Gool Rusi Vatcha Thoru. Poa Viraf Rusi Vatcha vs Naziya Wasim Shaikh And Ors

2026:BHC-AS:19084
Neeta Sawant WP 3565 of 2026

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3565 OF 2026
Gool Rusi Vatcha through
Viraf Rusi Vatcha ….PETITIONER
VERSUS.
Naziya Wasim Shaikh & Ors. ….RESPONDENTS
___________
Mr. Nirman Sharma with Mr. Deeshank Doshi and Ms. Uma Sharma i/b.
Dharam & Co., for the Petitioner
Mr. M.A. Vaid with Ms. Vidhya N. Shet i/b. Vaid & Associates for
Respondent No.1.
CORAM: SANDEEP V. MARNE, J
JUDG. RESD. ON: 07 APRIL 2026.
JUDG. PRON. ON: 22 APRIL 2026.
JUDGMENT:
1) The extent of inquiry to be conducted by the Executing Court
under Order 21 Rule 101 of the Code of Civil Procedure, 1908 (Code) when
objection of the obstructor is found to be ex facie baseless is the issue
involved in the Petition. Whether it is necessary to conduct a full-fledged
inquiry like a trial in the suit in every obstruction application filed under
Order 21 Rule 97 or Rule 99 on account of use of the words ‘all questions’
coupled with impermissibility to file a fresh suit under Rule 101 of Order
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21 or whether in a given case, it is permissible to conduct a summary

inquiry for rejection of baseless obstruction claim?

2) The issue arises in the light of challenge raised by the
Petitioner-decree holder to the judgment and order dated 27 November
2025 passed by the Appellate Bench of the Small Causes Court allowing
Execution Appeal No. 95 of 2023 and setting aside Trial Court’s judgment
and order dated 6 May 2023 passed in Obstructionist Notice No.43 of 2023.
The Appellate Court has remanded the proceedings to the Trial Court for
fresh decision by providing due opportunity to both the parties to lead
evidence and for deciding the Obstructionist Notice afresh.
3) Petitioner is the owner and landlady of the building known as
Jamset Building situated at C.T.S. No.19, Jacob Circle, Mahalaxmi,
Mumbai-400 011. Room No.15 situated on third floor of Jamset Building
are the ‘suit premises’. It is the case of the Petitioner-Plaintiff that the suit
premises were originally let out to Defendant No.1-Yusufali Danawalla for
residential use. According to the Plaintiff, Defendant No.1 unlawfully
sublet and parted with possession of the suit premises in favour of Mr.
Kalam Khan (Defendant No.2). Plaintiff accordingly instituted R.A.E. Suit
No.262/449 of 2009 against both the Defendants for recovery of possession
of the suit premises on the ground of unlawful subletting, acquisition of
alternate premises, bona fide requirement and unauthorized additions and
alterations. Defendant No.1-tenant failed to appear and contest the suit.
Defendant No.2 resisted the suit by filing written statement and claimed
inter alia that he was residing with the original tenant for several years in
capacity as distant relative. That Defendant No.2 had paid amount of Rs.2
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Neeta Sawant WP 3565 of 2026
lakhs to the Constituted Attorney of the Plaintiff for transfer of the rent

receipts. The Trial Court proceeded to decree the Suit by judgment and
order dated 27 September 2011 by upholding the grounds of unlawful
subletting and bona fide need. Both the Defendants were directed to
handover possession of the suit premises to the Plaintiff.
4) Petitioner-Plaintiff filed Execution Application No. 528 of
2022. Defendant No.2 appeared before the Executing Court and filed
undertaking dated 3 January 2023 accepting the decree. He undertook to
pay to the Petitioner an amount of Rs. 46 lakhs towards rent and other
dues. He specifically undertook that in case of default he would not
challenge execution of decree and would not induct any third parties.
Defendant No.2 however did not act in terms of the undertaking and failed
to make payment to the Petitioner. He also stopped attending before the
Executing Court. When Plaintiff was about to secure possession of suit
premises from Defendant No.2, Ms. Naziya Wasim Shaikh (Respondent
No.1/Obstructionist) suddenly appeared on the scene and filed
Obstructionist Notice No. 43 of 2023 objecting to the execution of the
decree. She claimed herself to be the niece of Defendant No.2 and claimed
that the Constituted Attorney of the Plaintiff had demanded amount of
Rs.10 lakhs from Defendant No.2 for transferring the rent receipt in his
name. However, since Defendant No.2 showed inability to pay the said
amount, the Constituted Attorney enquired with Naziya whether she is
willing to have the rent receipt transferred in her name. She claimed that
she started paying installments of Rs.10,000/- per month and cleared the
entire amount of Rs.10 lakhs during January 2012 to January 2022. She
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Neeta Sawant WP 3565 of 2026
further claimed that Constituted Attorney of the Plaintiff, instead of

