Nafees Khan vs Smt. Chutto Bai

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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
th
ON THE 16 OF OCTOBER, 2026
WRIT PETITION No. 16761 of 2015
CNR No.: MPHC010495482015
NAFEES KHAN
Versus
SMT. CHUTTO BAI AND OTHERS
Appearance:
Mohammad Aadil Usmani - Advocate for the petitioner.
Shri Yuvraj Singh Bais - Advocate for respondents.
ORDER
The present petition under Article 226 of the Constitution of India is
filed feeling aggrieved by the order dated to 27.08.2015 (Annexure-P/3) and
n d
30.6.2015 (Annexure-P/5) passed by the II Civil Judge Class-I, Bhopal
whereby, the application filed by the petitioner Mohammad Nafees Khan
under Order XXI Rule 97 read with Section 151 of CPC and the review
petition were dismissed. The petitioner has prayed for the following reliefs :-
"1. This Hon'ble court may kindly be pleased to set aside the order
passed by the courts below Annexure P/3 and P/5. by directing the
trial court to rehear the objection of the petitioner and passed order
on merits by speaking order in the ends of justice.
ii. Any other relief this Hon'ble court may deems fit and proper
may also be granted."
2. The exposition of facts giving rise to the present petition in brief, is as
under:
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Signed by: VIVEK KUMAR
TRIPATHI
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(A) The father of the petitioner, Shafique Khan, had purchased part of
house in dispute admeasuring area 1300 sq.ft from Abdul Wahab
vide registered sale deed dated 07.11.1960. A partition suit was filed by
Muhammad Mukeem against Abdul Wahab and others for two houses
claiming to be joint family property. The matter travelled up to the
High Court in second appeal. The petitioner or his predecessor in
interest Shafique, were not party to the partition suit between the family
members of the Abdul Wahab and Mohammad Mukeem. The High
Court vide judgement dated 11.4.1990 (Annexure-P/1) passed in
Second Appeal No.181/1984 granted partial decree of partition in
favour of Mohd. Mukeem over the houses in dispute. Later, other
family members Chuttu Bi, Mohd. Yaseen, Mohd. Hakeem and Mohd.
Hafeez filed a suit for partition against the legal heirs of Abdul Wahab.
The First Appellate Court considered the judgement dated 11.4.1990
passed in a Second Appeal No.181/1984 by the High Court and passed
another decree of partition in favour of the appellant/plaintiff over the
remaining part of disputed, One and half house against the legal
representatives of Abdul Wahab.

(B) The decree holder/plaintiff filed execution proceedings for
execution of Appellate judgement and decree dated 19.4.2002 passed in
Regular Appeal No.22-A/2002 (Annexure-P/6). The execution
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proceedings at Case No.16/2008 is pending before the II Civil Judge
Class-I, Bhopal. The petitioner filed an application under Order XXI
Rule 97 of CPC claiming to be title holder of part of the disputed house
in furtherance of registered sale 07.11.1960 executed by Abdul Wahab
in favour of his father Shafique. The petitioner request that the
judgement and decree passed in subsequent Civil Suit No.25/2007 is not
binding on him and the decree holders be restrained from interfering in
his business and possession over the part of the disputed house.
(C) The Civil Judge, Class-I, Bhopal rejected the application of the
petitioner vide impugned order dated 30.06.2015 (Annexure-P/3) on the
ground that the petitioner was not party to the suit, if he had any
objection on the basis of his title and possession, he could have filed
independent suit. Further, it is not clear that which part of the house was
comprised in sale deed dated 07.11.1960.
(D) The petitioner submitted a review application explaining the details
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Signed by: VIVEK KUMAR
TRIPATHI
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but the review application was also rejected vide impugned order dated
27.08.2015 (Annexure-P/5).

