Periyammal (Dead Thr. Lrs.) vs. V. Rajamani And Anr. Etc

2025 INSC 329
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3640-3642 OF 2025
(ARISING OUT OF SLP (C) NOS. 8490-8492 OF 2020)


PERIYAMMAL (DEAD) THROUGH LRS & ORS. ... APPELLANTS
VERSUS
V. RAJAMANI & ANR. ETC. ... RESPONDENTS


J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.03.06
16:18:54 IST
Reason:

J. B. PARDIWALA, J. :
For the convenience of exposition, this judgment is divided into the following
parts: -
INDEX

A. FACTUAL MATRIX .................................................................................... 6
B. SUBMISSIONS OF THE APPELLANTS ............................................... 22
C. SUBMISSIONS OF THE RESPONDENT NOS. 1 & 2 .......................... 25
D. ISSUES TO BE DETERMINED............................................................... 32
E. ANALYSIS .................................................................................................. 33
(i) Relevant statutory provisions ............................................................... 33
(ii) Nature of application under Order XXI Rule 97 ................................ 37
(iii) Section 47 of the CPC vis-à-vis Order XXI Rule 97 of the CPC ....... 51
F. CONCLUSION ........................................................................................... 77




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1. Leave granted.
2. “ The seeker of justice many a time has to take long circuitous routes, both
on account of hierarchy of courts and the procedural law. Such persons are
and can be dragged till the last ladder of the said hierarchy for receiving
justice but even here he only breathes fear of receiving the fruits of that
justice for which he has been aspiring to receive. To reach this stage is in
itself an achievement and satisfaction as he, by then has passed through a
long arduous journey of the procedural law with many hurdles replica of
mountain terrain with ridges and furrows. When he is ready to take the bite
of that fruit, he has to pass through the same terrain of the procedural law
in the execution proceedings, the morose is writ large on his face. What
looked inevitable to him to receive it at his hands distance is deluded back
into the horizon. The creation of the hierarchy of courts was for a reasonable
objective for conferring greater satisfaction to the parties that errors, if any,
by any of the lower courts under the scrutiny of a higher court be rectified
and long procedural laws also with good intention to exclude and filter out
all unwanted who may be the cause of obstruction to such seeker in his
journey to justice. But this obviously is one of the causes of delay in justice.
Of course, under this pattern the party wrongfully gaining within permissible

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limits also stretches the litigation as much as possible. Thus, this has been
the cause of anxiety and concern of various authorities, legislators and
courts. How to eliminate such a long consuming justice? We must confess
that we have still to go a long way before true satisfaction in this regard is
received. Even after one reaches the stage of final decree, he has to undergo
a long distance by passing through the ordained procedure in the execution
proceedings before he receives the bowl of justice.
The courts within their limitation have been interpreting the procedural laws
so as to conclude all possible disputes pertaining to the decretal property,
which is within its fold in an execution proceeding, i.e., including what may
be raised later by way of another bout of litigations through a fresh suit.
Similarly, legislatures equally are also endeavouring by amendments to
achieve the same objective. The present case is one in this regard. Keeping
this in view, we now proceed to examine the present case.
In interpreting any procedural law, where more than one interpretation is
possible, the one which curtails the procedure without eluding justice is to
be adopted. The procedural law is always subservient to and is in aid of
justice. Any interpretation which eludes or frustrates the recipient of justice

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is not to be followed .” [ Shreenath & Anr. v. Rajesh & Ors reported in (1998)
4 SCC 543]
3. We are tempted to preface our judgment with the above quoted observations
of this Court made almost three decades back, as the situation remains the
same even today. It is said that the woes for the litigants in this country start
once they are able to obtain a decree in their favour and are unable to execute
and reap its fruits for years together.
4. These appeals arise from a common judgment and order passed by the High
Court of Judicature at Madras dated 18.12.2019 in Civil Revision Petition
(NPD) No. 4311 of 2011 (“ first revision petition ”) and Civil Revision
Petition (NPD) No. 2151 of 2015 (“ second revision petition ”) filed by the
appellants herein under Section 115 of the Code of Civil Procedure, 1908
(the “ CPC ”) by which the High Court rejected the revision petitions and
thereby affirmed the orders passed by the Additional Subordinate Judge,
Salem (“ ASJ ”) one allowing the application filed by the respondent Nos. 1
and 2 herein, respectively, under Section 47 of the CPC and rejecting the
application filed by the appellants herein seeking amendment in the
execution petition.

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A. FACTUAL MATRIX
5. One Ayyavoo Udayar, the father of the appellants herein entered into an
agreement of sale dated 30.06.1980 with Ramanujan and Jagadeesan, the
respondent nos. 3 and 4 herein (the “ vendors ”) respectively, whereby the
respondents agreed to sell the property under dispute (the “ suit property ”)
for Rs. 67,000/-. An earnest money of Rs. 10,000/- was paid by Ayyavoo
Udayar while entering the agreement of sale. It was agreed between the
parties that the balance of Rs. 57,000/- would be paid on or before
15.11.1980 upon receipt of which, the vendors would execute the sale deed.
6. On 15.11.1980, Ayyavoo Udayar issued a telegram to the vendors requesting
that they should receive the balance consideration and execute the sale deed.
The vendors sent a reply stating that they would execute the sale deed on
20.11.1980, however, no sale deed was executed even on the said date. Since
the vendors did not come forward to execute the sale deed despite notice and
talks of settlement, Ayyavoo Udayar was compelled to file the O.S. No. 514
of 1983 before the Subordinate Judge, Salem praying for specific
performance of agreement of sale i.e. the execution and registration of the
sale deed in respect of the suit properties and delivery of actual physical

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possession of the same. The relief prayed for in the plaint by the original
plaintiff Ayyavoo Udayar is reproduced below:
“Therefore the plaintiff prays that this Honourable
Court may be pleased to pass a decree for specific
performance.
(a) Directing the defendants 1 and 2 to execute and
register the sale deed in respect of the entire suit
properties for the sum of Rs. 67,000/- and deliver
actual possession of the entire suit properties to the
plaintiff, and if the defendants 1 and 2 fail to execute
the sale deed;
(b) The Court may be pleased to execute and register the
sale deed in respect of the entire suit properties for
Rs. 67,000/- in favour of the plaintiff and order
delivery of possession of the suit properties to the
plaintiff;
(c) Directing the defendants 1 and 2 to pay the costs of
the suit;
(d) Directing the defendants 1 and 2 to deduct the value
of the trees cut by them after the date of the suit
agreement;
(e) Granting such other relief or reliefs as the court may
deem fit and necessary under the circumstances of
the case and thus render justice.”

7. Ayyavoo Udayar impleaded the respondent Nos. 1 and 2 respectively herein
in the O.S. No. 514 of 1983 along with the vendors. The respondent nos. 1
and 2 herein are the sons of the vendors’ sister and were inducted into the
suit properties to give an appearance that they were in possession of the said
properties. Ayyavoo Udayar impleaded the respondent nos. 1 and 2 in order

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to avoid any possible obstruction by them and to enable the appellants herein
to take delivery of possession of the suit properties without multiplicity of
proceedings. However, the respondent Nos. 1 and 2 herein thought fit not to
contest suit and allowed the suit to proceed ex parte against them. The
relevant portion of the plaint is reproduced below:
“ 10.⁠ ⁠Now that the time for filing the suit is likely to expire
the plaintiff has been for the past one month requesting
the mediators and the defendants 1 an 2 to see that the
sale deed is executed and property delivered to the
plaintiff after completing the registration formalities.
But the defendants 1 and 2 would not heed to the words
of the plaintiff nor to that of the mediators like
Muthusami Udayar son of Arunachala Udayar of
Masinaickampatti and Chinnasami Udayar of
Ayothiapattinam. On the other hand the 1st defendant
seems to have inducted the defendants 2 and 3 into the
suit properties to make it appear that they (defendants
3 and 4) are in possession of the suit properties. The
defendants 3 and 4 are the 1st defendant's sister's sons.
They are obliged to the defendants 1 and 2. All the
defendants are now, for the past one week giving out in
the village by they would not on any account allow the
plaintiff to have the sale deed executed in his favour or
to enter into the suit property by any means. Hence the
plaintiff is constrained to file this suit for specific
performance. The defendants 3 and 4 are added in
order to avoid any possible obstruction by them and to
enable the plaintiff to take delivery of possession
without multiplicity of proceedings. ”
(Emphasis supplied)


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8. The Additional Subordinate Judge, Salem on 02.04.1986 decreed the original
suit as prayed for and directed the vendors to execute the sale deed within
one month of the passing of the decree, failing which the court would execute
the sale deed. Aggrieved by the said judgment and decree, the vendors
preferred an appeal before the High Court. A single judge partly allowed the
appeal and modified the decree to some extent. The respondent Nos. 1 and 2
did not appear in the appeal proceedings as well.
9. The second appeal preferred by the vendors before a division bench of the
High Court was also dismissed on 19.03.2004 subject to the condition that
the appellants herein would deposit a further sum of Rs. 67,000/- as
consideration within a period of one month from the date of the order.
Though the respondent Nos. 1 and 2 herein were parties to the second appeal
yet they did not participate during the course of the hearing. Pursuant to the
High Court’s direction, the appellants deposited a sum of Rs. 67,000/- on
19.04.2004.
10. Thereafter, the vendors filed a special leave petition before this Court
challenging the judgment of the High Court dated 19.03.2004, which came
to be dismissed on 20.01.2006. The vendors thereafter preferred a review

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petition against the said order which also came to be dismissed by this Court
on 18.04.2006.
11. In the meantime, the appellants filed R.E.P. No. 237 of 2004 for execution
of the sale deed in respect of the suit properties and for delivery of possession
thereof. All the respondents herein were impleaded in the said execution
petition and the vendors were named as the persons against whom the
execution of the decree was sought. The said petition was dismissed on
03.12.2004 by the ASJ on the ground that a special leave petition filed by the
vendors before this Court remained pending.
12. The appellants, aggrieved by the dismissal of the execution petition, filed
Civil Revision Petition (NPD) No. 2032 of 2005 before the High Court and
simultaneously filed another R.E.P. No. 244 of 2005 for getting the sale deed
executed in respect of the suit properties and for delivery of possession
thereof. The High Court vide its order dated 21.02.2006 allowed the CRP
(NPD) No. 2032 of 2005 observing that the ASJ had provided no reason for
dismissing the execution petition of the appellants except that the special
leave petition filed by the respondents herein remained pending. Since the
special leave petition before this Court came to be disposed on 20.01.2006,
the order of the ASJ dated 03.12.2004 was set aside.