transferring the rent receipt, demanded further amount of Rs.50 lakhs
from her. She claimed that Plaintiff No.1 and Defendant No.2 were in
collusion with each other in securing the decree. She accordingly opposed
execution of the decree and in fact prayed for setting aside the same in
Obstructionist Notice No.43 of 2023.
5) By order dated 18 February 2023, the Trial Court stayed the
eviction decree during pendency of Obstructionist Notice. The Trial Court
dismissed Obstructionist Notice No.43 of 2023 filed by Naziya by imposing
costs of Rs.5,000/- on her vide judgment and order dated 6 May 2023.
Naziya first filed Revision Application No. 143 of 2023 challenging Trial
Court’s order dated 6 May 2023. The Revision Application was dismissed
as not maintainable by order dated 13 June 2023. Naziya thereafter filed
Execution Appeal No.95 of 2023 challenging Trial Court’s order dated 6
May 2023. Since the Appellate Court refused to condone delay of 7 days in
filing the Appeal, Naziya filed Writ Petition No. 8336 of 2023 before this
Court, which was allowed by order dated 7 July 2023 and the delay was
condoned. The Appellate Court thereafter passed order dated 24
November 2023, directing Naziya to deposit interim compensation at the
rate of Rs.18,000/- per month from the date of the order of the Trial Court.
6) According to the Petitioner, Naziya defaulted in payment of
interim compensation and the Petitioner moved for issuance of warrant
for possession. Defendant No.2 filed application dated 27 March 2024
seeking stay in the execution proceedings on the ground that he was
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residing with Naziya in the suit premises as a relative. On 27 July 2024,

Defendant No.1 filed application for setting aside the ex parte decree.
7) Execution Appeal No.95 of 2023 was heard by the Appellate
Court and has been allowed by judgment and order dated 27 November
2025. The Appellate Court has set aside the Trial Court’s order and has
remanded Obstructionist Notice No.43 of 2023 for fresh decision on merits
after providing due opportunity to both the parties to lead evidence.
Aggrieved by the Appellate Court’s order dated 27 November 2025, the
Petitioner has filed the present Petition.
8) Mr. Sharma, the learned counsel appearing for the Petitioner
submits that the Appellate Court has grossly erred in allowing the Appeal
and in remanding the Obstructionist Notice for fresh decision. He submits
that in every case, it is not necessary to hold an in depth enquiry while
deciding application under Order 21 Rule 97 of the Code of Civil
Procedure, 1908 (Code). That in a given case where the obstruction is
found to be prima facie baseless, the Execution Court can conduct
summary inquiry into alleged independent claim of the obstructionist. He
relies on judgment of this Court in Indubai D. Kothawale and Ors. vs.
1
Laxman Balwant Chougule and Ors. in support of his contention that
conduct of detailed inquiry by the Executing Court is not necessary. He
submits that if Executing Court arrives at the conclusion that the
Obstructionist has no semblance of rights to present obstruction, the
Court can summarily reject the application. That reliance by the Appellate
Court on judgment of the Apex Court in Brahmdeo Choudhary vs.
1 Civil Revision Application No. 636 of 2023 decided on 21 December 2023
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2
Rishikesh Jaiswal is inapposite as the Supreme Court has nowhere held

that summary approach is impermissible while deciding obstructionist
proceedings.
9) Mr. Sharma submits that the very claim of Naziya is
mischievous. That she resides with Defendant No.2 and therefore, since
eviction decree is passed against Defendant No.2, she must vacate
possession of the premises. He relies on bailiff’s report, as well as
photographs in support of his claim that Defendant No.2 was found in
possession of suit premises as on 21 March 2024 belying Naziya’s claim of
collusion between Plaintiff and Defendant No.2. That in the present case,
the Trial Court had rightly observed that Naziya has derivative rights
through Defendant No.2 and that she does not have independent right to
occupy the premises. He relies on copy of covering letter dated 14 March
2026 by which the present Petition was served on Naziya, who has
accepted the same, both for herself as well as for Defendant No.2. He relies
on photographs at page- 129 of the Petition in support of his contention
that Defendant No.2 and Naziya were seen together in the Court premises.
He submits that this is a classic case where valid decree passed by the
Small Causes Court is attempted to be frustrated by raising an objection by
relative of Defendant No.2 residing with him. He relies on order passed by
Division Bench in Writ Petition No. 13205 of 2025 in which costs are
imposed on Defendant No.2 for suppressing passing of eviction decree
against him. He submits that Naziya’s name is in the Ration Card of
Defendant No.2. He submits that the case of Naziya of payment of Rs.10
lakhs to Constituted Attorney of Plaintiff is false to her knowledge. That
2 AIR 1997 SC 856
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Defendant No.2 offered to pay Rs.46 lakhs to the Plaintiff vide undertaking

