Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4649 OF 2022
[ARISING OUT OF SLP (C) NO.12833 OF 2014]
SRIRAM HOUSING FINANCE AND INVESTMENT
INDIA LTD. …APPELLANT
VERSUS
OMESH MISHRA MEMORIAL CHARITABLE
TRUST ...RESPONDENT
J U D G M E N T
J.K. Maheshwari, J.
1. Leave granted.
2. This appeal is arising out of the judgment dated 16.04.2014
passed by High Court of Delhi in C.M. (M) No.493 of 2012,
preferred by appellant company herein under Article 227 of
Constitution of India, against the order dated 13.01.2012 passed
in Execution Petition No.46 of 2006, vide which, the Executing
Court entertained the objections filed by appellant company and
Signature Not Verified
Digitally signed by
Rachna
Date: 2022.07.06
16:48:33 IST
Reason:
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proceeded to frame issues with a direction to the parties to lead
evidence on those issues.
3. The Execution Petition was filed by respondent trust,
alongwith legal heirs of late Shri N.D. Mishra for execution of
judgment and decree dated 01.02.2003 passed by Trial Court in
Civil Suit No. 278 of 2002. The suit was filed by late Shri N.D.
Mishra making prayer for a decree for: (i) possession of suit
property; (ii) sum of Rs.8000/ on account of arrear of rent for
the month of May, 1994; (iii) sum of Rs.30,000/ towards
damages/mesne profits/other charges for unauthorized use and
occupation by the defendant with effect from 01.06.1994 till the
date the defendant delivers back possession of suit property; (iv)
permanent injunction against the defendant restraining her from
using the suit property; and (v) mandatory injunction against the
defendant restraining her from obstructing the plaintiff in
enjoying the right of passage from main entrance on ground floor
to the terrace. The Trial Court decreed the suit in favour of
plaintiffs while restraining the defendant from obstructing the
plaintiff from enjoying the right of passage from the main
entrance on ground floor to the terrace and from raising further
construction. Further regarding damages and mesne profits, the
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Trial Court directed payment of Rs.30,000/ per month with
effect from 01.06.1994 till the date of delivery of possession of
suit property by the defendant. Execution proceedings were
initiated by decree holders and being aggrieved, the appellant
company filed objections before Executing Court, which were
duly considered and decided by the Court vide order dated
13.01.2012. The said order was challenged by the respondent
trust before the High Court by filing the petition, which was
allowed vide order dated 16.04.2014 setting aside the order of the
Executing Court.
4. The facts briefly put are that, one late Shri N.D. Mishra
(now deceased) was the owner of the property in dispute i.e. Kothi
No.27, situated at Ishwar Nagar in New Delhi. The disputed
property was selfacquired by the deceased. Shri N.D. Mishra had
a family consisting his wife Smt. Raj Mishra (now deceased), two
sons namely Mr. Yogesh Mishra and Mr. Omesh Mishra (now
deceased) and three married daughters namely Smt. Dheera
Sharma, Smt. Neena Bharadwaj and Smt. Meena Sharma. In
memory of the deceased son, the respondent trust was
established in year 1992 by Smt. Raj Mishra in the name and
style of “Omesh Mishra Memorial Charitable Trust”.
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5. The history of instant litigation starts from the time when
late Shri N.D. Mishra in year 1986, lent a portion of the ground
floor of the suit property on lease to one Ms. Nisha Chauhan
(hereinafter referred to as ‘tenant’) for a period of two years at the
monthly lease rent of Rs. 7000/. On expiry of the period, the
lease was terminated but the tenant failed to vacate the suit
property, whereafter, Shri N.D. Mishra filed Civil Suit No.181 of
1994 (i.e. suit for possession/recovery of arrears of
rent/damages/mesne profit and mandatory/permanent
injunction) against the tenant. During the pendency of suit, Shri
N.D. Mishra died on 27.05.1998. On 13.08.1998, by filing
application under Order XXII Rule 3 of Code of Civil Procedure,
1908 (hereinafter referred to as ‘CPC’), substitution was allowed
by Trial Court and Smt. Raj Mishra (wife), Mr. Yogesh Mishra
(son), Mrs. Dheera Sharma, Mrs. Neena Bharadwaj and Mrs.
