels as the
lawyer of the defendant contended that Rent Act is not applicable to
the said property. This having being the fact it is humbly submitted that
the principles of estoppels shall not apply here to hold that the decree
is valid and executable.
25) In the present case, the suit property was originally an
agricultural land and the same was let out by its owner Haribhau Ladkat
Page No. 15 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

to Poona Fuel on lease vide deed dated 1 June 1944. Plaintiff Haribhau
initially believed that provisions of Bombay Rent Act applied to the suit
property and accordingly filed first suit bearing Suit No. 3137 of 1954 in
the Court of Small Causes at Pune for recovery of possession and for
arrears of rent. The said Suit was settled between the parties on 23
January 1956.
26) The lessee (Poona Fuel) however once again fell in arrears of
rent. Plaintiff therefore terminated the tenancy by notice dated 26
November 1956. Poona Fuel was under liquidation and the proceedings
for liquidation were apparently pending before the District Court.
Therefore, leave of the District Court was secured by the Plaintiff for
filing suit for eviction against the Liquidator of Poona Fuels. This time
again, Plaintiff Haribhau believed that suit property was governed by
provisions of Bombay Rent Act and accordingly filed Suit No. 1827 of
1963 in the Court of Small Causes at Pune seeking eviction of the
company. The suit was transferred to the Civil Court ( execrcising
jurisdiction of Small Causes Court ) and was renumbered as Suit No. 725 of
1964. The Defendant- Poona Fuel raised objection about jurisdiction of
Small Causes Court to decide the suit on the ground that the same was
not governed by the provisions of the Bombay Rent Act since what was
let out was mere agricultural land on the date of the lease. Objection
filed by Defendant- Poona Fuel was upheld and the plaint was returned
by order dated 16 August 1967 for being presented to the Court having
jurisdiction. This is how period of about five long years got wasted and
Plaintiff-Haribhau was required to file a Suit before normal Civil Court,
which in the present case was District Court on account of pendency of
Page No. 16 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

liquidation proceedings against the company Poona Fuel. Accordingly,
Civil Suit No. 8 of 1968 was filed by the Plaintiff-Haribhau under
provisions of Section 446 of the Companies Act, 1956 against Poona Fuel
through its liquidator Shri. N.B. Sathe. The liquidator appeared in the
Suit and filed written statement admitting that the suit property was an
agricultural land. However, the liquidator still raised an objection as to
jurisdiction of the District Court and accordingly preliminary issue of
jurisdiction was framed below Exh-20. However, the company filed pursis
at Exh-23 not pressing the issue of jurisdiction. The District Court
however framed specific Issue No. 4 as to whether provisions of Bombay
Rent Act are applicable to the suit property. The said Issue No. 4 was
answered by the District Court by holding in paragraph No. 8 of the
judgment as under:
8. Issue No. 4 does not survive, inasmuch as Shri. Pashankar for the
Plaintiff as well as Shri Inamdar for the Defendant have frankly stated
that the provisions of the Bombay Rent Act are not applicable. It may be
noted that such a decision has been given by the Second Joint Civil
Judge, S.D. when he returned the plaint to the Plaintiff for presentation
to the proper Court. Thus, the Defendant has secured an order on the
basis of a contention that the suit property is not governed by the Rent
Act and obviously the Defendant cannot now urge that the Rent Act is
applicable. Issue No. 4 is thus answered in the negative.
27) The District Court proceeded to decree the suit by judgment
and order dated 14 August 1974 directing the Defendant to handover
vacant possession of suit property after removal of structures standing
thereon and also ordered an inquiry into mesne profits.
Page No. 17 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

28) The Defendant-company filed First Appeal No. 726 of 1974
in this Court. In its Appeal, the Defendant-company specifically raised
following grounds:
7. It was an error to hold that the provisions of the Bombay Rent
Act are not applicable to the premises.
8. It was an error to hold that in view of the contention of the
Defendant, and the decision given by the IInd Joint Civil Judge, Senior
Division, it was not open to the Defendant to now contend that the
suit property is governed by the Rent Act.
29) Thus, the issue of jurisdiction was specifically raised before
this Court in the First Appeal. This Court dismissed the First Appeal No.
726 of 1974 by judgment and order dated 2/3 August 1982 holding in
paragraph 11 as under:
11. The last submission was that a concession on a point of law was
made on behalf of the appellant-Company in the trial Court and that
the Bombay Rent Act did not appeal to the suit property. The suit
property falls within the definition of the word "premises" as defined
under section 5(8) of the Bombay Rent Act and the relevant date for
ascertaining that was the date of letting as laid down in Mst. Subhadra
v/s. Narasaji Chenaji Marwadi A.I.R. 1966 Supreme Court p. 806 and
relied on in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and
others A.I.R. 1970 Supreme Court p. 1475. Now, the Second Joint Civil
Judge, Senior Division, Poona, recorded a finding on a preliminary issue
that the property was an agricultural land and it was not "premises" as
defined by the Bombay Rent Act. Thus, before the Second Joint Civil
Judge, Senior Division, also, an order was secured on the basis that the
suit property was not governed by the Bombay Rent Act. It was after
this decision that the plaint was returned. Again in the present suit,
issue No. 4 about the applicability of the Bombay Rent Act was raised. A
purshis, Ex.23, was filed whereunder this issue was not pressed. In these
circumstances, Shri Gokhale's suggestion that the appellant-Company
should be allowed to raise the question of the applicability of the
Bombay Rent Act cannot be accepted.