dated 3 January 2023 which belies Naziya’s claim of having paid Rs.10
lakhs to the Plaintiff or to her constituted attorney. Mr. Sharma
accordingly prays for setting aside the order passed by the Appellate
Court.
10) Mr. Vaid, the learned counsel appearing for Respondent
No.1-Naziya opposes the Petition. He submits that no interference is
warranted in the impugned order since the order merely directs decision of
claim of Naziya by providing her an opportunity to lead evidence. That
the recording of evidence can be completed in a time-bound manner and
Trial Court can be requested to return findings on the evidence so
recorded. That therefore there is no need to set aside the order passed by
the Appellate Court which does not cause prejudice to the Petitioner. That
the Trial Court has grossly erred in dismissing the Obstructionist Notice
without even giving an opportunity to Naziya to lead evidence. That her
case is specifically based on claim of having paid amount of Rs.10 lakhs to
the Plaintiff and that she must be given an opportunity to prove the same.
11) Mr. Vaid further submits that the execution proceedings
were filed after gross delay of 10 long years. So far as no prejudice would
be caused if the execution is delayed by few more months by grant of
opportunity to Naziya to lead evidence. He submits that this Court has
already observed in order dated 7 July 2023 that the claim of Naziya needs
to be adjudicated. He also relies on order passed by the Trial Court on 22
February 2022 in support of his contention that Defendant No.2 was not in
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possession of the suit premises as per the bailiff’s report. He relies on

affidavits of two witnesses filed in the Obstructionist Notice and submits
that Naziya must be permitted to lead evidence of those witnesses. He
submits that Naziya is not an educated lady and may have accepted notice
on behalf of Kalam Khan which does not mean that Kalam Khan occupies
the suit premises. He accordingly prays for dismissal of the Petition.
12) Rival contentions urged on behalf of the parties now fall for
my consideration.
13) Petitioner-Plaintiff has secured eviction decree against the
original tenant (Defendant No.1) as well as against the subletee
(Defendant No.2) on 27 September 2011 in R.A.E. Suit No. 262/449 of 2009.
When decree was put to execution in the year 2022, Defendant No.2 came
forward and showed willingness to acquire tenancy rights in respect of the
suit premises by filing Undertaking dated 3 January 2023. He undertook to
pay amount of Rs.40,00,000/- towards lumpsum amount and Rs. 1,00,000/-
towards arrears of rent. He also agreed to pay further amount of
Rs.5,00,000/- towards advocate fees. This is how Defendant No.2
undertook to pay the amount of Rs.46,00,000/- to the Plaintiff for the
purpose of recognition of his tenancy rights in the suit premises. In paras-
7 and 9 of the Undertaking, Defendant No.2 agreed as under :
7. I say that if I fail to make the payment to the Plaintiff in terms of paragraph-6
above, I will voluntarily handover vacant and peaceful possession of the suit
premises from me. I also undertake that I shall not seek any extension of time from
this Hon’ble Court or any other Court for the payment mentioned above.
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st
9. In undertake that on and after the execution of this undertaking till 31 January,
2023 I shall not induct any third party or shall not part with possession of the suit
premises in any manner whatsoever or damage the suit premises in any way.

14) Thus, as on 3 January 2023, Defendant No.2-Kamal Khan
claimed possession in respect of the suit premises and undertook not to
induct any other person therein.
15) After Defendant No.2 failed to make payment as agreed in
the Undertaking dated 3 January 2023, and the decree became executable,
Naziya has appeared on the scene 27 days later on 30 January 2023 to file
Obstructionist Notice No.43 of 2023. She claimed that after she got
married in 2007, she started residing separately with her husband but
returned to the suit premises in 2010 after being separated from her
husband. In paras-3(A) to 3(D) of her Application, Naziya has raised
following claims :
3
A. Even after taking monies from Defendant No.2 by C.A. of the Plainitff, false
and frivolous suit came to be filed by the Plaintiff. It is after passing of exparte
decree in RAE Suit No. 449 of 2009 there was a joint meeting held between
myself, Defendant No.2 and C.A. of Plaintiff wherein the C.A. of Plaintiff
demanded for Rs. 10,00,000/- for transferring the rent receipt in the name of
Defendant No.2. However Defendant No.2 showed inability to pay the siad
amount and asked me if I was interested to purchase the suit premises in my
name. As I was residing in the suit premises alongwith my child and I had no
other shelter, I agreed to pay this consideration to the CA of the Plaintiff however
in installments of Rs. 10,000/- every month as arranging such an huge amount
was not possible for me readily. The CA of the Plaintiff agreed to the said
proposal.
B. It is since January, 2012 that CA of the Plaintiff started collecting Rs.10,000/-
every month from me in cash. Here is the schedule of the payment made to the Ca
of the Plaintiff:
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C. As the entire country was under lockdown and I was under financial hardships
I could not complete the payment after March, 2020 and hence last payment was
made in the month of January, 2022. However after collecting the entire payment
the CA of the Plaintiff initially started dilly delaying for issuance of rent receipt.
Thereafter when CA of the Plaintiff he started giving excuses that he would issue
rent receipt in her name after end of financial year 2022.
D. Accordingly I approached the CA of the Plaintiff in the month of April, 2022
and I was shocked to hear from him that now he wanted Rs. 50,00,000/- from me
for transfer of rent receipt as according to him it was not feasible for him now to
issue tenancy in my favour for Rs. 10,00,000/-. I pleaded and requested the CA of
the Plaintiff to no blackmail however the CA of the Plaintiff threatened me that if
I did not vacate the suit premises he would get a court order to throw me and my
child out from suit premises.
16) Naziya claimed collusion between Plaintiff and Defendant
No.2 and pleaded in paras-5(B) as under :
(B) The conduct of the Defendant No.2 clearly shows collusion with the Plaintiff
wherein after giving up possession of the suit premises he appears before
executing court and gives an undertaking without any information or knowledge
to me.
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Neeta Sawant WP 3565 of 2026
17) Naziya suppressed the fact that she is the niece of Defendant