Meena Sharma (daughters) were substituted as legal heirs. Later,
one Subhash Chander Sabharwal (the authorized trustee of
respondent trust herein) moved an application dated 02.08.1999
under Order I Rule 10 read with Section 151 of CPC before the
Trial Court and sought impleadment as plaintiff in Civil Suit
No.181/1994 on the anvil of ‘Will dated 29.08.1992’ executed by
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Shri N.D. Mishra in his lifetime, whereby, as stated in the
application, Shri N.D. Mishra in terms of aforesaid ‘Will’,
bequeathed the property in question in favour of the respondent
trust. It was at this time when the existence of the will dated
29.08.1992 executed by Shri N.D. Mishra was brought to the
notice of the Trial Court. Reply to the said application filed on
behalf of respondent trust seeking impleadment was sought by
Trial Court from the substituted legal heirs. Vide application
dated 03.12.1999, the plaintiff legal heirs filed their reply and
stated that they were not in knowledge of the said will executed
by Shri N.D. Mishra in favour of the Trust and admitted the
ownership of respondent trust over the property in question in
the following manner –
“4. ……..The legal heirs of Shri N.D. Mishra first time came to
know regarding the execution of Will of Shri N.D. Mishra
on 06.06.1998 when one of the legal heir Smt. Neena
Bharadwaj has attended the meeting of Omesh Mishra
Memorial Trust Pvt. Ltd. It is correct that Shri N.D.
Mishra on account of fact and by virtue of said
WILL, the property bearing Kothi No. 27, Ishwar
Nagar, New Delhi has been bequeathed in favour of
Omesh Mishra Memorial Charitable Trust ……It is
further correct that said Trust shall be entitled to get the
aforesaid property transferred in its own name and trust
is also competent to disposeoff the said property……It is
further correct that
by virtue of said Will, Omesh
Mishra Memorial Charitable Trust/applicant has
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become the owner of the suit property and entitled
to substitute as plaintiff/coplaintiffs in the present
suit ….”
It is worthwhile here to mention that the none of the legal heirs
dispute the validity/genuineness of the will and admitted the
existence of same. Thereafter, vide order dated 30.11.2000, the
Trial Court allowed the application for impleadment and
respondent trust became the coplaintiff in Civil Suit
No.181/1994 alongwith plaintiffs legal heirs.
6. Eventually, vide judgment and decree dated 01.02.2003, the
‘decree for possession’ in respect of suit premises, ‘mandatory
injunction’ as well as ‘mesne profits/damages’ were passed in
favour of plaintiffs i.e. the legal heirs and against the defendant
i.e. the tenant. The relevant portion of the said judgment and
decree is reproduced below for ready reference –
"In view of my finding on the foregoing issues, the decree for
possession in respect of the suit premises i.e. house bearing
no.27, Ishwar Nagar, Main Mathura Road, New Delhi – 110025
as shown in red in Ex. PW1/3 as well as decree for possession
in respect of portion shown in yellow in site plan Ex. PW 1/3 is
passed in favour of the plaintiff and against the
. Further, decree of mandatory injunction is passed in
defendant
favour of plaintiff thereby restraining the defendant from
obstructing the plaintiff from joying the right of passage from the
main entrance on the ground floor to the terrace and from raising
further construction. The suit of plaintiff is also been decreed in
respect of the relief of mesne profits/damages and decree for
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damages/mesne profits @ Rs.30,000/ per month passed in
favour of the plaintiff and against the defendants w.e.f.
01.06.1994 till date the defendant delivers back the possession
of the suit premises…..”
