Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
CASE NO.:
Special Leave Petition (civil) 2461 of 1999
PETITIONER:
N.S.S.NARAYANA SARMA & ORS.
Vs.
RESPONDENT:
M/S.GOLDSTONE EXPORTS P. LTD. & ORS.
DATE OF JUDGMENT: 23/11/2001
BENCH:
D.P. Mohapatra & Shivaraj V. Patil
JUDGMENT:
W I TH
Civil Appeal Nos.______________ of 2001
(@ SLP(C) Nos.2503-04/1999, 2523-2525/1999)
J U D G M E N T
D.P.MOHAPATRA, J.
Leave is granted in all the SLPs.
The judgment rendered by a Division Bench of the
Andhra Pradesh High Court on 10th November, 1998
disposing of a batch of appeals filed under Clause 15 of the
Letter Patent, against the judgment of a single Judge is
under challenge in these appeals. Since common questions
of fact and law were raised by the parties in all the cases the
High Court disposed of the appeals by a common judgment.
The dispute relates to a property extending over 196.20
guntas under Survey No.172 of Hydernagar village. The
contest is between two sets of transferees of the property,
while the appellants claim to be transferees of holders of
pattas issued in their favour by the Pygah Committee of
Nawab Khurshed Jah Pygah, the respondents trace their
title to transfers by some decree-holders in the suit. The
objections filed by the appellants under Order 21 Rule 99
read with Rule 101 of the Civil Procedure Code (for short
the CPC) having been dismissed by the High Court as non-
maintainable, the appellants are before this Court assailing
the judgment of the High Court.
The genesis of the proceedings leading to the present
cases shorn of unnecessary details, may be stated thus:
One Dildar Unnisa Begum filed OS No.41/1955 in the City
Civil Court, Hyderabad against the defendants for a decree
of partition of the suit properties which according to the
plaintiff were Matruka property of the late Nawab Khurshed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
Jah Pygah. The High Court transferred the suit to its file
and on such transfer the suit was re-numbered as
C.S.No.14 of 1958. A preliminary decree was passed in the
suit on 28th June, 1963 on the basis of the compromise
entered into between the parties. No appeal having been
filed against the preliminary decree it attained finality. The
subject matter of the present proceeding is included as Item
No.38 of Schedule IV of the plaint. Item No.38
corresponding to Survey No.172 of Hydernagar village to an
extent of 196 acres 25 guntas was allotted to plaintiff
no.2/defendants nos.27, 50, 51, 52, and 116 in the
preliminary decree. In pursuance of the preliminary decree
the High Court appointed a Commissioner for division of the
property in terms of the decree.
M/s.M.S.Cyrus Investments Ltd. is stated to
have purchased 50 shares of HEH Nizam who himself was
a purchaser of certain shares from the original decree-
holder and thus became defendant no.206 in the suit.
Subsequently, the said M/s.M.S.Cyrus Investments Ltd.
assigned its assets in favour of M/s.Goldstone Exports and
some others who are respondents herein. After the said
assignment M/s.Goldstone Exports and others filed
applications before the High Court for certain reliefs
including delivery of possession of the property of their
share and for mutation of their names in the revenue
records. A single Judge of the High Court allowed the
applications filed by M/s.Goldstone Exports and other
assignees for being impleaded as defendants in the suit.
Thereafter the applicants so impleaded as defendants in the
suit filed E.P.No.3/96 seeking delivery of possession. A
single Judge of the High Court by the order passed on 29th
March, 1996 ordered delivery of possession of the property
in favour of the applicants. The Bailiff appointed by the
court is stated to have delivered possession of the property
to the respondents.
The appellants tried to obstruct delivery of
possession of the property to the applicants. The gist of
their case was that the late Nawab Khurshed Jah Pygah
administration had granted pattas in favour of several
cultivators and supplementary sethwar was also issued,
wherein the names of the pattadars were recorded. Since
the supplementary sethwar had not been implemented the
lands were erroneously shown as government lands.