3 . Learned counsel contends that the interest of the predecessor-in-title of
petitioner, Shafique Khan, on a part of the disputed house in furtherance of
registered sale deed dated 07.11.1960, was protected in the judgement and
decree passed in the Second Appeal No.181/1984 by the High Court. The
trial Court did not consider this aspect of the matter and erroneously rejected
the application and the review petition stating that the plaintiff should have
filed an independent civil suit. Learned counsel submits that the provisions
contained in Order XXI Rule 101 CPC bars separate suit for the issues
determinable by Executing Court relating to right, title or interest in the
disputed property. Therefore, the impugned orders suffer from manifest
illegality.
4 . Per contra, learned counsel for the respondents submits that the
judgement and decree passed by the High Court in Second Appeal
No.181/1984 has been satisfied and the execution proceedings were
concluded on satisfaction of decree as reflected from para -5 of the order
dated 27.8.2015 of the executing Court (Annexure-P/5). The present
execution proceedings relates to a distinct civil suit filed by Chuttu Bi,
Mohd. Yaseen, Mohd. Hakeem and Mohd. Hafeez, therefore the petitioner
had no legal right to object in the present execution proceedings. Further, the
petitioner had an equally efficacious remedy of filing an appeal against the
order passed by the executing Court on application under Order XXI Rule 97
of CPC. Hence, the petition is not maintainable.
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
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5. Heard learned counsel for both the parties and perused the record.

6. Order XXI Rule 97 of CPC provides as under :-
"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 obtaining possession of the property, he may make an
application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed
to adjudicate upon the application in accordance with the provisions herein
contained."
Order XXI Rule 99 of CPC provides as under :-
"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 101 of CPC 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."
7 . The Supreme Court in the case of Brahmdeo Chaudhary v. Rishikesh
Prasad Jaiswal reported in AIR 1997 S.C. 856 considering the scope of these
provisions observed as under:-
8. 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
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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 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 de-serves to be restored to him. If such an
application is allowed after adjudication than 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 or 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.
9. In short the aforesaid statutory provisions of Order 21 lay down a complete
code for resolving all disputes pertaining to execution of the decree for
possession obtained by a decree-holder and whose attempts at executing the
said decree meet with rough weather. Once resistance is offered by 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 is only under Order 21, Rule 97, sub-rule (1) and he
cannot bypass such obstruction and insist on reissuance of warrant for
possession under Order 21, Rule 35 with the help of police force, as that course
would amount to bypassing and circumventing the procedure laid down under
Order 21, Rule 97 in connection with removal of obstruction of purported
strangers to the decree. Once such an obstruction is on the record of 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 21, 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
21, 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 21, Rule 99.
Order 21, Rule 97 deals with a stage which is prior to the actual execution of

Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
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the decree for possession wherein the grievance of the obstructionist can be
adjudicated upon before actual delivery of possession to the decree-holder.
While Order 21, Rule 99 on the other hand deals with the subsequent stage in
the execution proceedings where a stranger 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 21 and it is
not as if that such a stranger to the decree can come in the picture only at the
final stage after losing possession and not before it if he is vigilant enough to
raise his objection and obstruction before the warrant for possession gets
actually executed against him. With respect the High Court has totally ignored
the scheme of Order 21, Rule 97 in this connection by taking the view that only
remedy of such stranger to the decree lies under Order 21, Rule 99 and he has
no locus 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 on merits and he would be thrown
off lock, stock and barrel by use of police force by the decree-holder. That
would obviously result in irreparable injury to such obstructionist whose
grievance would 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 21, 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
multiplicity of proceedings and parallel proceedings are avoided and the gamut
laid down by Order 21, Rules 97 to 103 would remain a complete code and the
sole remedy for the parties concerned to have their grievances once and for all
finally resolved in execution proceedings themselves."
(Asgar v. Mohan Varma, (2020) 16 SCC 230; Periyammal v. V. Rajamani,
(2025) 9 SCC 568 also relied)
Thus, learned Civil Judge, Class-I (the executing Court) committed

manifest error in concluding that the petitioner should have filed separate suit
to establish his right and he cannot intervene or object in execution of the
decree.
8 . The High Court, while considering the dispute relating to partition
between family members of Abdul Wahab and Mohd. Mukeem with regard
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Signed by: VIVEK KUMAR
TRIPATHI
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to two houses in dispute between the family members in para-6 of the