Page No. 18 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

30) This is how the Defendant-Company invited order dated 16
August 1967 from second Joint Civil Judge Senior Division, Pune in Suit
No. 725 of 1964 ( which was earlier filed in the Small Causes Court as Suit
No. 1827 of 1963 ) directing return of the plaint on the ground of the suit
property being agricultural land not constituting ‘premises’ within the
meaning of Section 5(8) of the Bombay Rent Act. It drove Plaintiff-
Haribhau to Civil Court/ District Court by treating the suit property as
not being governed by provisions of Bombay Rent Act by making it to file
fresh Civil Suit No. 8 of 1968. In that suit, Defendant-company took a
volte face and raised preliminary objection of jurisdiction. However it
later withdrew its objection. However, at the instance of Defendant-
company, the District Court did frame the issue of application of
provisions of Bombay Rent Act and answered the same holding that the
Act did not apply to the suit premises. The Defendant-company once
again sought to contend in First Appeal filed before this Court that suit
property is governed by provisions of Bombay Rent Act. The objection
was once again repelled by this Court while dismissing the First Appeal.
31) After the original Defendant did summersaults on the issue
of applicability of provisions of Bombay Rent Act, it is now the turn of
Petitioner/Applicant who has presented an obstruction to execution of
the decree. He now seeks to raise a contention that since suit premises
were let out for storage of coal, which is not an agricultural use, the same
are ‘premises’ within the meaning of Section 5(8) of the Bombay Rent
Act. Issue for consideration is whether Petitioner/Applicant can be
permitted to raise this issue. The answer, to my mind, appears to be in
Page No. 19 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

the negative for variety of reasons, which are discussed in the paragraphs
to follow.
32) Petitioner/Applicant does not claim through the
Defendants/Judgment Debtors. He claims to have been inducted as
tenant by son of Haribhau ( who did not join filing of execution application
and is impleaded as formal Judgment Debtor No. 2 in the Darkhast ).
Petitioner/Applicant claims tenancy rights in respect of a small portion
of constructed shed admeasuring 700 sq. ft. based on rent receipt
allegedly issued on 4 January 1999 i.e. long after finalization of decree by
this Court on 2/3 August 1982 and long after filing of Darkhast No. 10 of
1993. Thus alleged right to occupy the premises in the suit property is
claimed to have been secured by the Applicant/Petitioner after the
decree was put in execution and therefore, he has no right to obstruct
execution of decree.
33) Secondly, the objection of the decree being a nullity raised
by Applicant/Petitioner is destructive to his own case. If the decree is
indeed held to be a nullity, the original Judgment Debtor/Defendant
would continue to remain in possession of the suit property. Since
alleged tenancy is created in favour of Applicant/Petitioner after passing
of decree and after filing of execution proceedings and that too by one of
the decree holders. He is seeking to plead against the person through
whom he claims rights. He would not no right to remain in possession of
part of the suit property, since possession of original
Defendant/Judgment Debtor would get regularized upon decree being
declared as nullity. Thus in a zeal to somehow continue occupying the
Page No. 20 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

portion of the suit property by somehow delaying the execution
proceedings. Applicant/Plaintiff has raised a self-destructive objection of
decree being a nullity. The objection is aimed at delaying the execution
proceedings.
34) Petitioner/Applicant has presented obstruction to the
execution of decree which has been registered as an Application under
Order XXI Rule 97 of the Code by order dated 3 September 2007. As
observed above, 14 persons who were found on the suit property by the
bailiff at the time of execution of warrant of possession raised
objections, which have been treated by the Executing Court as
Applications under Order XXI Rule 97 of the Code by passing following
order on 3 September 2007.
10. After going through this provisions one finds that if the
applications filed under Order XXI Rule 97 of C.P.C. do not form part of
the proceedings in a suit or Darkhast or appeal, pending before the
court, then alone such applications are to be separately numbered. In
my opinion, if the main execution proceeding is pending, out of which
these applications have arisen, then such applications will have to be
decided in the same main Darkhast without numbering them
separately. The only precaution that will have to be taken is that, the
application should be disposed of by treating them at the par with suit.
11. Here in this case obstructionists have taken the similar stand of
sub-tenancy and long possession. Hence I feel that these fourteen
applications can be disposed of in common very conveniently without
causing prejudice to the parties. Therefore, the following order.
ORDER
The written applications of the obstructionists except the obstructions
taken by Swaransingh Jaswantsingh Hora, are treated as the
applications filed under Order XXI Rule 97 of Civil Procedure Code.
They are taken for decision in common by threating them as one suit.
D. H. is allowed to file the reply thereto if the D. H. so decides.
Page No. 21 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

35) This is how Petitioner/Applicant’s obstruction to execution
of decree is treated as an Application under Order XXI Rule 97 of the
Code. In that Application, the Petitioner/Applicant will have to prove his
independent right to occupy portion of the suit property in his
possession. Provisions of Order XXI Rule 97 reads 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.
36) While deciding Application under Order XXI Rule 97 inquiry
is required to be conducted in accordance with provisions of Rule 101,
which provides thus:-
101. Question 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 be determined by
the Court dealing with the application and not by a separate suit and for
this purpose, the Court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to
have jurisdiction to decide such questions.
HIGH COURT AMENDMENT
Page No. 22 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

Bombay- In Order XXI, in rule 101, insert the following proviso,
namely:-"Provided that when the Court is not competent to decide such
question due to want of pecuniary jurisdiction the Court shall send the
execution case to the Court of the District Judge to which the said Court
is subordinate and thereupon the Court of the District Judge or any
other competent Court to which it may be transferred by the District
Judge, shall deal with it in the same manner as if the case had been
originally instituted in that Court."
37) Thus, while deciding Petitioner's Application under Order
all
XXI Rule 97 and 101 of the Code, the Executing Court would decide "
questions arising between the parties to a proceeding on an Application
under Order XXI Rule 97 ". Thus, limited inquiry to be conducted by the
Executing Court while deciding Petitioner's Application under Order XXI
Rule 97 is his right to occupy the property dehors the decree. In that
Application, the Executing Court is not supposed to decide whether the
decree has been passed in accordance with law or whether the Court
passing the decree had jurisdiction to try or entertain the suit. The
Executing Court cannot go behind the decree and decide the issue of
jurisdiction while deciding objection raised by an obstructionist who
claims independent right to occupy the suit property. This is particularly
because the issue of jurisdiction has already been decided by the Trial
Court and also by this Court.
38) In that sense, Petitioner's Application under Section 47 of
the Code was clearly not maintainable. The proceedings under Section 47
of the Code and the one filed under Order XXI Rule 97 operate in
different spheres and compartments. Under Section 47, only the
questions arising between parties to the suit or their representatives and
Page No. 23 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