No.2 in the Obstructionist Notice. She however admitted residence with
Defendant No.2 since the year 2002. Though she claimed separate
residence between 2007 to 2010 and raised her claim of continuous
residence after 2010 with her son, she did not plead as to how Defendant
No.2 vacated possession of the suit premises and how she became
exclusive possessor thereof.
18) While claiming collusion between Plaintiff and Defendant
No.2, Naziya has raised the plea of Defendant No.2 giving up possession of
the suit premises. The collusion is essentially alleged to explain the act of
Defendant No.2 in filing Undertaking dated 3 January 2023. Be that as it
may. It is Naziya’s case that Defendant No.2 has given up possession of
the suit premises and she is in exclusive possession thereof. This theory of
Naziya appears to be false to the core, which is clear from the following :
(i) After Naziya failed to deposit interim compensation fixed by the
Appellate Court vide order dated 24 November 2023, Petitioner
took out application for issuance of possession warrant. When the
bailiff approached the suit premises to serve the warrant on 21
March 2024, he met Defendant No.2 and served the warrant on
Defendant No 2. At that time, it appears that only Defendant No.2
was found at the suit premises. Defendant No.2 informed the bailiff
that he alone was residing in the suit premises and Defendant No.1
had left possession long back. Petitioner has produced bailiff’s
report dated 21 March 2024 together photograph showing
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Defendant No.2 accepting service of warrant from the bailiff. The

photograph does not depict causal presence of Defendant No. 2 in
the suit premises, but his residence therein. Thus, Defendant No.2
is found residing in the suit premises on 21 March 2024, thereby
belying Naziya’s claim of he acting in collusion with the Plaintiff as
well as the claim of exclusive possession after Defendant No. 2 gave
up the possession.
(ii) Defendant No.2 filed Writ Petition No. 13205 of 2025 claiming
certain rights in respect of the terrace and for carrying out repair
works of the building through MHADA. Defendant No.2 was
Petitioner No.5 in WP-13205 of 2025. The fact that Defendant No. 2
filed a petition in the year 2025 clearly shows his interest in the suit
premises and not that of Naziya’s. While filing the said petition,
Defendant No.2 suppressed the factum of passing of eviction decree
against him, as well as furnishing of Undertaking by him about loss
of rights in respect of the suit premises. The Division Bench of this
Court passed following order on 28 January 2026 :
5. Thus, the aforesaid order passed by this Court is very clear that it was
ultimately for the MHADA to take appropriate steps. Therefore, a second
petition for the same reliefs could not have been filed and cannot be
held to be maintainable. Apart from this, the suppression which we have
noted pertains to an eviction decree passed by the Small Causes Court at
Bombay, which the petitioner is suffering which has not been disclosed
in this petition. We also find that the petitioner has also furnished an
undertaking before the Appellate Court that he would not obstruct
execution of the decree meaning thereby that he has lost all rights in
respect of the said tenements in question. These material facts have
been suppressed in the memo of the petition.
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Thus, as on 28 January 2026 also, Defendant No.2 is found to be

residing in the suit premises. The Petition is dismissed by this
Court by imposition of costs due to suppression by Defendant No.
2.
(iii) When the present Writ Petition was sought to be served on the
Respondents, the notice is accepted by Naziya in the suit premises
on 16 March 2026 not only for herself but also for Defendant No.2-
Kalam Khan.
(iv) After being caught on 21 March 2024 by the bailiff, Defendant
No.2 made attempt to salvage the situation by filing application at
Exh.33 in Execution Application No. 528 of 2022 seeking stay of
proceedings. In that application, Defendant No.2 referred to
Obstructionist Notice taken out by Naziya and stay order passed on
18 March 2024. In his application, Defendant No.2 pleaded as
under:
“The Defendant No.2 resides with the Obstructionist in the
aforementioned matter and is her family member”
Thus, there is a specific admission by Defendant No.2 on 27 March
2024 of residence in the suit premises with Naziya.
(iv) Defendant No.2 has made one more attempt to frustrate
execution of decree by filing application before the Trial Court on
23 July 2024 claiming that he was never served with the suit
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summons. Apart from the fact that claim of Defendant No.2 of not