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13. Consequent to the order of the High Court dated 20.01.2006, the proceedings
in respect of the R.E.P. No. 237 of 2004 were restored and the appellants
withdrew the R.E.P. No. 244 of 2005.
14. Thereafter, the vendors filed Civil Revision Petition (NPD) No. 1865 of 2007
before the High Court challenging the order of the ASJ accepting the deposit
of Rs. 67,000/- made by the appellants on 19.04.2004 on the ground that such
deposit was not made within a period of thirty days as per the order dated
19.03.2004 of the High Court. This revision petition came to be dismissed
by the High Court on 10.07.2007 and it was observed that the appellants
herein were late by one day in depositing the amount of Rs. 67,000/- because
18.04.2004 was the last day to deposit the amount and it was a holiday. Since
the appellants had deposited the amount on the next working day, the deposit
was considered as well within time.
15. On 17.08.2007, the Executing Court executed a registered sale deed in favour
of the appellants on behalf of all the respondents to the original suit including
the respondent Nos. 1 and 2 herein who were in possession of the property
but did not hold any title in respect thereof.

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16. Aggrieved by the inclusion of the names of respondent Nos. 1 and 2 in the
sale deed, the vendors filed the Civil Revision Petition (NPD) No. 3916 of
2007 before the High Court for deletion of the names of the respondent Nos.
1 and 2 herein. The appellants also filed a memo in this regard and agreed to
the deletion of the names of the respondent Nos. 1 and 2 from the sale deed.
The High Court, by way of its order dated 08.01.2008 allowed the deletion
of the names of the two respondents and directed the Executing Court to
carry out the requisite rectifications to the sale deed in this regard.
Accordingly, a rectification deed dated 25.01.2008 came to be executed
removing the names of the respondent Nos. 1 and 2 herein as the vendors
from the sale deed.
17. On 12.02.2008, the Executing Court passed an order for delivery of
possession of the suit property to the appellants herein. Pursuant to the said
order, the appellants along with the Village Administrative Officer, Surveyor
and Court Amin reached at the site of the property to give effect to the order
for delivery of possession. However, the handing over of the possession of
the property was obstructed by the respondent No. 1 herein who threatened
to self immolate himself if anybody dared to enter the property. As the

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delivery of possession could not be effected, a delivery warrant and
obstruction report were filed before the ASJ on 20.02.2008.
18. Subsequently, the respondent Nos. 1 and 2 herein filed an application dated
12.03.2008 under Section 47 of the CPC (“ R.E.A. 163 of 2011 ”) before the
ASJ on the following grounds:
(1) no notice regarding execution of the sale deed and delivery of
possession was served upon them due to which they were unable to
avail a fair chance of putting forth their objections;
(2) since their names were deleted from the sale deed so executed, the same
was not binding upon them and the executing court had illegally added
their names in the list of parties in the order for delivery of possession;
(3) the appellants herein had acted fraudulently.
An interim relief was also prayed for by the respondent Nos. 1 and 2 herein
to stay the operation of the execution order, which directed delivery of
possession of the suit property to the appellants.
19. After filing the execution application, the respondent Nos. 1 and 2 herein
filed a petition before the Tehsildar, Vazhapadi for inclusion of their names
in the cultivation account for the suit property retrospectively from 1974

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submitting that they were in possession of the same since 1967. The series
of orders delivered in this regard are detailed below:
a) The Tehsildar, Vazhapadi vide order dated 18.10.2008 held that the
respondent Nos. 1 and 2 herein were in possession of the suit property
and ordered that their names be entered in the cultivation account of the
same. The Tehsildar, however, gave no finding regarding inclusion of
the respondents’ names retrospectively from 1974.
b) The respondent Nos. 1 and 2 herein, aggrieved by the order dated
18.10.2008, filed W.P. No. 5032/09 before the Telsildar, Vazhapadi to
get their names registered in the cultivation account in respect of the
suit property from 1974 onwards. While the hearing of the writ petition
was going on, the vendors, whose names were registered as pattadharars
for the suit property, gave a statement that the respondent Nos. 1 and 2
had been in possession of the said land for a long time and that the
vendors did not have any objection to the inclusion of their names in
the cultivation account of the suit property. Upon examination of
relevant documents and the Village Administrative Officer, the
Tehsildar recorded that as the respondent Nos. 1 and 2 had been in
enjoyment of the suit property for a long time, the inclusion of their

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names in the cultivation account for the year 2008 was correct.
However, their names cannot be entered in the cultivation account as
persons being in possession of the suit property from 1974 onwards.
c) Aggrieved by the non-inclusion of their names in the cultivation
account for the suit property retrospectively from 1974, the respondent
Nos. 1 and 2 herein appealed to the Revenue Divisional Officer. It was
held by the Revenue Divisional Officer vide order dated 29.10.2009 that
there is no provision in law to enter the names of the respondent Nos. 1
and 2 in the cultivation accounts retrospectively from 1974 as such
accounts had already been closed and hence, no alteration could be
made therein. The respondents were granted leave to file an application
before the Tehsildar for issuance of a certificate that they were in
possession of the suit property since 1974.
20. The R.E.A. No. 163 of 2011 was initially rejected by the ASJ. Consequently,
the respondent Nos. 1 and 2 herein filed Civil Revision Petition (NPD) No.
2354 of 2008 before the High Court. The High Court vide order dated
25.04.2011 set aside the ASJ’s order, which rejected the execution
application and observed that the same was not passed on merits. The High
Court directed the lower court to dispose of the Execution Application filed

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under Section 47 of the CPC read with Section 151 thereof and pass
appropriate orders within the time specified in the order.
21. Pursuant to the directions of the High Court, the ASJ vide order dated
12.08.2011 allowed R.E.A. No. 163/2011 of the respondent Nos. 1 and 2
herein and held as follows:
a) The High Court, while executing the sale deed, ordered for deletion of
the names of the respondent Nos. 1 and 2 herein as they were not the
vendors who had title to sell the suit property.
b) The respondent Nos. 1 and 2 by way of oral and documentary evidence
have established that they were in possession of the suit property. On
the other hand, the appellants herein did not examine any independent
witnesses to establish that the respondent Nos. 1 and 2 were not in
possession of the suit property.
c) Further, in both the execution petitions namely R.E.P. No. 237 of 2004
and R.E.P. No. 244 of 2005, the appellants did not seek any relief for
delivery of possession from the respondent Nos. 1 and 2.
d) The appellants can take over possession only after taking appropriate
legal steps/proceedings.

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22. Aggrieved by the order of the ASJ, the appellants filed Civil Revision
Petition (NPD) No. 4311 of 2011 (hereinafter referred to as the “ first
revision petition ”) before the High Court. The grounds taken in the said
petition are summarized below:
a) The order of the ASJ dated 12.08.2011 rejecting the appellants’ prayer
on the ground that no notice of execution of the sale deed by the court
was served to the respondent Nos. 1 and 2, was erroneous since notice
to show cause against execution is necessary only in certain
circumstances as laid down in Order XXI Rule 22 of the CPC. It was
submitted that no notice was mandatory in the case on hand as the
execution petition was filed by the decree-holder within two years of
the confirmation of the decree by the High Court.
b) The Executing Court failed to consider that the respondent Nos. 1 and
2 were impleaded as defendants in O.S. No. 514 of 1983 and were aware
of the decree passed against them therein on 02.04.1986. Further, the
respondent Nos. 1 and 2, by their own admission, were fully aware of
the decree for delivery of possession passed against them and as such
the allegations that they were not aware of the events subsequent thereto

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cannot be a ground to obstruct the execution of decree by way of a
petition under Section 47 of the CPC.
c) Subsequent to the execution of agreement to sell between the appellants
and vendors, the respondent no. 1 herein had filed an O.S. No. 1384 of
1980 for permanent injunction against Ayyavoo Udayar, the vendors,
respondent no. 2 herein as well as his father, Venkatasamy Naidu. The
said suit was subsequently dismissed. However, such actions of the
respondent No. 1 would indicate that the contesting respondents herein
were aware about the agreement to sell before the institution of the suit
for specific performance in which they were parties. Therefore, the
respondent Nos. 1 and 2 had no good reason to contend that they were
not aware of the proceedings especially when they continued to remain
parties to the dispute in the original suit till it attained finality by way
of a judgment of this Court.
d) The Executing Court also did not take into consideration the fact that
the execution application of the respondent Nos. 1 and 2 could not have
been allowed because a sale deed had already been executed by the ASJ
in favour of the appellants and against the vendors. The prayer for
delivery of possession was a consequential relief. The rejection of the