Subsequently, however the supplementary sethwar was
implemented and their names were recorded as transferees
of the property in the year 1980. Thereafter the pattadars
entered into an agreement of sale with SETWIN Employees
Housing Cooperative Society and Shri Satya Sai
Cooperative Housing Society Ltd. of which the appellants
are the members. Registered sale-deeds were also
executed in favour of the appellants to the extent of 85
acres of land. Pakka houses were constructed on the lands
transferred in favour of the appellants. Assessment of
property tax in respect of the houses has been made by the
Kukatpally Municipality.
Coming to know of the execution petition filed by the
respondents for delivery of possession before the District
Judge, Ranga Reddy District, some of the appellants filed
petitions under Order 21 Rule 97 read with Section 101 of
the CPC resisting the execution. The District Judge
dismissed the petitions holding that he was not the
Executing Court, he was merely implementing the orders
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
passed by the High Court and, therefore, could not entertain
such applications. The appellants approached the High
Court in appeal but were unsuccessful. Thereafter they filed
Civil Appeal Nos.5610-5611/1997 (Arising out of SLP
(C)Nos.4162-63/1997) and Civil Appeal Nos.5609 of 1997
(Arising out of SLP (C) No.23706 of 1996) and Civil Appeal
Nos.5612-14/1997 (Arising out of SLP (C) Nos.8787-8789 of
1997) before this Court which were disposed of by the order
dated 14.8.1997 wherein both the parties were directed to
approach the Executing Court and the Executing Court was
directed to decide the question of maintainability of the
applications under Order 21 Rule 99 CPC and also the
question of limitation, uninfluenced by any direction given
by the High Court. The High Court was directed to go into
all the questions arising in the case and finally decide the
controversies as it thinks proper and in accordance with law.
That is how the appeals were placed before the Division
Bench which disposed them of by the judgment under
challenge.
From the facts narrated in the impugned judgment it is
clear that the appellants claimed to have become absolute
owners of the land on the basis of their purchase of the
same from the pattadars much prior to the Andhra Pradesh
(Telangana Area) Abolition of Jagirdar Regulation Act, 1958
came into force. It was the further case of the appellants
that they were in possession of the lands and had
constructed pucca houses thereon. They contended that
their right, title and interest in the property could not have
been affected by the preliminary decree passed in
C.S.No.14 of 1958 in which they were not parties.
The relevant provisions of the CPC material for the
case are Rules 97 to 103 of Order 21 of the Code. Rule 97
provides that :(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. Such an
application is to be dealt with by the Court in accordance
with the provisions contained in the Code.
Under Rule 98 provision is made regarding the order
to be passed by the Court in accordance with the
determination either making it to be allowing the application
and directing that the applicant be put into the possession of
the property or dismissing the application or passing such
other order as, in the circumstances of the case, it may
deem fit.
Under Rule 99(1) it is laid down 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. Under sub-rule (2)
thereof it is provided that where any such application is
made, the Court shall proceed to adjudicate upon the
application in accordance with the provisions contained in
the Code.
Under Rule 100 it is laid down that : Order to be
passed upon application complaining of dispossession
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
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.
Rule 101 contains provisions regarding questions to
be determined. It reads as follows :
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.
Under Rule 102 it is provided Nothing in Rules 98
and 100 shall apply to resistance or obstruction in execution
of a decree for the possession of immovable property by a
person to whom the judgment-debtor has transferred the
property after the institution of the suit in which the decree
was passed or to the dispossession of any person.
Under Rule 103 any order made by the Court
upon adjudication under Rule 98 or Rule 100 shall have the
same force and be subject to the same conditions as to an
appeal or otherwise as if it were a decree.
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. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
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 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.