relating to execution, discharged or satisfaction of the decree can be
determined by the Executing Court. Section 47 of the Code provides
thus:
47. Questions to be determined by the Court executing decree.—
(1) All questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.
*
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this
section, be determined by the Court.
Explanation I.—For the purposes of this section, a plaintiff whose suit
has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit.
Explanation II.—(a) For the purposes of this section, a purchaser of
property at a sale in execution of a decree shall be deemed to be a party
to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property
to such purchaser or his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree within
the meaning of this section.
(emphasis and underlining added)
39) Thus, the inquiry under Section 47 of the Code is restricted
to questions arising between the parties/their representatives. Therefore,
no question, which concerns a person who is not a party/representative,
can be decided in an application under Section 47 of the Code. The
question/issue/objection relating to a person who is not a
party/representative has to be decided under Order XXI Rule 97 of the
Code. Law in this regard is well settled by recent judgment of the Apex
Page No. 24 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

Court in Pariyammal (supra) in which the Apex Court has held in
paragraphs 52, 63, 64, 65 of the judgment as under:
52. Under Section 47 of the CPC, questions arising between the
parties to the suit relating to the execution, discharge or
satisfaction of the decree are covered whereas under Order XXI,
Rule 97 read with rule 101 of the CPC, questions including those
relating to right, title or interest in the property arising between
the parties to the proceeding on an application under Rule 97 or
Rule 99 of Order XXI are to be determined by the executing court.
The language of Rule 97 provides that where the holder of a decree for
possession of immovable property 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.
The language used is “obstructed by any person”. It may be by the
judgment-debtor or by a third person. Sub-rule (2) of the said Rule 97
further provides that where an application is made under sub-rule (1),
the court shall proceed to adjudicate upon the application in
accordance with the provisions thereunder contained. Sub-rule (2) of
Rule 98 of Order XXI, further provides that where upon such
determination, the Court is satisfied that the resistance or obstruction
was occasioned without any just cause by the judgment-debtor or by
some other person at his instigation or on his behalf, he shall direct
that the applicant be put into, possession of the property.
xxx
63. It further appears that the respondent Nos. 1 and 2 respectively,
claiming to be cultivating tenants, had contended before the courts
below that the civil court lacked jurisdiction to adjudicate on matters
pertaining to possession of the suit property and eviction therefrom.
The respondents submitted that the decree passed in the original suit
was a nullity and therefore, the validity of the decree could be
challenged even during the execution proceedings.
64. A harmonious reading of Section 47 with Order XXI Rule 101
implies that questions relating to right, title or interest in a
decretal property must be related to the execution, discharge or
satisfaction of the decree. The import of such a reading of the
provisions is that only matters arising subsequent to the passing of
the decree can be determined by an executing court under Section
47 and Order XXI Rule 101. Such reasoning is reinforced by the
decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in
(1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman reported in (1970) 1 SCC 670, wherein it has been held that
Page No. 25 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

while determining a question under Section 47, an executing court
cannot go behind the decree and question the correctness of the
same.
65. What flows from the position of law, as afore stated, is that the
issues that ought to have been raised by the parties during the
adjudication of the original suit cannot be determined by the
executing court as such adjudication may undermine the decree
itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi
reported in (2021) 6 SCC 418 has held that the benefit of Section
47 cannot be availed to conduct a retrial causing failure of
realisation of fruits of the decree.
(emphasis and underlining added)
40) In Rahul S. Shah (supra) which is followed by the Apex
Court in Pariyammal , the Apex Court has held that Section 47 of the
Code contemplates adjudication of a limited nature of issues relating to
execution. It is held that the question must be the one arising between
the "parties" and that the dispute must relate to execution, discharge or
satisfaction of the decree. It is held in paragraphs 24 to 27 and 42.8 of
the judgment as under:
24. In respect of execution of a decree, Section 47 CPC
contemplates adjudication of limited nature of issues relating to
execution. i. e. discharge or satisfaction of the decree and is aligned
with the consequential provisions of 4 Order 21 CPC. Section 47 is
intended to prevent multiplicity of suits. It simply lays down the
procedure and the form whereby the court reaches a decision. For the
applicability of the section, two essential requisites have to be
kept in mind. Firstly, the question must be the one arising
between the parties and secondly, the dispute relates to the
execution, discharge or satisfaction of the decree. Thus, the
objective of Section 47 is to prevent unwanted litigation and dispose of
all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees,
executing court must not go beyond the decree. However, there is
steady rise of proceedings akin to a retrial at the time of execution
causing failure of realisation of fruits of decree and relief which
Page No. 26 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

the party seeks from the courts despite there being a decree in
their favour. Experience has shown that various objections are filed
before the executing court and the decree-holder is deprived of the
fruits of the litigation and the judgment-debtor, in abuse of process of
law, is allowed to benefit from the subject-matter which he is otherwise
not entitled to.
26. The general practice prevailing in the subordinate courts is that
invariably in all execution applications, the courts first issue show-
cause notice asking the judgment-debtor as to why the decree should
not be executed as is given under Order 21 Rule 22 for certain class of
cases. However, this is often misconstrued as the beginning of a new
trial. For example, the judgment-debtor sometimes misuses the
provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral
plea, which invariably leaves no option with the court but to record oral
evidence which may be frivolous. This drags the execution proceedings
indefinitely.
27. This is antithesis to the scheme of the Civil Procedure Code, which
stipulates that in civil suit, all questions and issues that may arise, must
be decided in one and the same trial. Order 1 and Order 2 which relate
to parties to suits and frame of suits with the object of avoiding
multiplicity of proceedings, provides for joinder of parties and joinder
of cause of action so that common questions of law and facts could be
decided at one go.
xxx
42.8. The court exercising jurisdiction under Section 47 or under
Order 21 CPC, must not issue notice on an application of third
party claiming rights in a mechanical manner. Further, the court
should refrain from entertaining any such application(s) that has
already been considered by the court while adjudicating the suit or
which raises any such issue which otherwise could have been raised and
determined during adjudication of suit if due diligence was exercised by
the applicant.
41) Thus, the proceedings under Section 47 and Order XXI Rule
97 of the Code operate in different spheres, which can be filed by
different persons and for distinct purposes. Therefore, an obstructionist
at whose instance proceedings under Order XXI Rule 97 of the Code are
initiated cannot file an application under Section 47 of the Code in those
Page No. 27 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