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said prayer by the Executing Court based on hyper technical objections
raised by the respondent Nos. 1 and 2, could have been cured by
amending the prayer in R.E.P. No. 237 of 2004.
23. A week after the first revision petition i.e. on 08.11.2011, the appellants filed
the R.E.A. No. 14 of 2012 under Order VI Rule 17 read with Section 151 of
the CPC for amendments in the R.E.P. No. 237 of 2004. The appellants
sought to record that the respondents’ SLP and Review Petition pursuant to
the proceedings in the original suit for specific performance, came to be
dismissed by this Court. Further, the appellants sought amendment of the
prayer made in the execution petition asking for execution of the sale deed
on behalf of the vendors and delivery of possession against all the
respondents. The vendors in their counter-statement alleged that the said
execution application was preferred by the appellants with a mala fide
intention and seeking amendment to the array of parties against whom
execution was prayed for, after a lapse of seven and a half years was legally
untenable.
24. The appellants, on 10.04.2013, sought for one another amendment by way
of R.E.A. No. 145 of 2013 seeking to disclose about the other execution
petitions filed after R.E.P. No. 237 of 2004. The vendors filed a counter-

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statement to the same alleging that said amendment application was filed
with an ulterior motive of delaying the execution proceedings. The
respondent Nos. 1 and 2 herein also filed a counter submitting that they were
not parties to the R.E.P. No. 237 of 2004 as they were not issued notice
regarding the same. They came into knowledge of the execution proceedings
only after the court Amin visited the property to deliver possession of the
property to the appellants.
25. The ASJ vide two separate orders dated 24.04.2015 allowed the execution
petition on the ground that the appellants had not made any prayer in the
execution petition against the respondent Nos. 1 and 2 and since the
respondent Nos. 1 and 2 had proved their possession of the suit property, the
appellants could take possession only after taking necessary legal steps. It
was held that since the appellants had not preferred any appeal or revision
against the order dated 12.08.2011, the same had become final and binding
on the parties. As a result, the orders allowing R.E.P. 237 of 2004 would
have no effect and therefore, the question of amendment of the same did not
arise. The appellants challenged the order dated 24.04.2015 by way of Civil
Revision Petition (NPD) No. 2151 of 2015 (hereinafter referred to as the
“ second revision petition ”).

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Impugned Order of the High Court
26. The High Court vide its common order (the “ impugned order ”) held as
follows:
a) The ASJ’s order allowing the respondents’ execution application under
Section 47 was correct on the aspect of serving of notice. The appellants
although were aware of the fact that the respondent Nos. 1 and 2 were
in possession of the suit property yet they did not ask the court to serve
notice to the said respondents. Since no notice was provided to the
respondent Nos. 1 and 2, the court could not have passed a direction
for delivery of possession.
b) The appellants did not take any steps to amend the execution petition
R.E.P. No. 237 of 2004 till the disposal of the respondents’ execution
application R.E.A. No. 163 of 2011 under Section 47 of the CPC. Once
the said application was allowed, there remained no execution
proceedings pending so far as the respondent Nos. 1 and 2 were
concerned. Therefore, the amendment applications filed in R.E.A. No.
14 of 2012 and R.E.A. No. 145 of 2015 were held to be non-
maintainable.

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c) The appellants did not prefer any appeal against the order of the ASJ
dated 12.08.2011 allowing the application under Section 47 of the CPC,
till 2015 and no reasons were assigned by the appellants for such delay.
d) Thus, the High Court held that there was no material irregularity in the
orders of the ASJ dated 12.08.2011 and 24.04.2015 respectively and
upheld the same.
B. SUBMISSIONS OF THE APPELLANTS
27. Mr. Senthil Jagadeesan, the learned senior counsel appearing on behalf of
the appellants submitted that the High Court could be said to have committed
a serious error in passing the impugned order for the following reasons:
a. The appellants had not filed any appeal or revision against the order of
the ASJ allowing the application under Section 47 of the CPC, till 2015.
However, the appellants had challenged the said order by preferring the
first revision petition as early as 31.10.2011 and the same was decided
by the High Court by way of the impugned order.
b. The appellants had filed the execution petition on 19.07.2004 that is,
after four months of confirmation of the decree in the original suit by
the High Court. The learned counsel invited our attention to the

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provision in Order 21 Rule 22 of the CPC, which stipulates that a notice
to show cause against execution is required to be served compulsorily
only if the application for such execution is made, inter alia , more than
two years after the date of the decree. He submitted that in view of the
said provision, no separate notice was required to be issued to the
judgment debtors in the case on hand as the execution petition was filed
well within the time period of two years.
c. The contention of the respondent Nos. 1 and 2 that they were not aware
about the execution petition was erroneously accepted by the High
Court. The High Court failed to notice that the respondent Nos. 1 and 2
had appeared through their counsel in CRP No. 2032 of 2005 by way
of which the R.E.P. No. 237 of 2004 was restored. Therefore, the
respondents were fully aware about the resumption of proceedings
before the Executing Court but still chose not to participate therein.
Though served with the summons in the original suit proceedings, yet
they chose not to appear, contest or challenge the decree therein as well.
d. The appellants’ application for amending the execution petition was
squarely within the framework of the decree and ought to have been
allowed by the High Court in light of the judgments of this Court in

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State of Bihar & Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti
reported in (2018) 9 SCC 472 and Salem Advocate Bar Association v.
Union of India reported in (2005) 6 SCC 344 . It has been held in these
decisions that rules of procedure are made to advance the cause of
justice and not to defeat it. The courts ought to adopt such construction
of rules or procedure that prevents miscarriage of justice.
28. Mr. Jagadeesan further submitted that a clear case of collusion between the
vendors and the respondent Nos. 1 and 2 is made out. The attempt is to
frustrate the decree and thereby deprive the appellants of its fruits. The same
is evident from the following facts:
a. The names of the respondent Nos. 1 and 2 were deleted from the sale
deed executed by the Executing Court at the behest of the vendors, who
facilitated the filing of objections by respondent Nos. 1 and 2 by getting
their names removed from the sale deed.
b. The respondent Nos. 1 and 2 applied for registration of their names in
the cultivation account of the suit property only in 2008 that is, four
years after the confirmation of the decree by the High Court. Though
they had prayed for inclusion of their names in the revenue records from
1974 onwards, yet the revenue authorities allowed for such inclusion

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only from 2008 onwards. Further, their names were included in the
revenue records solely because of the “no objection” from the vendors
and not because of any independent right that they possessed.
C. SUBMISSIONS OF THE RESPONDENT NOS. 1 & 2
29. Mr. Rahul Jain, the learned counsel appearing on behalf of the respondent
Nos. 1 and 2 addressed himself on the following points:
i. The decree travelled beyond the judgment,
ii. No effective proceedings were instituted by the appellants against the
respondent Nos. 1 and 2 herein,
iii. The respondent Nos. 1 and 2 have a lawful title and have been in lawful
and uninterrupted possession of the suit properties since 1967,
iv. The appellants had not instituted any suit for recovery of possession,
and
v. The civil courts inherently lacked jurisdiction to decide the question of
possession as the respondent Nos. 1 and 2 were cultivating tenants.
30. The learned counsel submitted that the original suit was for specific
performance of the agreement of sale of the suit property and respondent
Nos. 1 and 2 were not parties to the said agreement. They were impleaded in

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the original suit stating that they were in possession of the suit property. Even
though the appellants were aware of the said fact, yet they did not pray for
dispossession of the respondent Nos. 1 and 2 and no pleadings were made
against them.
31. Further, the trial court’s order dated 02.04.1986, having considered the issue
of possession, decreed the suit “as prayed for”. The decree of the trial court
dated 02.04.1986 is reproduced below:
“This suit coming on 21.3.1986 for final hearing before
me in the presence of Thiru. A. Duraisami, Counsel for
the plaintiff and of G. Perumal counsel for the
defendants and having stood over till this day for
consideration this court doth order and decree as
follows:-
1. that the defendants 1 and 2 do execute the sale deed
for Rs. 67000/- in favour of the plaintiff in respect of
the entire suit properties described hereunder within
one month from this date and register the same;
2. that the plaintiff to deposit the balance of Rs. 57000/-
into court to perform the sale agreement;
3. that the defendants 1 and 2 are at liberty to withdraw
the said sum from the court: after executing the sale
deed and register it in favour of the plaintiff.
4. that the defendants do deliver possession of the suit
properties to the plaintiff; (…)”

32. The learned counsel submitted that while Clause 4 of the decree directed that
“ the defendants do deliver possession of the suit properties to the plaintiff ”,

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such general language should be read within the context of the wordings in
the other directions issued by the decree, the reasoning of the trial court in
its judgment, and the specific prayer sought in the original plaint, as the suit
was for specific performance.
33. Mr. Jain relied on the decision of this Court in Rajinder Kumar v. Kuldeep
Singh reported in (2014) 15 SCC 529 to submit that the question of
alternative reliefs does not arise in case of a suit for specific performance,
when it is decreed as prayed for. The relevant portion of the judgment relied
upon is reproduced below:
“21. If the suit for specific performance is not decreed
as prayed for, then alone the question of any reference
to the alternative relief would arise. Therefore, there is
no question of any ambiguity. As held by this Court in
Topanmal Chhotamal v. Kundomal Gangaram and
consistently followed thereafter, even if there is any
ambiguity, it is for the executing court to construe the
decree if necessary after referring to the judgment. If
sufficient guidance is not available even from the
judgment, the court is even free to refer to the pleadings
so as to construe the true import of the decree. No doubt,
the court cannot go behind the decree or beyond the
decree. But while executing a decree for specific
performance, the court, in case of any ambiguity, has
necessarily to construe the decree so as to give effect to
the intention of the parties.”