judgment dated 11.04.1990 (Annexure-P/1) has specifically held that Mohd.
Shafique (father of the petitioner) was not made a party to the civil suit,
therefore, the validity of the sale deed executed by Abdul Wahab in favour
of Mohd. Shafique cannot be considered. The High Court concluded that the
judgment and decree granting partial partition in favour of Mohd. Mukeem
would not be binding on Mohd. Shafique. The High Court granted partial
partition over the house in dispute in favour of Mohd. Mukeem. Thereafter,
other family members Mohd. Yaseen, his sons and Chuttu Bi d/o Abdul
Razzak filed another suit for partition over same property, i.e., two houses.
The First Appellate Court vide judgment dated 19.04.2002 passed in Regular
Civil Appeal No.23-A/2002 (Annexure-P/6) also granted partial partition in
favour of the plaintiffs over these two houses. Since, the property in dispute
in both the suits between the family members of Abdul Wahab, Mohd.
Yaseen and Mohd. Mukeem remains the same, the conclusion of Second
Appellate Court, i.e., the High Court in judgment dated 11.04.1990
(Annexure-P/1) obviously gives a right to Nafeez Khan, son of Mohd.
Shafique, to claim protection from the execution of subsequent decree
relating to same property. Learned executing Court, instead of considering
this aspect of the matter and enquiring into the validity and legality of claim
of title and possession by Nafeez over the part of disputed property, the
location of the property purchased vide sale deed dated 07.11.1960 by
Shafique erroneously rejected the application. All these questions raised by
the petitioner Nafeez relates to right, title, interest and possession in the
property under execution, therefore, they ought to be determined by the
executing Court under Order XXI Rule 97 to 101 of CPC. These issues
cannot be determined by a separate suit.
9 . In view of the aforesaid foregoing discussion, this Court is of the
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considered opinion that the executing Court, i.e., II Civil Judge Class-I,
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Bhopal committed manifest error akin to illegality, in rejecting the

application filed by the petitioner vide impugned order dated 30.06.2015 and
also in rejecting the review application v i d e impugned order dated
27.08.2015.
10. It is true that an order finally deciding an application under Order XXI
Rules 97 to 101 of the CPC is treated as a decree and is ordinarily appealable
under Order XXI Rule 103. However, the existence of an alternative remedy
does not impose an absolute bar on the exercise of jurisdiction under Article
226 of the Constitution. In the present case, the executing Court declined to
exercise the jurisdiction specifically vested in it to adjudicate petitioner’s
claim on the merits and expected the petitioner to file a separate suit, which
is barred by Order XXI Rule 101 CPC. Further, the petition has remained
pending since 2015. At this stage, relegating the petitioner to an appeal
would prolong the dispute and cause serious procedural prejudice. Therefore,
the objection regarding the alternative remedy is rejected and this Court
considers it appropriate to exercise writ jurisdiction to correct the
jurisdictional error and secure the ends of justice. (State of U.P. v. Indian
Hume Pipe Co. Ltd., (1977) 2 SCC 724; Radha Krishan Industries v. State of
H.P., (2021) 6 SCC 771, relied upon.)
11. Accordingly, the order dated 30.06.2015 (Annexure-P/3), rejecting the
petitioner’s application under Order XXI Rule 97 of the CPC and the order
dated 27.08.2015 (Annexure-P/5), rejecting his review application, are set
nd
aside. The executing Court, i.e., II Civil Judge Class-I, Bhopal is directed
to reconsider the application filed by the petitioner under Order XXI, Rule
97 of CPC and conduct proper enquiry into the claim made in the application
and pass a well reasoned order in accordance with Order XXI Rules 97 to
103 of the CPC. No opinion is expressed on the merits of those claims.
Having regard to the delay in the proceedings, the enquiry shall preferably
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Signed by: VIVEK KUMAR
TRIPATHI
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be concluded within six months from the date of receipt of a certified copy

of this order.
11. With this direction, the petition stands disposed of.
C.c as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
P

Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 17-10-2026
14:09:09