being served with the suit summons being false, as he filed Written
Statement in the suit and also filed undertaking before the
Executing Court accepting the decree, filing of such application
shows interest of Defendant No.2 in the suit premises as on 23 July
2024 belying Naziya’s claim of Defendant No.2 acting in collusion
with Plaintiff and Defendant No.2 relinquishing possession of the
suit premises.
19) In the light of the above position, the question that arises for
consideration is whether it is incumbent for the Executing Court to
conduct an in depth enquiry into the obstruction claim of Naziya. No
doubt, once application under Order 21 Rule 97 of the Code is filed, inquiry
into ‘all questions’ arising between the parties to a proceeding on that
application and relating to the adjudication of the application, needs to be
determined by the Court under Rule 101. The objective behind Order 21
Rule 101 of the Code is to ensure that all questions relating to right of
obstructionist qua decree holder must be determined in application filed
under Rule 97 and parties cannot be relegated to a remedy of filing a fresh
suit. Rule 101 of Order 21 is aimed at preventing multiplicity of
proceedings. To illustrate, if obstructionists claims title in respect of the
suit property, the Executing Court cannot expect him to secure declaration
of title through separate suit. The issue of title between obstructionist and
decree holder needs to be decided in enquiry under Rule 101. Similarly, if
obstructionist claims possessory right, that right also needs to be
adjudicated in the Rule 101 inquiry instead of expecting parties to file a
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separate suit. Rule 101 however cannot be read to mean that it is

mandatory to decide all questions by conducting a full-fledged inquiry in
every case. In a given case, where Executing Court is satisfied that the
obstructionist has no semblance of right, it need not conduct full-fledged
3
trial in such a case. In Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Anr.
the Apex Court has held in paras-12 and 14 of the judgment as under:
12. The words "all questions arising between the parties to a proceeding on
an application under Rule 97" would envelop only such questions as would
legally arise for determination between those parties. In other words, the court is
not obliged to determine a question merely because the resistor raised it. The
questions which executing court is obliged to determine under Rule 101, must
possess two adjuncts. First is that such questions should have legally arisen
between the parties, and the second is, such questions must be relevant for
consideration and determination between the parties, e.g. if the obstructor
admits that he is a transferee pendente lite it is not necessary to determine a
question raised by him that he was unaware of the litigation when he purchased
the property. Similarly, a third party, who questions the validity of a transfer
made by a decree- holder to an assignee, cannot claim that the question
regarding its validity should be decided during execution proceedings. Hence, it
is necessary that the questions raised by the resistor or the obstructor must
legally arise between him and the decree-holder. In the adjudication process
envisaged in Order 21 Rule 97(2) of the Code, execution court can decide
whether the question raised by a resistor or obstructor legally arises between the
parties. An answer to the said question also would be the result of the
adjudication contemplated in the sub-section.
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 added)
3 (1998) 3 SCC 723
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20) Following the judgment of the Apex Court in Silverline

Forum (supra) and after taking into consideration the ratio of the
judgment in Brahmdeo Chaudhary (supra), this Court held in Indubai D.
Kothawale (supra) in para-16 of the judgment as under:
16. Thus every baseless application made by a third party to present obstruction
need not be taken to a detailed enquiry by the executing Court. The executing
Court is competent to make a summary enquiry as to whether the question
raised by the Obstructor legally arises between the parties or not. If the
executing Court arrives at a conclusion that an Obstructor has no semblance of
right to present obstruction, it can summarily reject the application. In the
present case, there is specific admission on the part of the Revision Applicants
that the Judgment Debtor (Respondent No.2) is in possession of the suit
property. Additionally, no material was presented before the executing court to
demonstrate actual or constructive possession of the suit property by them.
Therefore, no error can be traced in the order passed by the executing court in
rejecting the application filed by the Revision Applicants.
(emphasis and underlining added)
21) Thus, it is not mandatory for the Executing Court to conduct
a full-fledged trial every time a baseless objection is presented under
Order 21 Rule 97 of the Code. It is permissible for the Executing Court to
make adjudication based on admitted facts or even based on averments
made by the Obstructor. Rule 101 of Order 21 cannot be misread to mean
that an avenue is created for persons presenting baseless objections to
execution of decree to have their objection determined like a full-fledged
Suit thereby indefinitely delaying execution of the decree.