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34. As regards the question whether the appellants had instituted an effective
proceeding against the respondent Nos. 1 and 2, the learned counsel
submitted that:
a. The respondents were not a necessary party to the original suit for
specific performance as they were neither parties to the agreement of
sale nor lis pendens purchasers of the suit properties. The appellants
sought no relief of possession against the respondent Nos. 1 and 2 in
the original suit despite impleading them as parties because they were
in actual physical possession of the suit properties.
b. In R.E.P. 237 of 2004, the appellants sought relief only against the
vendors and not against the respondent Nos. 1 and 2 despite impleading
them in the execution petition. Further, no notice was served to the said
respondents and as a result, the respondents were not afforded an
opportunity to be heard by the Executing Court.
c. The respondent Nos. 1 and 2 were also not parties to the sale deed
registered by the Executing Court and their names were deleted
therefrom without any objection by the appellants.

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35. The learned counsel, with a view to establish that the respondent Nos. 1 and
2 were in lawful and uninterrupted possession of the suit properties since
1967, submitted as follows:
a. The respondent Nos. 1 and 2 stated that their father was in possession
of the suit property since 1967 and was cultivating the land. After his
demise in 1983, the respondents have been in continuous possession of
the suit property.
b. Further, the order of the Revenue Divisional Officer dated 29.10.2009
held that the respondent Nos. 1 and 2 have been in enjoyment of suit
property for over 40 years and the certificate of possession issued in this
regard recognizes the same.
36. On the question whether the appellants were supposed to bring a separate
suit for recovery of possession, Mr. Jain submitted that:
a. The appellants, despite being aware that the respondent Nos. 1 and 2
were in possession of the suit property, brought no suit for recovery of
possession against them. The onus was on the appellants to establish
that they had a better title to the suit property as against the continuous
possession claimed by the respondent Nos. 1 and 2.

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b. The learned counsel relied on this Court’s decision in Smriti Debbarma
v. Prabha Ranjan Debbarma reported in 2023 SCC OnLine SC 9 to
contend that the appellants could not have claimed possession by way
of mere execution proceedings without first establishing a better title to
the properties in question. The relevant portion of the judgment relied
upon is reproduced below:
“ (…) The defendants cannot be dispossessed unless the
plaintiff has established a better title and rights over the
Schedule ‘A’ property. A person in possession of land in
the assumed character as the owner, and exercising
peaceably the ordinary rights of ownership, has a legal
right against the entire world except the rightful owner.
A decree of possession cannot be passed in favour of the
plaintiff on the ground that defendant nos. 1 to 12 have
not been able to fully establish their right, title and
interest in the Schedule ‘A’ property. The defendants,
being in possession, would be entitled to protect and
save their possession, unless the person who seeks to
dispossess them has a better legal right in the form of
ownership or entitlement to possession. ”

c. Further, the appellants, being the decree holders, failed to file an
application to seek recovery of possession under Order XXI Rule 97,
after having been obstructed by the respondents. Such process could not
have been circumvented by the appellants by seeking an amendment to

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their execution petition, especially after the respondents’ Section 47
application had already been allowed by the Executing Court.
37. Mr. Jain further submitted that the respondent Nos. 1 and 2 are cultivating
tenants in continuous possession of the suit property and accordingly are
protected under Sections 3 and 6 of the Tamil Nadu Cultivating Tenants’
Protection Act, 1955 respectively which imposes a bar on the jurisdiction of
the civil courts in matters of eviction of cultivating tenants.
38. The learned counsel relied on this Court’s decision in Sunder Dass v. Ram
Prakash reported in (1977) 2 SCC 662 to submit that a challenge to the
validity of a decree can be set up even at the stage of execution proceedings,
in cases where the civil court inherently lacks jurisdiction. The relevant
portion of the judgment relied upon is reproduced below:
“ 3. Now, the law is well settled that an executing court
cannot go behind the decree nor can it question its
legality or correctness. But there is one exception to this
general rule and that is that where the decree sought to
be executed is a nullity for lack of inherent jurisdiction
in the court passing it, its invalidity can be set up in an
execution proceeding. Where there is lack of inherent
jurisdiction, it goes to the root of the competence of the
court to try the case and a decree which is a nullity is
void and can be declared to be void by any court in
which it is presented. Its nullity can be set up whenever
and wherever it is sought to be enforced or relied upon
and even at the stage of execution or even in collateral

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proceedings. The executing court can, therefore,
entertain an objection that the decree is a nullity and can
refuse to execute the decree. By doing so, the executing
court would not incur the reproach that it is going
behind the decree, because the decree being null and
void, there would really be no decree at all. Vide Kiran
Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1
SCR 117] and Seth Hiralal Patni v. Sri Kali Nath [AIR
1962 SC 199 : (1962) 2 SCR 747]. It is, therefore,
obvious that in the present case, it was competent to the
executing court to examine whether the decree for
eviction was a nullity on the ground that the civil court
had no inherent jurisdiction to entertain the suit in which
the decree for eviction was passed. If the decree for
eviction was a nullity, the executing court could declare
it to be such and decline to execute it against the
respondent.”


39. In the last, the learned counsel submitted that the Executing Court and High
Court were correct in allowing the application under Section 47 to afford the
respondent Nos. 1 and 2 to prove their long and continuous possession of the
suit property as cultivating tenants.
D. ISSUES TO BE DETERMINED
40. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our
consideration:

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(i) Whether the courts below committed any error in upholding the
objections raised by the respondent nos. 1 and 2 herein against
execution of the decree on the claim of being in possession of the suit
property in their capacity as cultivating tenants?
(ii) Whether the respondent Nos. 1 and 2 are entitled to the protection of
the Tamil Nadu Cultivating Tenants’ Protection Act, 1955 and could the
Executing Court have decided the question of validity of the decree on
this ground?
E. ANALYSIS

(i) Relevant statutory provisions

41. Before adverting to the rival submissions canvassed on either side, we must
refer to few relevant provisions of the CPC, which read thus :-
Section 47 reads as follows:

“ 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.

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(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 1.-- 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. ”


Order XXI, Rule 35 reads as follows:
“ 35. Decree for immovable property .-
(1) Where a decree is for the delivery of any immovable
property, possession thereof shall be delivered to the
party to whom it has been adjudged, or to such person
as he may appoint to receive delivery on his behalf, and,
if necessary, by removing any person bound by the
decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of
immovable property, such possession shall be delivered
by affixing a copy of the warrant in some conspicuous
place on the property and proclaiming the beat of drum,

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or other customary mode, at some convenient place, the
substance of the decree.

(3) Where possession of any building on enclosure is to
be delivered and the person in possession, being bound
by the decree, does not afford free access, the Court,
through its officers, may, after giving reasonable
warning and facility to any woman not appearing in
public according to the customs of the country to
withdraw, remove or open any lock or bolt or break open
any door or do any other act necessary for putting the
decree-holder in possession.”


Order XXI, Rule 97 reads as follows:

“ 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 the upon the
application in accordance with the provisions herein
contained.”


Order XXI, Rule 98 reads as follows:

“ 98. Orders after adjudication .
(1) Upon the determination of the questions referred to
in rule 101, the Court shall, in accordance with such
determination and subject to the provisions of sub-rule
(2),-

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(a) make an order allowing the application and
directing that the applicant be put into the possession of
the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the
case, it may deem fit.

(2) 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, or by any transferee, where such transfer was
made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into
possession of the property, and where the applicant is
still resisted or obstructed in obtaining possession, the
Court may also, at the instance of the applicant, order
the judgment-debtor, or any person acting at his
instigation or on his behalf, to be detained in the civil
prison for a term which may extend to thirty days.”


Order XXI, Rule 99 reads as follows:

“ 99. Dispossession by decree-holder or purchaser :-
(1) Where any person other than the judgment-debtor is
dispossessed of immovable property by the holder of a
decree for the possession of such property or, where such
property has been sold in execution of a decree, by the
purchaser thereof, he may make an application to the
Court complaining of such dispossession.
(2) Where any such application is made, the Court shall
proceed to adjudicate upon the application in
accordance with the provisions herein contained.”

Order XXI, Rule 100 reads as follows:

“ 100. Order to be passed upon application
complaining of dispossession.

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Upon the determination of the questions referred to in
rule 101, the Court shall, in accordance with such
determination,-
(a) make an order allowing the application and
directing that the applicant be put into the possession of
the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the
case, it may deem fit.”

Order XXI, Rule 101 reads as follows:

“ 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.”

Order XXI, Rule 103 reads as follows:

“ 103 . Orders to be treated as decrees.
Where any application has been adjudicated upon under
rule 98 or rule 100 the other made thereon shall have
the same force and be subject to the same conditions as
to an appeal or otherwise as if it were a decree.”