proceedings. The obstructionist cannot seek to prove his independent
right to occupy the decretal property under Order XXI Rule 97 (thereby
suggesting that the decree does not bind him) and at the same time
question validity of the decree by raising objection under Section 47 of
the Code. He cannot interchange is avatars from a third-party objector
( under Order XXI Rule 97 ) to a party to the suit (required for Section 47 ).
Therefore the application filed under Section 47 of the Code in
proceedings initiated under Order XXI Rule 97 of the Code is wholly
non-maintainable.
42) Since Petitioner/Applicant was not a party to the Suit, he
cannot seek adjudication of any question relating to execution of the
decree under Section 47 of the Code. This is sought to be countered by
Mr. Narvankar contending that Petitioner/Applicant would be covered by
the expression ‘representatives’ appearing in Section 47 of the Code. He
contends that Petitioner/Applicant has secured tenancy rights from the
son of the original Plaintiff and that therefore he is a representative of
legal heir of the original Plaintiff. The argument may appear to be
attractive in the first blush, but is baseless to the core. As observed above
a shift in roles by the obstructor is impermissible. If the person objecting
to execution of the decree wants to take a position that he is a
representative of the party to the suit, he needs to file application under
Section 47 of the Code. This is not done by the Applicant/Petitioner. He
never treated himself as a representative of a party to the suit. On the
other hand he allowed his objection to be treated as the one under Order
XXI Rule 97 of the Code. He allowed himself to be treated as a third-
party obstructionist claiming independent right to occupy the property
Page No. 28 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

dehorse the decree. Now he cannot turn around and contend that he is a
representative of party to the suit and is hence entitled to maintain
application under Section 47 of the Code.
43) Also, Applicant/Petitioner’s contention that he is a
representative of party to the suit is again self-destructive. If indeed
Petitioner/Applicant is a representative of legal heir of the Plaintiff, what
it is doing effectively is blocking execution of the decree passed in his
own favour. The expression ‘representatives’ used in Section 47 of the
Code would mean all representatives standing on one side alongwith
either the decree holder or the judgment debtor. A representative of the
judgment debtor can file an application under Section 47 of the Code
questioning the executability of the decree.
44) Section 47 of the Code does not contemplate an inquiry into
two decree holders in relation to validity of the decree. It is
unfathomable that one decree holder can complain to the Executing
Court that the decree must be declared a nullity and non-executable with
a view to destroy right of another decree holder by filing application
under Section 47 of the Code. Therefore, submission raised by Mr.
Narvankar that Petitioner/Applicant is a representative of decree holder
is baseless and deserves outright rejection. Petitioner/Applicant is acting
against the interest of the heirs of the decree holder and is obstructing
execution of the decree and cannot be treated as representatives of a
party to the suit. He is stranger to the decree and the only remedy
available for him is to justify his occupation/ possession by succeeding in
Application filed under Order XXI Rule 97 of the Code.
Page No. 29 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

45) Reliance by Mr. Soman on a passage from Mulla on Code of
Civil Procedure is apposite in which the author states that ‘parties’
ordinarily means parties who are opposed to each other suit though not
necessarily as plaintiff and defendant. The author opines in paragraph 18
and 18F as under:
18. Parties to the suit. If the question is one relating to the execution,
discharge, or satisfaction of the decree, but does not arise between the
parties to the suit, the section does not apply, and a suit is not barred.
'Parties' ordinarily means parties who are opposed to each other in the
suit, though not necessarily as plaintiff and defendant; "for, in a
partition suit co-defendants may be opposed to each other. Thus, where
a decree was passed against J and R on a joint debt and it was scaled as
against J, a subsequent application by J to adjust towards the decree as
scaled, payments made by R is not within this section, as it is not one
between the parties to the order scaling the debt nor could they be
adjusted as they were prior to the scaling. Where a party not taking part
in the execution proceedings to be intimated about the date fixed for
hearing questions arising between parties who are not opposed to each
other, or between a party and a stranger, do not fall under s 47. The
following are illustrations:
xxx
(f) Questions Between a Party and a Stranger. -A dispute between a
party to the suit or his representatives on the one hand and a stranger
(not a purchaser at the execution sale) on the other, is outside the scope
of this section. Under the new Explanation II, a purchaser or property at
a sale in execution of a decree, though a stranger to the suit, is deemed
to be a party to the suit in which the decree has been passed. Before the
recent amendment, the view taken was that a suit by the purchaser in
court auction of the interest of a co-sharer against the other co-sharers
for partition and separate possession of that interest does not fall under
this section. But, after the amendment, such a purchaser is a deemed
party to the suit wherein the decree was passed and the question of
delivery of possession of the co-sharer's share in the property would be
deemed to be a question relating to execution. Hence the view held in
those cases may not henceforth be held to be correct. Where, pending a
second appeal, the decree-holder died and his widows were brought on
record as his legal representatives, an application by a third person
claiming to be the representative of the deceased decree-holder to
Page No. 30 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