22) The Appellate Court has grossly erred on relying on judgment
of the Apex Court in Brahmdeo Choudhary and of this Court in Gaurihar
4
Batane and Ors. vs. Ashok Gajare and Anr . What is held by the Apex
4 2000 SCC Online Bom 220
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Court in Brahmdeo Choudhary (supra) is that once obstruction is

presented by a person claiming independent right in the property, the
Executing Court cannot brush aside or bypass such obstruction and insist
on re-issuance of warrant for possession. The Apex Court held that inquiry
under Rule 101 and 105 of Order 21 becomes necessary only after it is held
that application under Order 21 Rule 97 was maintainable. This follows
that in a case where the objection under Order 21 Rule 97 is found to be
grossly baseless, it is the duty of the Executing Court to reject the same at
the threshold by conducting a summary inquiry as held by the Apex Court
in Silverline Forum and by this Court in Indubai D. Kothawale .
23) Keeping in mind the above settled principles, I proceed to
examine whether a summary inquiry was sufficient for deciding Naziya’s
obstruction. The Trial Court has recorded following findings while
rejecting Naziya’s Obstructionist Notice:
13. In catena of Judgments, Hon'ble Apex Court has held that, if prima facie it is
seen that, the obstructionist has no independent rights, title and interest, then
there is no need of framing issues and to go for trial and the application can be
decided at the time of first hearing. In such circumstances, it is necessary to see
whether applicant has shown that she has independent rights in suit premises. It
is the applicant's own contention that before marriage, she was in occupation and
possession of suit premises along with defendant No.2 since 2002 and after
marriage, she is residing in suit premises since 2010. The further contention of
applicant shows that the applicant was having knowledge about the suit as she
has mentioned that, “Even after taking money from defendant No.2 by C.A. of
plaintiff, false and frivolous suit came to be filed by the plaintiff”. The applicant
has not clarified as to why she did not intervene the suit if she was having
independent rights in suit premises.
14. The applicant has mentioned that she has paid amount of Rs.10 Lakhs to the
plaintiff for transfer of tenancy rights in her name. The applicant has made
contrary statements. In one place she is saying that, she is lawful occupant and
tenant in respect of suit premises and at other place, she is saying that she has
paid Rs.10 Lakhs to the plaintiff for transfer of tenancy rights in her name. She
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has filed affidavits of Salma Khatur Attar Khan and Ayesha Iqbal Shaikh to show
that she has paid an amount of Rs. 10 Lakhs to C.A. of plaintiff. These affidavits
are not sufficient to show that the applicant was having funds and she has paid
the amount to the plaintiff. She has not filed on record any other documentary
evidence like bank statements etc. to prove the same. She has filed her marriage
certificate, Aadhar Card and School ICard of her son to show that she is residing
in suit premises. Mere residence in suit premises is not sufficient to prove
independent rights in it and applicant has to show that, she is not claiming
through defendant No.2 and she has independent rights in suit premises.

15. It is not disputed to the applicant that her name is appeared in the ration
card of defendant No.2. It is not the contention of applicant that she is claiming
through defendant No.1. On perusal of Judgment and decree in RAE Suit No.449
of 2009, it is seen that this Court has held that, “the defendant No.2 was unlawful
sublettee and occupant in suit premises”. When defendant No.2 himself was not
having any rights, title and interest in suit premises, then how applicant will get
any rights in the suit premises. It is not her contention that the plaintiff had
executed any agreement with her at any point of time. The said Judgment also
shows that, defendant No.2 had contended in written statement that he had paid
amount of Rs.2 Lakhs to the C.A. of plaintiff but he did not transfer rent receipt in
the name of defendant No.2. It is seen that defendant No.2 and applicant are in
habit to make statements about payment of amount to C.A. of plaintiff without
any proof.
16. So also, the defendant No.2 had given undertaking in execution application
No.528 of 2022 and has undertaken that on and after the execution of that
undertaking till 31/01/2023, he shall not induct any third party or shall not part
with possession of the suit premises in any manner whatsoever or damage the
suit premises in any way. It means till 31/01/2023, defendant No.2 himself was in
possession of suit premises though it may be with applicant. In such
circumstances, the applicant has not clarified how she got independent rights in
the suit premises.
17. The applicant has stated that the plaintiff and defendant No.2 are in
collusion with each other. This statement is also made contradictory by the
applicant. The applicant herself has stated in the application that she approached
defendant No.2 to have the word with C.A. of plaintiff to which he assured her
that he would resolve the issue and convince plaintiff to issue rent receipt in her
name. So also, it is applicant's own contention that, the defendant No.2 shown his
inability to pay Rs.10 Lakhs for transfer of rent receipt in his name and he asked
applicant whether she is interested to purchase suit premises in her name. In such
circumstances, the applicant has to prove how and in what manner, plaintiff and
defendant No.2 are in collusion with each other which is not proved by her. There
is no evidence about alleged collusion except bare words of the applicant.
Moreover, as soon as defendant No.2 failed to comply his undertaking, plaintiff
applied for issuance of warrant of possession. It is also pertinent to note that, if
applicant is paying amount to the C.A. of plaintiff since 2012 and according to
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her, last payment was made in the year 2022 and it was with consultation of
defendant No.2, then how defendant No.2 himself has given undertaking that, he
will pay lumpsum amount of Rs.40 Lakhs and Rs.10 Lakhs towards arrears of rent
on or before 30/01/2023.