(ii) Nature of application under Order XXI Rule 97


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42. It is a settled position of law that an application under Order XXI 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.
43. This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal reported
in ( 1997) 3 SCC 697 , has held that :-
“ 4. (…) A conjoint reading of Order XXI 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 XXI Rule 35, then the decree-holder has
to move an application under Order XXI 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
XXI Rule 97 sub-rule (2) read with Order XXI Rule 98.
It is obvious that after such adjudication if it is found
that the resistance or obstruction was occasioned
without just cause by the judgment-debtor or by some
other person at his instigation or on his behalf then such
obstruction or resistance would be removed as per
Order XXI 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

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decree under Order XXI Rule 101 and no separate suit
would lie against such order meaning thereby the only
remedy would be to prefer an appeal before the
appropriate appellate court against such deemed
decree.
(2) If for any reason a stranger to the decree is already
dispossessed of the suit property relating to which he
claims any right, title or interest before his getting any
opportunity to resist or offer obstruction on spot on
account of his absence from the place or for any other
valid reason then his remedy would lie in filing an
application under Order XXI Rule 99, CPC claiming
that his dispossession was illegal and that possession
deserves to be restored to him. If such an application is
allowed after adjudication then as enjoined by Order
XXI Rule 98 sub-rule (1) CPC the Executing Court can
direct the stranger applicant under Order XXI Rule 99
to be put in possession of the property of if his
application is found to be substanceless it has to be
dismissed. Such an order passed by the Executing Court
disposing of the application one way or the other under
Order XXI Rule 98 sub-rule (1) would be deemed to be
a decree as laid down by Order XXI Rule 103 and would
be appealable before appropriate appellate forum. But
no separate suit would lie against such orders as clearly
enjoined by Order XXI Rule 101.
5. In short the aforesaid statutory provisions of Order
XXI lay down a complete code for resolving all disputes
pertaining to execution of 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 a purported 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 in only under Order XXI Rule 97 sub-rule
(1) and he cannot bypass such obstruction and insist on

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re- issuance of warrant for possession under Order XXI
Rule 35 with the help of police force, as that course
would amount to bypassing and circumventing the
procedure laid down under Order XXI Rule 97 in
connection with removal of obstruction of purported
strangers to the decree. Once such an obstruction is on
the record of the Executing Court it is difficult to
appreciate how the Executing Court can tell such
obstructionist that he must first lose possession and then
only his remedy is to move an application under Order
XXI Rule 99, 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 XXI Rule 99. This view of the
High Court 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 actually 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 as per Order XXI
Rule 99. Order XXI Rule 97 deals with a stage which is
prior to the actual 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 XXI Rule 99 on the other
hand deals with the subsequent stage in the execution
proceedings where a stranger claiming any right, title
and interest in the decretal property might have got
actually dispossessed and claims restoration
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

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XXI 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 the 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 XXI Rule 97 in this connection by
taking the view that only remedy of such stranger to the
decree lies under Order XXI Rule 99 and he has no locus
standi to get adjudication of his claim prior to the actual
delivery of possession to the decree-holder in the
execution proceedings. The view taken by the High
Court in this connection also results in patent breach of
principles of natural justice as the obstructionist, who
alleges to have any independent right, title and interest
in the decretal property and who is admittedly not a
party to the decree even though making a grievance
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 or 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 go overboard without being
considered on merits and such obstructionist would be
condemned 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 XXI Rule 97, 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

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multiplicity of proceedings and parallel proceedings are
avoided and the gamut laid down by Order XXI 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.
6. (…) A reading of Order 21, Rule 97 CPC clearly
envisages that "any person" even including the
judgment-debtor irrespective whether he claims
derivative title from the judgment-debtor or set up his
own right, title or interest dehors the judgment-debtor
and he resists execution of a decree, then the court
in addition to the power under Rule 35(3) has been
empowered to conduct an enquiry whether the
obstruction by that person in obtaining possession of
immovable property was legal or not. The decree-
holder gets a right under Rule 97 to make an
application against third parties to have his
obstruction removed and an enquiry thereon could be
done. Each occasion of obstruction or resistance
furnishes a cause of action to the decree-holder to
make an application for removal of the obstruction or
resistance by such person (…)”
(Emphasis supplied)

44. In Shreenath (supra) , the application under Order XXI Rule 97 was filed by
the tenants who were not parties to the suit. The question was whether the
tenants could maintain an application under Order XXI Rule 97. This Court
while interpreting the words 'any person' held that any person includes even
persons not bound by the decree. Paragraphs 10 and 11 read thus :-

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“10. Under sub-clause 1 order 21, Rule 35, the
Executing Court delivers actual physical possession of
the disputed property to the decree-holder and, if
necessary, by removing any person bound by the decree
who refuses to vacate the said property. The significant
words are by removing any person bound by he decree.
Order 21, Rule 36 conceives of immovable property
when in occupancy of a tenant or other person not
bound by the decree, the Court delivers possession by
fixing a copy of the warrant in some conspicuous place
of the said property and proclaiming to the occupant by
beat of drum or other customary mode at some
convenient place, the substance of the decree in regard
to the property. In other words, the decree-holder gets
the symbolic possession. Order 21, rule 99 conceives of
resistance or obstruction to the possession of immovable
property when made in execution of a decree by " any
person". this may be either by the person bound by the
decree, claiming title through judgment debtor or
claiming independent right of his own including tenant
not party to the suit or even a stranger. A decree holder,
in such case, may make an application to the Executing
Court complaining such resistance, for delivery of
possession of the property. Sub-clause (2) after 1976
substitution empowers the executing Courts when
such claim is made to proceed to adjudicate upon the
applicants claim in accordance with provisions
contained hereinafter. This refers to Order 21, Rule
101 (As amended by 1976 Act) under which all
questions relating to right, title or interest in the
property arising between the parties under Order 21,
Rule 97 or Rule 99 shall be determined by the Court
and not by a separate suit, By the amendment, one has
not to go for a fresh suit but all matter pertaining to
that property even if obstructed by a stranger is
adjudicated and finality given even in the executing
proceedings. We find the expression "any person"
under sub-clause (1) is used deliberately for widening

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the scope of power so that the Executing court could
adjudicate the claim made in any such application
under order 21, Rule 97. Thus by the use of the words
'any person' it includes all persons resisting the
delivery of possession, claiming right in the property
even those not bound by the decree, includes tenants
or other persons claiming right on their own including
a stranger.
11. So, under Order 21, Rule 101 all disputes between
the decree-holder and any such person is to be
adjudicated by the Executing Court. A party is not
thrown out to relegate itself to the long drawn out
arduous procedure of a fresh suit. This is to salvage
the possible hardship both to the decree-holder and
other person claiming title on their own right to get it
adjudicated in the very execution proceedings. We find
that order 21, Rule 35 deals with cases of delivery of
possession of an immovable property to the decree-
holder by delivery of actual physical possession and by
removing any person in possession who is bound by a
decree, while under Order 21, Rule 36 only symbolic
possession is given where tenant is in actual
possession. Order 21, rule 97 as aforesaid, conceives
of cases where delivery of possession to decree-holder
or purchaser is resisted by any person. 'Any person' ,
as aforesaid, is wide enough to include even a person
not bound by a decree or claiming right in the property
on his own including that of a tenant including
stranger. ”
(Emphasis supplied)

45. In Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Anr. reported in 1998 (3)
SCC 723 , a three Judge Bench of this Court has observed that a third party
to the decree including the transferee pendente lite can offer resistance or

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obstruction and his right has to be adjudicated under Order XXI Rule 97 of
CPC. The relevant portion of the said judgment is reproduced below:
“9. At the outset, we may observe that it is difficult to
agree with the High Court that resistance or
obstructions made by a third party to the decree of
execution cannot be gone into under Order 21 Rule 97
of the Code. Rules 97 to 106 in Order 21 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 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 21 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 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 transferee and on
a finding in the affirmative regarding that point the

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execution 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--

14. It is clear that executing court can decide whether
the resistor 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 21 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
resistor. Of course the Court can direct the parties to
adduce evidence for such determination. If the Court
deems it necessary. ”
(Emphasis supplied)

46. This Court, in NSS Narayan Sarma & Ors. v. Goldstone Exports (P) Ltd.
& Ors ., reported in (2002) 1 SCC 662 , has held as under:-
“15. Provision is made in the Civil Procedure Code for
delivery of possession of immovable property in
execution of a decree and matters relating thereto. In
Order 21 Rule 35 provisions are made empowering the
executing court to deliver possession of the property to
the decree holder if necessary, by removing any person
bound by the decree who refuses to vacate the property.
In Rule 36 provision is made for delivery of formal or
symbolical possession of the property in occupancy of a
tenant or other person entitled to occupy the same and
not bound by the decree to relinquish such occupancy.

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Rules 97 to 101 of Order 21 contain the provisions
enabling the executing court to deal with a situation
when a decree holder entitled to possession of the
property encounters obstruction from any person. From
the provisions in these rules which have been quoted
earlier the scheme is clear that the legislature has vested
wide powers in the executing court to deal with all issues
relating to such matters. It is a general impression
prevailing amongst the litigant public that difficulties of
a litigant are by no means over on his getting a decree
for immovable property in his favour. Indeed, his
difficulties in real and practical sense, arise after getting
the decree. Presumably, to tackle such a situation and to
allay the apprehension in the minds of litigant public
that it takes years and years for the decree holder to
enjoy fruits of the decree, the legislature made drastic
amendments in provisions in the aforementioned Rules,
particularly, the provision in Rule 101 in which it is
categorically declared that 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. On a fair reading of the rule it is
manifest that the legislature has enacted the provision
with a view to remove, as far as possible, technical
objections to an application filed by the aggrieved
party whether he is the decree holder or any other
person in possession of the immovable property under
execution and has vested the power in the executing
court to deal with all questions arising in the matter
irrespective of whether the Court otherwise has
jurisdiction to entertain a dispute of the nature. This

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clear statutory mandate and the object and purpose of
the provisions should not be lost sight of by the Courts
seized of an execution proceeding. The Court cannot
shirk its responsibility by skirting the relevant issues
arising in the case.
--xxx--
19. From the principles laid down in the decisions noted
above, the position is manifest that when any person
claiming title to the property in his possession obstructs
the attempt by the decree-holder to dispossess him from
the said property the executing Court is competent to
consider all questions raised by the persons offering
obstruction against execution of the decree and pass
appropriate order which under the provisions of Order
21 Rule 103 is to be treated as a decree.”
(Emphasis supplied)