enforce the decree is not within this section. Proceedings against the
garnishee in execution are outside s 47, and so is an order directing
execution on the application of a commissioner for recovery of costs
directed to be paid by a party. The members of joint Hindu family do not
become entitled to file objections under s 47, Code of Civil Procedure.
Section 47, is a special provision regarding objections in the execution
by the parties to the suit. It cannot be extended to the persons, who are
not parties to the suit on the basis that they are also members of joint
Hindu family. This provision cannot be availed by them and the only
option for them is to file a separate suit.
46) In my view therefore, the Application filed by the
Petitioner/Applicant at Exh-122 under Section 47 of the Code was clearly
not maintainable and deserved rejection. Filing of application by the
Applicant under Section 47 in proceedings filed under Order XXI Rule 97
was far from bonafide and apart from the same being wholly baseless,
the application was aimed at somehow delaying the execution
proceedings. The observations made by the Apex Court in Rahul S. Shah
about indefinite delay in execution proceedings and preventing the
decree holder from enjoying the fruits of the decree squarely apply in the
facts of the present case.
47) It is otherwise well settled position that Executing Court
cannot go behind the decree. In Vasudev Dhanjibhai Modi (supra) the
Apex Court has considered almost a similar situation where the
Appellant therein had applied for execution of decree for ejectment,
which he has obtain against the Respondent, who raised the objection
that decree was a nullity as Court of Small Causes had no jurisdiction to
entertain the suit. The Apex Court held that the question whether the
Court of Small Causes had jurisdiction to entertain the suit against
Page No. 31 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

Munshi depended upon the interpretation of the terms of the agreement
of lease, and the user to which the land was put at the date of the grant
of the lease. It is held that the said questions could not be permitted to
be raised in an execution proceeding so as to displace the jurisdiction of
the Court which passed the decree. The Apex Court held in paragraphs
6, 8 and 9 of the judgment as under:
6. A court executing a decree cannot go behind the decree: between the
parties or their representatives it must take the decree according to its
tenor, and cannot entertain any objection that the decree was incorrect
in law or on facts. Until it is set aside by an appropriate proceeding in appeal
or revision, a decree even if it be erroneous is still binding between the parties.
8. In the present case the question whether the Court of Small Causes
had jurisdiction to entertain the suit against Munshi depended upon the
interpretation of the terms of the agreement of lease, and the user to
which the land was put at the date of the grant of the lease. These
questions cannot be permitted to be raised in an execution proceeding so
as to displace the jurisdiction of the Court which passed the decree. If the
decree is on the face of the record without jurisdiction and the question does
not relate to the territorial jurisdiction or under Section 11 of the Suits
Valuation Act, objection to the jurisdiction of the Court to make the decree
may be raised; where it is necessary to investigate facts in order to determine
whether the Court which had passed the decree had no jurisdiction to
entertain and try the suit, the objection cannot be raised in the execution
proceeding.
9. The High Court was of the view that where there is lack of inherent
jurisdiction in the Court which passed the decree, the executing Court must
refuse to execute it on the ground that the decree is a nullity. But, in our
judgment, for the purpose of determining whether the Court which
passed the decree had jurisdiction to try the suit, it is necessary to
determine facts on the decision of which the question depends, and the
objection does not appear on the face of the record, the executing Court
cannot enter upon an enquiry into those facts. In the view of the High
Court since the land leased was at the date of the lease used for
agricultural purposes and that it so appeared on investigation of the
terms of the lease and other relevant evidence, it was open to the Court
to hold that the decree was without jurisdiction and on that account a
nullity. The view taken by the High Court, in our judgment, cannot be
sustained.
(emphasis added)
Page No. 32 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

48) Thus, in Vasudev Dhanjibhai Modi , the Apex Court held
that even at the instance of a party to the suit, the Executing Court
cannot go into the issue of jurisdiction of a Small Causes Court to pass
the decree. More importantly, the Apex Court held that for the purpose
of determining the question as to whether Court had jurisdiction in
execution proceedings, when it becomes necessary to determine facts on
which decision of issue depends, and if the objection does not appear on
the face of record, the Executing Court cannot enter upon inquiry into
those facts. The Apex Court held that the issue of nature of lease cannot
be gone into by the Executing Court. The judgment squarely applies in
the facts of the present case where Petitioner wanted the Executing
Court to decide whether the lease was granted for agricultural proposes
or for the purpose of storage of coal. In the present case, for deciding the
issue of jurisdiction or applicability of provisions of Bombay Rent Act a
factual inquiry is necessary as to the purpose for which the premises
were let out. This factual inquiry cannot be conducted by the Executing
Court for holding that the decree was nullity.
49) In the present case, the issue of applicability of provisions of
Bombay Rent Act has been repeatedly considered and decided on
multiple occasion by Small Causes Court, by District Court and by this
Court. If any doubt remains, the same gets resolved by judgment of the
12
Apex Court in Subhadra V/s Narsaji Chenaji Marwadi which judgment
has been considered by this Court while dismissing the First Appeal. The
judgment is an authority on the proposition that the material date for
12
AIR 1966 SC 806
Page No. 33 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

ascertaining whether the land is ‘premises’ within the meaning of
Section 5(8) of the Bombay Rent Act is the date of letting and not the
later date.
50) Mr. Narvankar has relied on judgment of the Apex Court in
Tavangowda Tamangowda Patil (supra) in which the judgment of the
Apex Court in Subhadra is considered and it is held in paragraph 4 as
under:
4. The submission of Shri Ganpule was that the material date for
ascertaining whether the plot of land was "premises" within the
meaning of Section 5(8) of the Bombay Rent Act was the date of letting
and as it was not shown that the user of the land was converted from
agricultural to non-agricultural purposes after obtaining the
permission of the Collector in accordance with the provisions of the
Bombay Land Revenue Code, it must be held that the land was not
'premises' within the meaning of Section 5(8) on the material date. He
relied on the decision of this Court in Smt. Subhadra v. Narsaji Chenaji
Marwad MANU/SC/0287/1961 : [1962]3SCR98. The fundamental flaw in
the submission of Shri Ganpule is the underlying assumption that the
land was agricultural land at the inception or at any rate at the time
when it was let out to the respondents for the first time. We find no
basis in the record for these assumptions. In fact, before the High Court
when it was argued that the land was used for non-agricultural
purposes and therefore, the provisions of the Bombay Rent Act were
applicable, the answer of the present appellants was not that it was
agricultural land on the material date but that it was except from the
provisions of the Act as it belonged to the Government. As we observed,
there is no basis in the record for the assumption that the land was ever
used for agricultural purposes. When the land was leased to the
respondents it was admittedly leased for the purpose of storing timber
etc. We are, therefore, unable to see any force in the first submission of
Shri Ganpule.
51) In Tavangowda Tamangowda Patil it was found that the
leased land was never put for agricultural use even at the time of letting,
which is not the case here. In the present case, there were no constructed
shades in the suit property at the time of creation of lease as on 1 June
Page No. 34 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