(Emphasis supplied)
Interpreting the provisions in these rules, a three
Judge bench of this Court in the case of Silverline Forum
Pvt. Ltd. vs. Rajiv Trust and Anr., (1998) 3 SCC 723 held :
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 pendentelite of the
judgement-debtor, the scope of the
adjudication would be shrunk to the
limited question whether he is such a
transferee and on a finding in the
affirmative regarding that point the
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.
When a decree-holder complains
of resistance to the execution of a
decree it is incumbent on the execution
court to adjudicate upon it. But while
making adjudication, the court is obliged
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
to determine only such question as may
be arising between the parties to a
proceeding on such complaint and that
such questions must be relevant to the
adjudication of the complaint.
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 of the resister raised it.
The questions which the 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 resister or the obstructor must
legally arise between him and the
decree-holder. In the adjudication
process envisaged in Order 21 Rule
97(2) of the Code, the execution court
can decide whether the question raised
by a resister 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.
(Emphasis supplied)
Tracing the change in the statutory provisions brought
about by the amendment of the CPC this Court in the case
of Shreenath & Anr. Vs. Rajesh & Ors., (1998) 4 SCC 543,
made the following observations :
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 the 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
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 97
conceives of resistance of 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 the judgment-debtor or
claiming independent right of his own
including a tenant not party to the suit or
even a stranger. A decree-holder, in
such a 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 the
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 obstruction by a
stranger is adjudicated and finally given
even in the executing proceedings. We
find the expression any person under
sub-clause (1) is used deliberately for
widening 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, including tenants or other
persons claiming right on their own,
including a stranger.
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
the 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
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 the tenant is in actual
possession. Order 21 Rule 97, as
aforesaid, conceives of cases where
delivery of possession to the 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 a stranger.
Xxx xxx xxx
So far sub-clause (1) of Rule 97
the provision is the same but after the
1976 Amendment all disputes relating to
the property made under Rules 97 and
99 are to be adjudicated under Rule
101, while under unamended provision
under sub-clause (2) of Rule 97, the
executing court issues summons to any
such person obstructing possession
over the decretal property. After
investigation under Rule 98 the court
puts back a decree-holder in possession
where the court finds obstruction was
occasioned without any just cause,
while under Rule 99 where obstruction
was by a person claiming in good faith
to be in possession of the property on
his own right, the court has to dismiss
the decree-holders application. Thus
even prior to 1976, right of any person
claiming right on his own or as a tenant,
not party to the suit, such persons right
has to be adjudicated under Rule 99
and he need not fall back to file a
separate suit. By this, he is saved from
a long litigation. So a tenant or any
person claiming a right in the property
on the own, if resists delivery of
possession to the decree-holder, the
dispute and his claim has to be decided
after the 1976 Amendment under Rule
97 read with Rule 101 and prior to the
amendment under Rule 97 read with
Rule 99. However, under the old law, in
case order is passed against the person
resisting possession under Rule 97 read
with Rule 99 then by virtue of Rule 103,
as it then was, he was to file a suit to
establish his right. But now after the
amendment one need not file suit even
in such cases as all disputes are to be
settled by the executing court itself
finally under Rule 101.
We find that both either under the
old law or the present law, the right of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
tenant or any person claiming right on
his own of the property in case he
resists, his objection under Order 21
Rule 97 has to be decided by the
executing court itself.
Rule 100 of the old law, as
referred in the aforesaid Full Bench
decision of the Madhya Pradesh High
Court is a situation different from what is
covered by Rule 97. Under Rule 100
(old law) and Order 99, the new law
covers cases where persons other than
the judgment-debtor is dispossessed of
immovable property by the decree-
holder, of course, such cases are also
covered to be decided by the executing
court. But this will not defeat the right of
such a person to get his objection
decided under Rule 97 which is a stage
prior to his dispossession or a case
where he is in possession. In other
words, when such person is in
possession the adjudication to be under
Rule 97 and in case dispossessed
adjudication to be under Rule 100(old
law) and Rule 99 under the new law.