47. In Samir Singh and Anr. vs. Abdul Rab , reported in (2015) 1 SCC 379 ,
this Court, after considering its previous judgment in Brahmadeo
Chaudhary (supra) has held thus:-
“26. The aforesaid authorities clearly spell out that the
court has the authority to adjudicate all the questions
pertaining to right, title or interest in the property
arising between the parties. It also includes the claim
of a stranger who apprehends dispossession or has
already been dispossessed from the immovable
property. The self-contained Code, as has been
emphasised by this Court, enjoins the executing court to
adjudicate the lis and the purpose is to avoid multiplicity
of proceedings. It is also so because prior to 1976
amendment the grievance was required to be agitated by
filing a suit but after the amendment the entire enquiry
has to be conducted by the executing court. Order XXI,

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Rule 101 provides for the determination of necessary
issues. Rule 103 clearly stipulates that when an
application is adjudicated upon under Rule 98 or Rule
100 the said order shall have the same force as if it were
a decree.
Thus, it is a deemed decree. If a Court declines to
adjudicate on the ground that it does not have
jurisdiction, the said order cannot earn the status of a
decree. If an executing court only expresses its inability
to adjudicate by stating that it lacks jurisdiction, then
the status of the order has to be different. (...)”
(Emphasis supplied)

48. A conjoint reading of the relevant provisions and the principles laid down
by this Court makes it clear that in execution of decree for possession of
immovable property, the executing court delivers actual physical
possession of the decretal land to the decree holder. Rule 35 confers
jurisdiction on the executing Court to remove any person, who is bound by
the decree and who refuses to vacate the property. The words “any person
who is bound by the decree”, clearly mandate that removal can only be of
a person who is bound by the decree. Rules 97 to 101 deal with situation
when execution is obstructed or resisted by “any person” claiming right,
title or interest in the property. The words “any person” include even a
stranger to a decree resisting the decree of possession as not being bound
by a decree or by claiming independent right, title or interest to the property.

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49. Thus, Rule 97 not only provides remedy to a decree holder in obtaining
possession of an immovable property but also to a stranger who obstructs or
resists delivery of possession of the property by claiming derivative title
from the judgment debtor or independent right, title or interest in the decretal
property. Whereas, Rule 99 gives right to a third party claiming right, title or
interest in the property to seek restoration of the decretal property. Suffice it
to say that the remedy under Rule 99 is available when a person claiming
right to the decretal property is already dispossessed.
50. Rule 101 enjoins upon the executing Court dealing with application under
Rule 97 or 99 to determine all questions including questions relating to right,
title or interest in the property, arising between the parties and relevant to the
adjudication of the application. As held by this Court in Silverline
Forum (supra) the question that the executing court is obliged to determine
under Rule 101 must possess to adjuncts viz. (i) that such question should
have legally arisen between the parties and (ii) such question must be
relevant for consideration and determination between the parties. Upon
adjudication of such questions, the executing court is under an obligation to
pass appropriate order as contemplated under Rule 98 or 100, as the case
may be. When eventually such order is passed, it would be treated as decree

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and no separate Suit would lie against such order. It therefore follows that
the only remedy is to prefer an appeal before the appropriate court against
such deemed decree.

(iii) Section 47 of the CPC vis-à-vis Order XXI Rule 97 of the CPC

51. 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.

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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. Rule 101 of Order XXI provides as
under:
“ 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.”

52. Thus the cumulative effect of all these rights read together is that if an
application under Order XXI, Rule 97 is made, then its determination will be
under Rule 101 and then Rule 103 further provides that where any
application has been adjudicated upon under Rules 98 or 100, the order made
thereon shall have the same force and will be subject to the same conditions
as to an appeal or otherwise as if it were a decree. Under Section 47 of the
CPC all questions relating to the execution, discharge or satisfaction of the

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decree, have to be determined by the executing court whereas under Rule
101 all questions including question relating to right, title or interest in the
property arising between the parties to the proceedings have to be determined
by the executing court. Section 47 is a general provision whereas Order XXI
Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals
with executions of all kinds of decrees whereas Order XXI, Rules 97 and
101 deal only with execution of decree for possession. Apart from that,
earlier, i.e., prior to the amendment, every order falling under Section 47 was
appealable (as the terms ‘decree” included the order under Section 47 of the
CPC) whereas now only certain orders as provided for under Order XXI have
been made appealable.
53. In such circumstances referred to above the application of the respondents
No. 1 and 2 under Section 47 of the CPC bearing R.E.A. No. 163 of 2011
was in substance an application for determination of their possessory rights
under Order XXI Rule 97.
54. This Court in Bhanwar Lal v. Satyanarain , reported in (1995) 1 SCC 6 , has
held that even an application filed under Section 47 would be treated as an
application under Order XXI Rule 97 and an adjudication is required to be
conducted under Rule 98. Dispossession of the applicant from the property

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

6. When the appellant had made the application on 25-
5-1979 against Satyanarain, in law it must be only the
application made under Order 21, Rule 97(1) of CPC.
The executing court, obviously, was in error in
directing to make a fresh application. It is the duty of
the executing court to consider the averments in the
petition and consider the scope of the applicability of
the relevant rule. On technical ground the executing
court dismissed the second application on limitation and
also the third application, on the ground of res judicata
which the High Court has in the revisions now upheld.
The procedure is the handmaid of substantive justice but
in this case it has ruled the roost.

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7. In the above view we have taken, the High Court has
committed grievous error of jurisdiction and also patent
illegality in treating the application filed by the
appellant as barred by limitation and the third one on
res judicata. Once the application, dated 25-5-1979 was
made, the Court should have treated it to be one filed
under Order 21, Rule 97(1) CPC. The question of res
judicata for filing the second and third applications does
not arise. Under these circumstances the appellate
court, though for different reasons was justified in
directing an enquiry to be conducted for removal of the
obstruction or resistance caused by Satyanarain under
Order 21 Rules 35(3) and 97(2) and Order 21, Rules 101
and 102 of CPC.”
(Emphasis supplied)

55. Before we proceed further, we must look into some part of the reasonings of
the Executing Court as well as the High Court.
56. The Executing Court in its order dated 12.08.2011 observed as under:
“1. The petition is filed by the petitioners against the
respondents under Section 47 CPC stating that they are in
possession of the suit properties; that their objections
should be enquired into and that the execution petition
should be dismissed.

2. Gist of the Petition:
The petitioners are defendants, in O.S.No.514/83. It was
decided against the petitioners. The petitioners are not
aware of anything that has happened after the judgement
dated 2.4.86. On 20.2.08 the Court Amin, Respondents, the
Village Administrative Officers and few others came to the
suit property, tried to vacate the petitioners and take

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possession. In E.P.No.237/04, the petitioners were not
served with any notice. When they approached their
Advocate and stated the details, he told that the E.P. was
filed against Ramanujam and Jagadeesan.

Thereafter, the petitioners have filed this petition of
objection. The respondents have filed R.E.P.No.237/04
praying for execution of the Sale Deed for the suit property.
The petitioners are added for namesake and no notice is
served upon the petitioners. Having impleaded these
petitioners in the execution petition, not sending notice to
them is legally unsustainable. The respondents have filed
E.P.No.244/05 adding the petitioners as parties. But notice
is not sent to the petitioners. The E.P. was closed as not
pressed.

On the basis of C.R.P.No.2032/05, E.P.No.237 /04 is taken
on file. Vihen the Revision is pending before the High
Court, the respondents have filed an execution petition.
The respondents have not approached the court with clean
hands. Even after E.P.No.237 /04 is taken on file, no notice
was sent to the petitioners. A sale deed dated 17.8.2007
was executed on behalf of the petitioners also. Thereafter,
another deed was written on 25.1.08 by removing the
names of the petitioners. The sale deed will not bind the
petitioners. To show that the suit properties are in the
possession and enjoyment of the petitioners from 1967 till
date, the Adangal register is filed. The petitioners will be
put to irreparable loss if delivery is ordered. The petition
is to be allowed.



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3. The gist of the Counter Statement filed by the 7th
respondent adopted by the respondents 1 to 6 and 8 is as
follows:

The petition filed by the petitioners is not maintainable.
The petitioners are parties to O.S.No.514/83 and also the
subsequent proceedings thereafter. The petitioners are the
1st defendant Ramanujam's sister's sons. The 1st
petitioners filed a suit in O.S.No.1384/1980 against
Ayyavu Udayar, Ramanujam and others for permanent
injunction. In the said suit, Ramanujam objected the claim
of the petitioners and the suit was dismissed on 29.7.1982.
As the petitioners were continuously troubling the father of
the respondents, they were added as defendants 3 and 4 in
the suit O.S.No.514/83. The defendants 1 and 2 filed an
appeal A.S.No.469/86 before the High Court adding the
petitioners also as parties. After the death of Ayyavu
Udayar, these respondents were added as respondents 4 to
11 therein. On 29.9.2000, the column 6 of the decree in
O.S.No.514/83 was removed and the appeal was
dismissed. During the pendency of the appeal, the 1st
respondent and his son entered into an agreement with
Arivazhagan to sell the property.

Against the dismissal of the appeal, the defendants 1 and 2
filed LP.A. No.62/2001 against the petitioners and the
respondents. As per the Order in LPA, the respondents
deposited a further sum of Rs.67,000/- before the Court on
19.4.04. During the pendency of E.P.No.237/04, the
defendants 1 & 2 filed SLP No.18184/2004 before the
Supreme Court against the petitioners and the legal heirs
of Ayyavu Udayar. when a Memo was filed before this
Court about the pendency of the SLP, this Court dismissed

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the E.P. After the High Court Order, the execution petition
237 / 04 was taken on file, on endorsement E.P.No.244/05
was dismissed as not pressed. The LPA was dismissed on
20.1.2006. The defendants 1 & 2 filed a review petition
No.359/06 and the same was dismissed on 18.4.06. The
petitioners are aware of all the proceedings upto the
Supreme Court arid they were also parties in the
proceedings. The 1st petitioner Rajamani entered into an
agreement with one P.R. Jayakumar, Advocate.
O.S.No.197/87 is now pending as 327/10. The petitioners
do not have rights over the suit properties. They do not
have any rights w object delivery of possession. The
petitioners are not in possession of title suit properties. The
petition is to be dismissed.
4. Whether the petition is bound to be allowed?
5. On the side of the petitioners, PW-1 was examined and
Exhibits P-1 to P-11 were marked. On the side of the
respondents, R- 1 was examined and Exhibits R-1 to R-16
were marked.