1944. A mere permission was granted to the lessee to erect shades for the
purpose of storage of coal on the agricultural land. On 1 June 1944 lease
was created in respect of agricultural land. Merely because the lessee
subsequently put the land for use for storage of coal made no difference
to the fact that the property leased originally happened to be agricultural
land. Therefore, even otherwise the provisions of Bombay Rent Act did
not apply to the suit property or to the parties to the lease when the
same was created on 1 June 1944. Therefore, objection of jurisdiction of
District Court to pass the decree is otherwise totally baseless and could
have been set at naught if raised in a proceeding where the issue could
have been adjudicated. Here neither Petitioner/Applicant was competent
to raise the objection nor Executing Court is competent to decide the
same. In the present case however, the issue cannot be gone into by the
Executing Court for the reasons discussed above.
52) Mr. Soman is justified in relying on judgment of the Apex
Court in Rafique Bibi (supra) in which the Apex Court has held that mere
wrong exercise of jurisdiction does not render the decree a nullity and
that order a superior Court such as High Court must always be obeyed,
no matter what flaws it may have. The Apex Court has held in paragraphs
6, 7 and 8 as under:
6. What is "void" has to be clearly understood. A decree can be said to be
without jurisdiction, and hence a nullity, if the court passing the decree
has usurped a jurisdiction which it did not have; a mere wrong exercise
of jurisdiction does not result in a nullity. The lack of jurisdiction in the
court passing the decree must be patent on its face in order to enable
the executing court to take cognizance of such a nullity based on want
of jurisdiction, else the normal rule that an executing court cannot go
behind the decree must prevail.
Page No. 35 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

7 Two things must be clearly borne in mind. Firstly, "the court will
invalidate an order only if the right remedy is sought by the right
person in the right proceedings and circumstances. The order may be 'a
nullity and 'void' but these terms have no absolute sense: their meaning
is relative, depending upon the court's willingness to grant relief in any
particular situation. If this principle of illegal relativity is borne in
mind, the law can be made to operate justly and reasonably in cases
where the doctrine of ultra vires, rigidly applied, would produce
unacceptable results." (Administrative Law, Wade and Forsyth, 8th Edn.,
2000, p. 308.) Secondly, there is a distinction between mere
administrative orders and the decrees of courts, especially a superior
court. "The order of a superior court such as the High 9 Court, must
always be obeyed no matter what flaws it may be thought to contain.
Thus a party who disobeys a High Court injunction is punishable for
contempt of court even though it was granted in proceedings deemed to
have been irrevocably abandoned owing to the expiry of a time-limit."
(ibid., p. 312)
8. A distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable and a
decree of the court which is merely illegal or not passed in accordance
with the procedure laid down by law. A decree suffering from illegality
or irregularity of procedure, cannot be termed inexecutable by the
executing court; the remedy of a person aggrieved by such a decree is to
have it set aside in a duly constituted legal proceedings or by a superior
court failing which he must obey the command of the decree. A decree
passed by a court of competent jurisdiction cannot be denuded of its
efficacy by any collateral attack or in incidental proceedings.
53) In Balvant N. Viswamitra (supra) the Apex Court has
reiterated that there is a distinction between the decree which is void
and the decree which is wrong, incorrect, irregular or not in accordance
with law. It is held in paragraphs 9, 15, 20 and 23 of the judgment as
under:
9. The main question which arises for our consideration is whether the
decree passed by the trial court can be said to be 'null' and 'void'. In our
opinion, the law on the point is well settled. The distinction between a
decree which is void and a decree which is wrong, incorrect irregular or
not in accordance with law cannot be overlooked or ignored. Where a
court lacks inherent jurisdiction in passing a decree or making an order,
Page No. 36 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

a decree or order passed by such court would be without jurisdiction,
non est and void ab initio. A defect of jurisdiction of the court goes to
the root of the matter and strikes at the very authority of the court to
pass a decree or make an order. Such detect has always been treated as
basic and fundamental and a decree or order passed by a court or an
authority having no jurisdiction is nullity. Validity of such decree or
order can be challenged at any stage, even in execution or collateral
proceedings.
xxx
15 . From the above decisions, it is amply clear that all irregular or
wrong decrees or orders are not necessarily null and void. An erroneous
or illegal decision, which is not void, cannot be objected in execution or
collateral proceedings.
xxx
20. In our considered opinion, such a decree, by no stretch of
imagination, can be described nullity. If the decree is not null and void,
as per settled law, appropriate proceedings will have to be taken by the
persons aggrieved by such decree.
xxx
23. Negativing the contention, the court held that the persons who
could make grievance were the heirs and legal representatives of
deceased Narayan and the petitioner had no right to make such
grievance. The court further observed that since the petitioner was
claiming through the tenant, he was bound by the decree passed in the
suit. The petition was, therefore, dismissed. 
54) In the present case, decree of the District has merged into
the decree passed by this Court in First Appeal. This Court has also dealt
with the issue of applicability of provisions of Bombay Rent Act as well
as jurisdiction of the District Court to pass the decree. Therefore, the
Executing Court, which is a District Court, cannot otherwise rule that
High Court has erred in passing the decree or that decree passed by the
High Court is a nullity. Reliance by Mr. Soman on judgment of the Apex
Page No. 37 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