Thus a person holding possession of an
immovable property on his own right can
object in the execution proceeding
under Order 21 Rule 97. One has not to
wait for his dispossession to enable him
to participate in the execution
proceedings. This shows that such a
person can object and get adjudication
when he is sought to be dispossessed
by the decree-holder. For all the
aforesaid reasons, we do not find the
Full Bench in Usha Jain ((AIR 1980 MP
146) correctly decided the law.
(Emphasis supplied)
This Court in the case of Anwarbi vs. Pramod
D.A.Joshi & Ors., 2000 (10) SCC 405, interpreting the
provisions in Order 21 Rules 97 and 101 clarified the
position that the obstructionist in possession can only be
dispossessed in accordance with law person in
possession of immovable property claiming legal entitlement
thereto and obstructing execution of decree for possession
may not be dispossessed till his rights are adjudicated in
appropriate proceedings. The decree-holder cannot take
possession unless such proceedings terminate in his favour.
This Court further held :
Learned counsel for the appellant has
contended that the appellant is being
repeatedly threatened with
dispossession. We, therefore make it
clear that the possession of the
appellant cannot be disturbed except in
accordance with law; and that in view of
the obstruction raised by her to the
execution of the said decree, the rights
of the obstructionist will have to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
decided in appropriate proceedings, in
accordance with law. Unless and until
such proceedings terminate in favour of
the decree-holder, the decree-holder
cannot take possession and the
appellant is entitled to retain
possession.
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 obstructing
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. From the averments made in the
petition filed by the appellants before the executing Court it
is clear that they are claiming independent right to the
property from which they are sought to be evicted in
execution of the decree. It is the further case of the
appellants that the right in the property had vested in them
much prior to filing of the present suit the decree of which is
under execution. It is to be kept in mind that the suit as
initially filed was a suit for partition simplicitor. In such a
suit the High Court in course of execution proceedings
ordered delivery of possession. Whether such a direction
given in the suit is valid or not is a separate matter. We
need not say anything more on the question at present. As
noted earlier, the learned single Judge and the Division
Bench dismissed the petition filed by the appellants as non-
maintainable without entering into the merits of the case.
The Division Bench appears to have taken the view that
since the appellants are claiming the property through the
Paigah Committee or the State Government, who are
parties in the suit, they are bound by the decree. The view
taken by the Division Bench is unsustainable and does not
at all stand scrutiny under law. It amounts to, if we may put it
that way, begging the question raised in the petition filed by
the appellants. At the cost of repetition, it may be stated
here that the appellants are claiming independent title to the
property as the transferees from the pattadars whose land
did not vest in the State Government under the provisions of
Andhra Pradesh (Telangana Area) Abolition of Jagirdar
Regulation Act, 1958. On a perusal of the orders passed
by the single Judge as well as Division Bench of the High
Court, we are constrained to observe that the said orders
are based on a complete mis-reading of the case of the
appellants and mis-conception of the legal position relevant
to the matter. Considering the facts and circumstances of
the case, we are of the view that the matter should be
remitted to the High Court for fresh consideration of the
petitions filed by the appellants by a single Judge at the first
instance.
Accordingly, the appeals are allowed. The order
dated 28th December, 1995 of the learned single Judge in
C.S.No.14 of 1958 which was confirmed by the Division
Bench in the order dated 10th November, 1998 in
O.S.A.Nos.10,11,18,20/1996 & 35, 36 and 37 of 98
(appealed from) is set aside and the matter is remitted to the
High Court for fresh consideration of the petitions filed by
the appellants and disposal in accordance with law. The
matters shall be placed before a single Judge of the High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
Court other than the learned Judge who passed the order,
at the first instance. The contesting respondents shall pay
to the appellants a sum of a Rs.10,000/- as costs of these
appeals.
...J
(D.P.MOHAPATRA)
..J.
(SHIVARAJ V.PATIL)
November 23, 2001