18. The ration card filed on record, the undertaking given by defendant No.2 in
execution application and applicant’s own contention that she was/is residing
with defendant no.2 in suit premises when suit was filed show that the applicant
is claiming through defendant No.2. The applicant has not clarified when
defendant no.2 has relinquished his so called rights in suit premises and in whose
favour. She has not clarified where defendant no.2 is residing when she again
came in suit premises since 2010. She purposely not mentioned in the application
that defendant no.2 is residing in suit premises as on today also and only
mentioned that she is residing in suit premises along with her son, even though
the address of defendant no.2 mentioned in title clause of obstructionist notice is
of suit premises. It shows that applicant herself has not come before the Court the
clean hands. Such malafide litigants shall be thrown out of the Court and they are
not entitled for any relief from the Court. Admittedly, rent receipt is yet not
transferred in the name of defendant No.2 or the applicant. As discussed earlier,
the defendant No.2 himself has no right, title and interest in suit premises being
unlawful occupant, the applicant who is claiming through defendant No.2 also
has no independent right, title and interest in the suit premises. Therefore, there
is no need to proceed for the trial and to determine whether applicant has
independent right, title and interest in the suit premises and that will be futile
exercise.
24) I am in full agreement with the above findings recorded by
the Trial Court. From the material produced by Naziya, one can draw a
presumption that she resides in the suit property with her child. However,
the residence is with Defendant No.2 and not independent of Defendant
No.2. Here the pleaded case of Defendant No.2 relinquishing possession of
the suit premises and she possessing the same exclusively, is found to be
grossly false. Defendant No.2 is repeatedly found in the suit premises. He
himself appeared before the Executing Court and gave Undertaking in
January 2023 claiming exclusive possession and undertook not to induct a
third party in the suit premises. Even Naziya has admitted that she used to
reside with Defendant No.2 in the suit premises. Considering the above
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position, the conclusions reached by the Trial Court about absence of any

independent right in favour of Naziya to claim possession of the suit
premises cannot be found fault with.
25) The Appellate Court has egregiously erred in reversing well-
reasoned order passed by the Trial Court. As against detailed reasons
recorded by the Trial Court, the Appellate Court has passed a terse order,
which though runs into 18 pages, contains reasons in barely two pages,
most of which are grossly perverse. The findings recorded by the Appellate
Court are as under:
37. On considering the rival stands, it does appear that the obstructionist initially
entered the premises through defendant no. 2. Prima facie, therefore, her
occupation may seem derivative. However, she does not base her claim on such
derivative possession. Instead, she asserts an independent claim on the basis of
having paid Rs. 10 lakh to the C.A. of the plaintiff towards transfer of rent receipts.
Her asserted claim is thus independent not merely founded on residence with
defendant no. 2. The plaintiff and the Trial Court have emphasized the absence of
documentary proof of payment.
38. Yet, where a detailed assertion of payment is made specific amount, specific
period, specific mode a reasonable opportunity must be afforded to the
obstructionist to prove such facts. This requirement becomes even more compelling
when viewed in the light of the plaintiff’s own conduct. Though the eviction decree
was passed on 27.09.2011, the execution application was filed only on 28.07.2022
almost eleven years later.
39. True, mere delay within the permissible limitation period cannot, by itself,
lend support to the obstructionist’s version. Nonetheless, the timing is relevant
when considered alongside her allegation that the disputed payments were made
precisely between the decree and the initiation of execution.
40. Therefore, the veracity of these alleged payments must be examined through
proper evidentiary process. A summary rejection, without affording an opportunity
to prove such facts, was not a legally sound approach.
41. The obstructionist had also relied on affidavits of two individuals in support of
her claim. The Learned Trial Court failed to consider these materials. The Trial
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Court and the plaintiff have largely focused on the fact that defendant no. 2 had
given an undertaking to hand over possession by 31.01.2023, using this to imply
that defendant no. 2 alone was in possession.

42. However, the Trial Court simultaneously acknowledged certain documents
(such as the AADHAAR card, school ID card of the child, marriage certificate) which
indicated the obstructionist’s residence in the premises. It then dismissed residence
as insufficient to establish an independent right, yet also concluded that defendant
no. 2 alone was in possession. These inconsistent findings highlight the need for a
proper inquiry and indicate that the Trial Court ought to have examined the
obstructionist’s evidence fully.
43. Indeed, mere residence is not enough to prove independent right. However, the
obstructionist’s case is not based on residence but on alleged payment of Rs. 10
lakh pursuant to a demand for transfer of rent receipts. Such a claim cannot be
dismissed summarily; it must be tested through the procedure mandated under
Rules 101 to 105.
44. Thus, her claim is not derivative through defendant no. 2 but independent,
founded on alleged monetary consideration. This cannot be adjudicated without
evidence. The Learned Trial Court erred in rejecting the claim summarily and in
relying solely on previous residence and defendant no. 2’s undertaking.
26) The Appellate Court thus recorded a prima facie finding of
claim of possession of Naziya being derivative. However, because she has
taken the defence of payment of Rs. 10 Lakh for acquiring the tenancy
rights in the premises, the Appellate Court has held that an opportunity
needs to be granted to her to prove the said assertion. The Appellate Court
has thus dealt with the Appeal in a mechanical manner. It has failed to
notice the apparent collusion between Naziya and Defendant No. 2. There
is ample material on record, which is admitted, to hold that it is Defendant
No. 2 who is occupying the suit premises. He has taken several steps to
protect his possession of the premises. That material ought to have been
considered by the Appellate Court in the light of plea raised by Naziya that
Defendant No. 2 had acted in collusion with the Plaintiff. The theory of
collusion was required to be set up by Naziya to explain the act of
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Defendant No. 2 filing Undertaking before the Executing Court 27 days