13
Court in Chandi Prasad and others V/s Jagdish Prasad and others is
also apposite in which it is held that when a higher appellate forum
entertains an appeal and passes an order on merits (whether by
confirmation, modification, or reversal), the lower Court's decree merges
with the appellate decree and consequently, there can only be one
operative decree governing the subject matter at any given point in time
i.e. the final decree of the appellate Court.
55) What remains now is to deal with some of the judgments
relied upon by Mr. Narvankar. The judgment of the Apex Court in Kiran
Singh is relied upon in support of the contention that the defects of
pecuniary, territorial, or subject-matter jurisdiction strike at the root of a
Court's authority and that such defects cannot be cured by consent or
waiver, rendering the resulting decree a nullity and that can be
challenged at any stage, including in execution proceedings. However, in
view of the discussions above, the issue of jurisdiction of the District
Court (Civil Court) to try and entertain the Suit has been decided upto
this Court and has been answered in favour of the Plaintiff/decree
holders. Therefore, it cannot be contended that there is waiver of
jurisdiction objection by the Defendant in the suit. Though a purshis was
filed dropping the preliminary objection, the jurisdiction issue was
pressed by the Defendant right upto this Court, as held above. Also since
the issue of jurisdiction required inquiry into nature of lease, the same
cannot be conducted by the Executing Court.
13
(2004) 8 SCC 724
Page No. 38 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

56) Mr. Narvankar has relied on the judgment of the Apex Court
in Sushil Kumar Mehta (supra) in support of the contention that res
judicata does not bar the judgment-debtor from challenging the decree,
that waiver or estoppel cannot validate a void decree and that the plea of
nullity can be raised directly in execution proceedings. However, in the
present case, there is no waiver as to objection of jurisdiction by the
Defendant as observed above. Secondly the case does not involve the
facet of absence of jurisdiction on the face of the decree. The issue of
jurisdiction needs factual inquiry into nature and purpose of lease, which
inquiry is already conducted by the District Court and by this Court in
First Appeal.
57) In view of the above discussion, I am unable to trace any
error in the order dated 14 July 2015 passed by the Executing Court
rejecting Petitioner's Application at Exh-122. In fact, filing of
Application at Exh-122 under Section 47 of the Code is found to be gross
abuse of process of law by the Applicant/ Petitioner. Filing of the said
Application has resulted in delaying the decision of the Application
under Order XXI Rule 97 of the Code. The eviction decree in the present
case is passed on 14 August 1974 and the said decree is confirmed by this
Court on 2/3 August 1982. The Decree Holders are unable to enjoy the
fruits of the decree for the last 52 long years. On the other hand,
Petitioner/Applicant is enjoying possession of portion of the suit
property by deliberately creating hurdles in decision of his application
under Order XXI Rule 97 of the Code. Instead of proving his alleged
independent right to occupy the suit property dehors the decree,
Petitioner/Applicant unnecessarily sought to go behind the decree and
Page No. 39 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

sought a declaration that the same is a nullity. It made the Executing
Court undertake a piecemeal inquiry into validity of the decree by
passing order dated 14 July 2015, even though his Application under
Order XXI Rule 97 of the Code still remains pending. In my view
therefore, while dismissing Civil Revision Application Petitioner/
Applicant is required to be mulct with costs.
58)
So far as Writ Petition No. 5401 of 2015 is concerned the
same challenges order dated 9 June 2015 passed by the Executing Court
rejecting the Petitioner/Applicant’s Application at Exh-115 by which he
had sought to prevent Decree Holders from leading evidence on the
ground that they did not file reply to his Application under Order XXI
Rule 97 of the Code.
59) In the present case, Petitioner/Applicant did not file any
specific Application under Order XXI Rule 97 of the Code. As observed
above, the objections presented to the bailiffs by 14 persons have been
treated as Applications under Order XXI Rule 97 of the Code by the
Executing Court vide order dated 3 September 2007. Thus, there is no
formal Application filed by the Petitioner/Applicant under Order XXI
Rule 97 of the Code. Furthermore, the scheme under Order XXI Rule 97
to Rule 101 of the Code does not require filing of the formal written
statement/reply by the Decree Holder for deciding the obstruction
Application. Though Application under Order XXI Rule 97 may have to
be decided as if it is the suit by conduct of inquiry under Order XXI Rule
101, of the Code the same does not mean that it is mandatory to file the
written statement/reply opposing an obstructionist proceeding. The
Page No. 40 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

burden is on the obstructionist to prove his independent right to occupy
the suit property and it is not necessary to conduct a detailed evidentiary
inquiry for deciding the objection presented by the obstructionist.
Reference, in this regard can be made to the judgment of the Apex Court
in Silverline Forum (P) Ltd. V/s Rajiv Trust , (supra) in which it is held
in paragraphs 9, 10 and 14 of the judgment as under:
9. At the outset, we may observe that it is difficult to agree with the
High Court 17 that resistance or obstructions made by a third party to
the decree of execution cannot be gone into under Order XXI Rule 97 of
the Code. Rules 97 to 106 in Order XXI of the Code are subsumed under
the caption "Resistance to delivery of possession to decree-holder or
purchaser". Those rules are intended to deal with every sort of
resistance or obstructions offered by any person. Rule 97 specifically
provides that when the holder of a decree for possession of immovable
property is resisted or obstructed by "any person" in obtaining
possession of the property such decree-holder has to make an
application complaining of the resistance f or obstruction. Sub-rule (2)
makes it incumbent on the court to proceed to adjudicate upon such
complaint in accordance with the procedure laid down.
10. It is true that Rule 99 of Order XXI is not available to any person
until he is dispossessed of immovable property by the decree-holder.
Rule 101 stipulates that all questions "arising between the parties to a
proceeding 9 on an application under Rule 97 or Rule 99" shall be
determined by the executing court, if such questions are "relevant to the
adjudication of the application". A third party to the decree who offers
resistance would thus fall within the ambit of Rule 101 if an
adjudication is warranted as a consequence of the resistance or
obstruction made by him to the execution of the decree. No doubt if the
resistance was made by a transferee pendente lite of the judgment-
debtor, the scope of the adjudication would be shrunk to the limited
question whether he is such a transferee and on a finding in the
affirmative regarding that point the executing court has to hold that he
has no right to resist in view of the clear language contained in Rule
102. Exclusion of such a transferee from raising further contentions is
based on the salutary principle adumbrated in Section 52 of the
Transfer of property Act.
Xxx
Page No. 41 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