6. ORDER:
Both the sides argued their case on the basis of the petition
and the reply filed by them. The case records were
considered. Stating that the petitioners are in possession of
the suit properties of O.S.No.514/83, on the side of the
petitioners, the 2nd petitioner Ethirajulu was examined as
PW-1 and 11 documents were marked. The order passed by
the Tahsildar and RDO and six cultivation accounts are
there.
On the side of the respondents, the Jill respondent was
examined as RW-1and16 documents were marked.


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On the side of the petitioners, it was argued that the
petitioners are in possession and enjoyment of the suit
properties and that Ramanujam & Jagadeesan are not in
possession of the same. The petitioners have filed the
cultivation account and the orders passed by the orders
passed by the RDO and stated that they are in possession
of the properties. The documents filed by the petitioners
confirm the same. The petitioners have also stated that they
are in possession of the properties from 1967.

On the side of the respondents, the arguments by the
petitioners were vehemently opposed and it was stated that
the petitioners do not have any right to object and oppose
the delivery of possession. The Ld. Counsel for the
petitioners argued that Ihe respondents have filed two
execution petitions viz., E.P.No.237 /04 and
E.P.No.244/05. On perusal of the court records, it is seen
that the respondents filed E.P.No.237 /04 in 2004, got the
sale deed and for delivery of possession of property made
prayer only against Ramanujam and Jagadeesan. and that
the petitioners are simply added as parties therein. When
Ramanujam and Jagadeesan filed a Memo before this
Court that SLP is pending, E.P.No.237 /04 was dismissed
by this court. Challenging that order, the respondents filed
Revision Petition for restoration of E.P.No.237 /04. In the
meantime, the respondents filed the second execution
petition E.P.No.244/05 against Ramanujam and
Jagadeesan. A prayer which is made in E.P.No.237 /04 is
also made in the second execution petition. In both the
petitions, even though the names of Rajamani and
Ethirajulu are stated, the prayer is made only against
Ramanujam and Jagadeesan alone. The Senior Counsel
appearing for the respondents has also accepted the same.
A perusal of the records also show that it is true that no
relief is claimed against the petitioners in column 9 of the
E.P. and that prayer is made in column 9 only against
Ramanujam and Jagadeesan as accepted by the Senior
Advocate.

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The Learned Counsel for the petitioners argued that no
notice was sent to the petitioners herein in the E.P. and
that notice was sent only to Ramanujam and Jagadeesan.
A perusal of the court records also shows that notice is sent
from the court in the execution petition only to Ramanujam
and Jagadeesan. Even though the petitioners are shown as
respondents 3 & 4 in the execution petition, no notice was
sent to them, as no prayer was made against them. The
Senior Advocate for foe respondents has not denied the
same. In E.P. No.237/04, the court has executed the sale
deed on behalf of Ramanujam, Jagadeesan, Ethirajulu and
Rajamani. Challenging the said order, Ramanujam and
Jagadeesan filed a revision before the Hon'ble High Court.
The Hon'ble High Court has also directed that the names
of Rajamani and Ethirajulu may be removed and this court
has also executed a rectification deed removing the names
of the petitioners. The RW-1 has also accepted this fact in
the cross examination. The 1st respondent has also
accepted in the cross examination that Ramanujam and
Jagadeesan filed C.R.P. before the High Court stating that
it is not proper to execute the sale deed on behalf of all the
4 persons; that it is ordered by the High Court to remove
the names of Rajamani and Ethirajulu and execute the sale
deed and that as the names of Rajamani and Ethirajulu are
removed, the sale deed is not binding so far as Rajamani
and Ethirajulu are concerned. It is accepted on the side of
the respondents that the order and the sale deed will not
bind the petitioners. During the course of the course of the
argument by both sides, it was stated that O.S.No.52/ 11 is
pending before this court; that O.S.No.608/08 was filed
before the District Munsif Court and that on transfer, the
same is pending as O.S.No.52/ 11. It is accepted by the
respondents that a suit for partition in respect of 3.60
acres, which is one item of the suit property. So it is clear
that the respondents have filed claiming half share in the
undivided 3 acres and 60 cents.


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When PW-1 was cross-examined on the side of the
respondents, questions were asked about O.S.No.326/ 10,
327/10 and 328/10. No details were asked for about
O.S.No.52/ 11. The petitioners by oral and documentary
evidences have proved that they are in possession of the
suit properties. The Senior Advocate on the side of the
respondents has also admitted that when delivery was to
be taken, the petitioners were m possession and that
prevented the effecting of delivery, the petitioners stated
that they will set fire to themselves by pouring kerosene.
On the side of the respondents, no favourable answers
were obtained by addressing detailed questions to PW-1.
On perusal of foe records, it is seen that the petitioners
were added in all foe proceedings only nominally and no
specific prayer is made in the execution petition against
the petitioners. While cross-examining PW 1 on the side of
the respondents, suggestion was made that he is giving
false evidence only to prevent the effecting of delivery and
to drag on the proceedings and the PW-1 has denied the
same. In RW 1’s evidence, it is seen that the High Court
has removed the names of Rajamani and Ethirajulu and as
Rajamani and Ethirajulu are nominally added, it will not
affect their rights. The judgement in O.S.No.514/83 win not
bind the petitioners. In E.P. also, no Bhatta was paid for
sending notice to the petitioners. In E.P.No.237/04 and
E.P.No.214/05, relief is claimed in column 9 only against
Ramanujam and Jagadeesan.

On the side of the respondents, it is proved that the
possession of the suit property is wit.li Ramanujam and
Jagadeesan. It is not stated in their reply that the
possession of the suit property is with Ramanujam and
Jagadeesan. No independent witness was examined to
show that Rajamani and Ethirajulu are not in possession
and that Ramanujam and Jagadeesan are in possession of
the suit property. In both the execution petitions, no prayer
is made against the petitioners for delivery of possession.
The petitioners have proved that they are in possession.

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The respondents have not produced the records relating to
the proceedings in prior litigations. It is not proved that the
possession of the property is with Ramanujam and
Jagadeesan. As the respondents have not asked for any
prayer in the execution petition against the petitioners
herein to prove that the petitioners are in possession, as no
acceptable reason is stated for not making any prayer
against foe petitioners, which affects the case of the
respondents, when the petitioners have proved their
possessory rights over the suit properties and also as the
respondents can take possession only after taking legal
steps/ proceedings and also as the objections raised by the
petitioners are acceptable, this court holds that in the
interest of justice, the petition is to be allowed.”


57. Thus, according to the Executing Court, although the respondent nos. 1 and
2 herein were impleaded as parties in the execution petition filed by the
appellants herein yet no notice was sent to them as there was no prayer made
against them. Secondly, according to the Executing Court the respondent
nos. 1 and 2 have been able to establish that they are in possession of the suit
properties. In such circumstances, the objections raised by the respondent
Nos. 1 and 2 herein under Section 47 of the CPC were upheld.
58. The High Court while affirming the order passed by the Executing Court
proceeded altogether on a different footing. The High Court held as under:
“25. Even after knowing the possession of the respondents
3 and 4 / defendants, in the earlier occasion, after so many
years, the decree holders, purposely did not ask the Court
to send notice to respondents 3 and 4 / defendants. In fact

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the decree has also been passed against the respondents 3
and 4 / defendants, in which the respondents 3 and 4
/defendants, are directed to hand over possession to the
decree holders. Only taking into consideration of the same,
the learned First Additional Subordinate Judge, Salem,
had allowed the REA No. 163 of 2011 vi de order dated
12.08.2011, by holding that since, no notice is served to
respondents 3 and 4/ defendants, the Court cannot pass
any order directing the respondents 3 and 4/ defendants, to
deliver possession and thereby their right of possession, is
no way effected. Therefore, this Court is of the considered
view that the said proposition taken by the court below do
not have any material irregularity.

26. However, it is the duty of the Court below to dismiss
the REP No.237 of 2004, after allowing the application
filed in REA No. 163 of 2011 (47 CPC). But the learned
First Additional Subordinate Judge, Salem, without
following the consequential procedure, allowed the
revision petitioners/decree holders to file applications for
amending the execution petition. Since the right of the
respondents 3 and 4/ defendants are determined in REA
No. 163 of 2011, the question of subsequent amendment in
the same EP (REP No.237 of 2004) in Column No. 10
virtually does not arise on the date. So far as respondents
3 and 4 are concerned, no execution petition was pending.
Under the said circumstances, amendment petitions are
not maintainable. Therefore, this Court is of the firm view
that the amendment applications filed in REA Nos. 14 of
2012 and 145 of 2013, are not maintainable in liminie.

27.The decree holders should have taken steps to amend
the execution petition atleast after seeing the defence set
up by the respondents 3 and 4/defendants in the REA No.
163 of 2011. But they have not taken any steps to amend
the execution petition till the disposal of application filed
under Section 47 CPC. More than that, the decree holder /
revision petitioners, after knowing the result of REA No.

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163 of 2011 in the year 2011, till 2015 they have not
preferred any appeal against the order passed in the
petition filed under Section 47 CPC. The reason for not
filing the appeal or revision, immediately, is not explained
on the side of the revision petitioners/decree holders.
Though the procedure is meant to advance cause of justice,
it is for the litigants to watch the proceedings, then and
there, without any delay, with care and vigil.