prior to she filing her obstructionist notice. However, the admitted
material on records shows collusion between Defendant No. 2 and Naziya.
It is Defendant No. 2 who is found to be in possession of the premises. He
is driving the whole litigation through his niece Naziya. Instead of
appreciating this admitted material on record, the Appellate Court has
erroneously adopted a technical approach in the present case by
remanding the proceedings to the Trial Court.
27) The Appellate Court’s finding of inconsistency in the findings
of the Trial Court about exclusive possession of Defendant No. 2 in the
light of documents showing proof of residence of Naziya in the suit
premises is again not well founded. Whether Defendant No. 2 resides in
the suit premises alone or with Naziya is irrelevant factor. The issue is
whether Naziya resides in the suit premises to the exclusion of Defendant
No. 2 for establishing her own independent right. The answer to the
question is admittedly in the negative. Apart from Defendant No. 2 being
found by the bailiff in the suit premises while serving the warrant of
possession, he himself has filed a specific application stating that he
resides with Naziya in the Suit premises as a part of her family.

28) The Appellate Court has also laid unnecessary emphasis on
Plaintiff’s conduct of filing execution proceedings after 11 years, which is
totally irrelevant factor for deciding the issue of Naziya’s independent
right to occupy the suit premises. The Appellate Court failed to notice
falsity into Naziya’s claim of Defendant No.2 giving up possession of the
suit premises and she exclusively possessing the same, despite availability
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of ample material on record. The Appellate Court had the record of bailiff

finding Defendant No.2 residing in the suit premises on 21 March 2024. It
also had the records of Trial Court indicating filing of two applications by
Defendant No.2 on 27 March 2024 claiming residence through Naziya, as
well as application on 23 July 2024 under Order 9 Rule 13 of the Code for
setting aside ex parte decree. However, all this material is completely
ignored by the Appellate Court. Instead of passing strictures against
Naziya for filing false claim of Defendant No.2 colliding with Plaintiff and
she being in possession of the suit premises to the exclusion of Defendant
No.2, the Appellate Court has proceeded to reward Naziya by ensuring that
Defendant No.2 continues to occupy the suit premises taking benefit of
opportunity of leading evidence granted to Naziya.
29) The Appellate Court ought to have appreciated the position
that it is Defendant No.2 who is operating the entire litigation behind the
curtains. In fact, he has come out openly by filing applications dated 27
March 2024 and 23 July 2024 claiming rights in respect of the suit premises
contrary to the eviction decree. It is unfortunate that the Appellate Court
has failed to appreciate this position and has allowed its jurisdiction to be
grossly misused and abused by Naziya and by Defendant No.2.
30) While this Court would ordinarily not interfere with the order
which only permits parties to lead evidence, however, it is seen that
Naziya is just a front set up by Defendant No. 2, who is operating the
entire litigation behind the scenes. He has set up Naziya for putting an
obstruction to execution of the decree. There are photographs on records
of Defendant No. 2 and Naziya being seen together in the Court premises.
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He has admitted his residence in the suit premises with Naziya. In such

circumstances, upholding the order of the Appellate Court on the ground
that it merely grants opportunity to Naziya to lead evidence in support of
her claim, would tantamount to assisting the Defendant No. 2 in his
nefarious designs. There is material irregularity in exercise of jurisdiction
by the Appellate Court, which has failed to lift the veil and notice as to
how Defendant No.2 is taking the Courts for a ride. The order passed by
the Appellate Court is thus indefensible and liable to be set aside.
31) The Petition succeeds and I proceed to pass the following
order:
(i) Judgment and order dated 27 November 2025 passed by the
Appellate Bench of the Small Causes Court in Execution
Appeal No. 95 of 2023 is set aside.
(ii) Trial Court’s Order dated 6 May 2023 passed in Obstructionist
Notice No.43 of 2023 is confirmed.

32) The Writ Petition is allowed in the above terms and disposed
of with no order as to costs.
[SANDEEP V. MARNE, J.]
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.04.22
20:58:52
+0530
NEETA
SHAILESH
SAWANT
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