14. It is clear that the executing court can decide whether the resister or
obstructor is a person bound by the decree and he refused to vacate the
property. That question also squarely falls within the adjudicatory
process contemplated in Order XXI Rule 97(2) of the Code. The
adjudication mentioned therein need not necessarily involve a
detailed enquiry or collection of evidence. Court can make the
adjudication on admitted facts or even on the averments made by
the resister . Of course the court can direct the parties to adduce
evidence for such determination if the court deems it necessary."
(emphasis supplied)
14
60) In Usha Sinha V/s Dina Ram and Ors. the Apex Court has
held that in execution proceedings, the Court's inquiry is strictly limited
to whether the objector/transferee is claiming a right through the
judgment-debtor.
61) Leading of evidence by the decree holders is mandatory as
the Applicant/Petitioner would demand a full-fledged inquiry. Therefore,
it cannot be that only the Applicant is allowed to lead evidence and not
the decree holder. In Periyammal (supra) the Apex Court has highlighted
the need for taking evidence in obstruction proceedings. It is held in
paragraph 43 of the judgment as under:
43. It is a settled position of law that an application under Order 21
Rule 97 may be made in respect of obstruction raised by any person in
obtaining possession of the decretal property. The courts adjudicating
such application have to do so in accordance with Rule 101 and hold a
full-fledged inquiry to determine all questions including questions
relating to right, title or interest in the property arising between the
parties.
14
(2008) 7 SCC 144
Page No. 42 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

62) In Udyavara R. Acharya and another V/s. Jugal Kishor
15
Jagannath Sharda , a coordinate bench of this Court has held that it is
necessary to take evidence by framing issues in obstruction Application.
This Court held in paragraphs 46 to 49 as under:
46 . In Silverline Forum, the owner let out the property. With the
owner's leave, the tenant subleased the property. Again, that sublessee
further sublet the property. Here, in the ejectment suit, the subtenants
were not made parties. So, the second subtenant obstructed the
execution. True, West Bengal Premises Tenancy Act permitted sub-
tenancy but subject to certain procedural safeguards, but the tenant has
not adhered to them. Even with the owner's consent, there can be only
one sub-tenancy-not a succession of them. In this context, the Supreme
Court has held that 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 adjudicating, the Court is obliged to
determine only such question as may be arising between the parties to
a proceeding on such complaint and that such questions must relate to
the adjudication.
47 . Silverline Forum has stressed that 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 does
not have to determine a question merely because the resistor raised it.
Succinctly stated, 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 a resistor or Obstructor legally arises between the parties.
That is, the executing Court can decide whether the resistor or
Obstructor is a person bound by the decree, and he refuses to vacate the
property. That question also squarely falls within the adjudicatory
process contemplated in Order 21 Rule 97(2) of the Code. In this
context, it has held that :
The adjudication mentioned therein need not necessarily involve
a detailed enquiry or collection of evidence. Court can make the
adjudication on admitted facts or even on the averments made by
the resistor. Of course the Court can direct the parties to adduce
evidence for such determination if the Court deems it necessary.
15
2020 (5) Mh.L.J. 227
Page No. 43 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

48 . In this context, we may refer to Para 435 of Bombay High Court Civil
Manual. Under Chapter XXI, appropriately, dealing with Execution of
Decrees, Para 435 requires the Executing Court to frame issues, to take
evidence, and to deliver judgment in any dispute arising during the
execution proceedings. The Paragraph reads:
345. When the dispute arise in the course of execution
proceedings, the provisions as to suits, unless inapplicable,
should be followed. In such cases, issues must be framed,
evidence taken and judgment written according to the law
applicable to the suits.
49 . Before we answer the question about the need to record evidence,
we must accept that the Executing Court, too, has felt that it was
necessary. But it dissuaded itself from letting the parties lead evidence.
On that count, it has suffered from certain legal fallacies. Let us
examine them.
(f) The Fallacies the Executing Court's Order Suffered From:
(a) The trial Court and the Appellate Court in the eviction suit between
the landlord and the tenant have concurrently found against the
Obstructor:
63) In my view therefore, the Executing Court is justified in
rejecting baseless application filed by the Applicant/Petitioner to prevent
leading of evidence by the Decree Holders in obstruction application
under Order XXI Rule 97 of the Code. Writ Petition No. 5401 of 2015
accordingly deserves to be rejected.
64) In view of the above discussion, Civil Revision Application
No. 394 of 2015 and Writ Petition No. 5401 of 2015 fail and I proceed to
pass the following Order:
(i) Civil Revision Application No. 394 of 2015 and Writ Petition
No. 5401 of 2015 are dismissed . Pending Civil Application
also disposed of.
Page No. 44 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04

Renuka cra-394-2015.docx

(ii) Applicant/Petitioner shall pay costs of Rs. 1,00,000/- to the
Applicants in the execution application. The amount of cost
shall be deposited by the Petitioner in the Executing Court
within a period of four weeks with liberty to the Decree
Holders to withdraw the same. Payment of costs within the
stipulated time shall be condition a precedent for the
Applicant/Petitioner to prosecute the application for
obstruction.
(iii) As the execution proceedings are pending since the year
1993, the Executing Court shall give due priority for its
expeditious decision and the same shall be decided as
expeditiously as possible, preferably within a period of four
months, without making any request for extension of time.
[SANDEEP V. MARNE, J.]
NEETA
SHAILESH
SAWANT
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.10.16
21:11:12 +0530
Page No. 45 of 45
16 October 2026
Uploaded on - 16/10/2026 Downloaded on - 16/10/2026 21:32:04
Powered by TCPDF (www.tcpdf.org)