28. Therefore, in the light, of the above discussions, this
Court is of the opinion that the impugned order passed in
the petition filed under Section 47 CPC is not having any
material irregularity and thereby, the order dated
12.08.2011 made in REA No.163 of 2011 in REP No.237 of
2004 in OS No.514 of 1983, is sustained and CRP No.4311
of 2011, is dismissed.

29. Further, as already observed, after allowing the
application filed under Section 47 CPC, the Execution
Petition has to be closed. But for the reasons best known,
the execution petition filed by the revision petitioners/
decree holders was kept alive and thereafter, the revision
petitioners/ decree holders took the applications for
amendment. In fact, the same is not maintainable.
Therefore, the orders dated 24.04.2015 made in REA
Nos.14 of 2012 and 145 of 2013 in REP No.237 of 2004 in
OS No.514 of 1983, are also sustained and CRP Nos.2150
& 2151 of 2015, are dismissed. No costs. Consequently, the
connected Miscellaneous Petitions are closed.”

59. It appears that the Courts below proceeded absolutely on a wrong footing.
What the courts below should have considered is the simple fact whether
the obstruction at the end of the respondent nos. 1 and 2 of the execution of
the decree of specific performance and possession of the suit property could

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be said to be bona fide and genuine. In other words, the consideration at the
end of both the courts should have been whether the respondent nos. 1 and
2 herein being nephews of the original venders are acting in collusion with
each other only with a view to frustrate and defeat the decree.
60. We are of the view that the Courts below failed to consider the following:
a. The respondent Nos. 1 and 2 respectively are nephews of the vendors
and claim to have come into possession of the suit property in the year
1983 when the suit was first instituted by the appellants before the ASJ.
They were impleaded in the original suit as the defendant Nos. 3 and 4
respectively.
b. The decree in favour of the appellants granting specific performance
with possession was affirmed by the High Court on 19.03.2004 and the
SLP against the order of the High Court stood dismissed on 20.01.2006.
The respondent Nos. 1 and 2 respectively chose not to contest the
original suit before the ASJ. They did not appear even before the High
Court and this Court in the appeals filed by the vendors (judgment
debtors).
c. The respondent Nos. 1 and 2 were also impleaded in the execution
petition bearing R.E.P. No. 237 of 2004 and the order of the High Court

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dated 21.02.2006 indicates that they had appeared through their
advocate and were aware about the said execution petition.
d. The Executing Court executed the sale deed on 17.08.2007 and ordered
for delivery of possession of the suit property to the appellants. When
such order was sought to be effected by the appellants along with the
Village Administrative Officer, the respondent no. 1 obstructed the
delivery of possession.
e. Thereafter, the respondent Nos. 1 and 2 respectively filed an execution
application R.E.A. No. 163 of 2011 on 12.03.2008 alleging fraud on the
part of the appellants saying that they were not aware about the
execution proceedings. At this stage, the respondent no. 2 brought onto
the record for the first time that he along with the respondent no. 1 were
cultivating the land constituting the suit property.
f. The respondent Nos. 1 and 2 respectively, after seven months i.e. on
18.10.2008 filed a petition before the revenue authorities for inclusion
of their names in the cultivation account of the suit property and prayed
that the same be done retrospectively from the year 1974. Though, the
revenue authorities only allowed for inclusion of their names from 2008
onwards yet they were granted certificate that they were in possession

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of the suit property from 1974 onwards. Such certificate was provided
to them on the basis of the “no objection” given by the vendors
(judgment debtors) as they were considered to be title holders of the
said property. From the facts on record, it can be discerned that the
revenue authorities were not made aware of the sale deed executed in
favour of the appellants herein and that the title of the suit property
stood transferred to them.
61. 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.
62. 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

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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 while
determining a question under Section 47, an executing court cannot go
behind the decree and question the correctness of the same.
63. 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. The relevant portion of the judgment is
reproduced below:
“ 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 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

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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 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

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common questions of law and facts could be decided at
one go. ”
(Emphasis supplied)

64. In the present case, the appellants have pleaded in their plaint that the
respondent Nos. 1 and 2 respectively were impleaded therein as defendants
as they were in possession of the suit property. However, the respondent Nos.
1 and 2 chose not to contest the suit despite being aware of the prayer of the
appellant for delivery of possession of the suit properties. They could have
filed a joint written statement stating that they are cultivating tenants at the
stage of the original suit itself, but rather raised the said issue in the form of
objections at the stage of execution.
65. Furthermore, the respondent Nos. 1 and 2 failed to produce any documentary
evidence as regards their claim of being cultivating tenants, even at the stage
of their Section 47 application. Instead, they filed for registration of their
names in the cultivation account of the suit property only in 2008 and prayed
for retrospective inclusion of their names from 1974. While the Revenue
authorities declined the retrospective inclusion of the respondents’ names as
cultivating tenants from 1974, it allowed for their inclusion in the cultivation
account of the suit property starting from 2008 onwards. The revenue

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authorities also ordered for grant of certificate to the respondent Nos. 1 and
2 certifying that they were in possession of the suit property from 1974 on
the strength of the “no objection” provided by the vendors.
66. The respondent Nos. 1 and 2 are asserting their independent right to remain
in possession of the suit land and consequent protection under the Tamil
Nadu Cultivating Tenants’ Protection Act, 1955, owing to their status of
being cultivating tenants granted in 2008 by the Revenue authorities.
67. It is worthwhile to revisit the facts that the High Court and this Court had
affirmed the decree of specific performance with possession in favour of the
appellants in the year 2004 and 2006 respectively. Subsequently, the sale
deed was executed by the Executing Court on 17.08.2007 thereby
transferring title of the suit property to the appellants. Despite such
confirmation of the decree and transfer of title in favour of the appellants, it
is incomprehensible why a notice was sent to the vendors by the revenue
authorities in 2008. Further, the vendors gave “no objection” to the grant of
certificate of possession to the respondent Nos. 1 and 2 from 1974 despite
not having any authority to do so in light of the sale deed dated 17.08.2007.

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68. In our considered view, the aforesaid by no stretch of imagination can be
construed to be a legal right of possession existing independently from the
title of the vendors which has now stood transferred to the appellants. It is
nothing but a case of apparent collusion between the vendors and the
respondent Nos. 1 and 2 to deprive the appellants from availing the fruits of
the decree in their favour.
69. Even otherwise, the respondent Nos. 1 and 2 cannot claim protection of the
special legislation of 1955 for the period during which they were not
registered as tenants cultivating the suit properties. In our view, the
certificate that they are in possession of the suit properties since 1974 does
not come to their aid. We say so, because the said certificate does not
establish any independent right of possession in favour of the respondent
Nos. 1 and 2. Further, the certificate itself appears to have been obtained in
collusion with the vendors who at the time of giving “no objection” had
ceased to be the owners of the suit property.
70. In such circumstances referred to above, we find it extremely difficult to
accept that the respondent Nos. 1 and 2 are bona fide cultivating tenants of
the suit property and thus, the determination of the question of them being in
possession of the same must necessarily go against them and in favour of the

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appellants. Therefore, there is no question of deciding the validity of the
decree on the ground of being a nullity due to lack of jurisdiction of the civil
court to evict cultivating tenants.
71. In such circumstances referred to above, we have reached the conclusion that
the High Court committed an egregious error in passing the impugned order.
We must now ensure that the appellants are able to reap the fruits of the
decree. We are also of the view that the rejection by the High Court of the
amendments to the execution petition filed by the appellants, was erroneous
and deserves to be set aside.
72. Before we close this matter, we firmly believe that we should say something
as regards the long and inordinate delay at the end of the Executing Courts
across the country in deciding execution petitions.
73. It is worthwhile to revisit the observations in Rahul S. Shah (supra) wherein
this Court has provided guidelines and directions for conduct of execution
proceedings. The relevant portion of the said judgment is reproduced below:

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(Emphasis supplied)

74. The mandatory direction contained in Para 42.12 of Rahul S. Shah (supra)
requiring the execution proceedings to be completed within six months from
the date of filing, has been reiterated by this Court in its order in Bhoj Raj
Garg v. Goyal Education and Welfare Society & Ors. , Special Leave
Petition (C) Nos. 19654 of 2022.
75. In view of the aforesaid, we direct all the High Courts across the country to
call for the necessary information from their respective district judiciary as
regards pendency of the execution petitions. Once the data is collected by

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each of the High Courts, the High Courts shall thereafter proceed to issue an
administrative order or circular, directing their respective district judiciary to
ensure that the execution petitions pending in various courts shall be decided
and disposed of within a period of six months without fail otherwise the
concerned presiding officer would be answerable to the High Court on its
administrative side. Once the entire data along with the figures of pendency
and disposal thereafter, is collected by all the High Courts, the same shall be
forwarded to the Registry of this Court with individual reports.
76. Registry is directed to forward one copy each of this judgment to all the High
Courts at the earliest.
77. The Registry shall notify this matter once again after seven months only for
the purpose of reporting compliance of the directions issued by us referred
to above.
F. CONCLUSION
78. In the result, the appeals succeed and are hereby allowed. The impugned
judgment passed by the High Court is hereby set aside. The order passed by
the Executing Court is also hereby set aside.

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79. The Executing Court shall now proceed to ensure that vacant and peaceful
possession of the suit property is handed over to the appellants in their
capacity as decree holders and if necessary, with the aid of police. This
exercise shall be completed within a period of two months from today
without fail.
80. Pending applications, if any, shall stand disposed of.

………………………………J.
(J. B. PARDIWALA)



………………………………J.
(PANKAJ MITHAL)
New Delhi.
th
6 March 2025.

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