Originally, in the judgment and decree dated 01.02.2003, the
name of the respondent trust herein was not incorporated,
whereafter, vide order dated 16.10.2004, the correction with
respect to name of parties was carried out by Trial Court and
name of respondent trust was included as one of the decree
holders. Henceforth, for the purpose of judgment and decree
dated 01.02.2003, the legal heirs of Shri N.D. Mishra alongwith
respondent trust herein became the decree holders, whereas the
obligations of the judgment debtor vested with the tenant for
execution. Pursuant thereto, vide possession letter dated
22.12.2003, the tenant handed over the vacant and physical
possession of the suit property to one Shri S.R. Pandey who was
acting as power of attorney holder and authorized agent of Mr.
Yogesh Mishra.
7. On the said factual premise, Execution Petition No.13/2004
was filed by decree holders seeking enforcement of judgment and
decree dated 01.02.2003 against the tenant. It was at this time
when the dispute arose, once it came to the notice of the
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respondent trust that based on mutation entry in revenue
records in his favour, Mr. Yogesh Mishra had transferred the suit
property to the appellant company vide sale deed dated
12.04.2004. The appellant company while acting as the agent of
Mr. Yogesh Mishra even took the possession of the suit property
directly from tenant i.e., the judgment debtor on 22.12.2003. On
the perusal of the possession letter, it was found that the
appellant company termed itself as bonafide agent/power of
attorney holder of Mr. Yogesh Mishra.
8. Subsequently, the appellant company filed an application
dated 23.09.2004 under Order XXI Rule 58 of CPC in the
execution proceedings and prayed for dismissal of execution
petition on the ground that vide registered sale deed dated
12.04.2004, appellant company became owner of the suit
property. Vide order dated 27.11.2004, the Executing Court
dismissed the aforesaid application filed by appellant company as
nonmaintainable on the ground that respondent trust was
impleaded as coplaintiff in the main suit based on ‘Will dated
29.08.1992’ which was never disputed/objected by legal heirs of
late Shri N.D. Mishra. The relevant portion of order reads as
under –
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“(A) ……I have given my thoughtful consideration to the rival
contention of the parties. It is clear from the record that
vide order dated 30.11.2000, Omesh Mishra Memorial
Charitable Trust was impleaded as coplaintiff in the main
suit as there was a WILL in favour of Trust dated
29.08.1992 and this WILL was not objected by the
LR’s of late Shri N.D. Mishra . Considering all these
facts a decree has been passed in favour of DH, thus,
applicant have got no right to stay in the property and is
liable to handover the vacant and peaceful possession to
the DH. It is also clear that judgment/decree for
possession has been passed in favour of the trust and
thus Sh. Yogesh Mishra has/had got no right to transfer
the title/possession of the suit property to anyone. Decree
dated 01.02.2003 passed in favour of the Omesh Mishra
Memorial Charitable Trust. LR’s of Sh. N.D. Mishra has not
been challenged by the JD or anyone else, thus, the same
has become final …..”
Review against such dismissal was also preferred by appellant
company, though the same came to be dismissed by Executing
Court vide order dated 24.12.2004.
9. Thereafter, appellant company preferred Civil Revision
No.34/2005 challenging the aforesaid order of rejection of
application alongwith the order passed in Review. The said
Revision also came to be dismissed by High Court vide order
dated 27.11.2008 with the observation that since the appellant
company was a ‘purchaser pendente lite’, it could not have
instituted the objections and the only remedy available to it was
to file a separate suit to get the dispute adjudicated regarding
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title and ownership of suit property. The order passed in Civil
Revision was impugned by the appellant company before this
Court in Special Leave Petition (C) No.31457 of 2008, which also
came to be dismissed vide order dated 12.01.2009, with an
observation that “since the High Court has permitted filing of a
suit, it goes without saying that observation made in present
proceedings will not be determinative issue if the suit is filed.”
Following the dismissal of Special Leave Petition with aforesaid
observation, the appellant company filed separate suit bearing
no. CS (OS) No.434/2009 before High Court for ‘declaration and
permanent injunction’ against the respondent trust and legal
heirs of Shri N.D. Mishra. Written statement and objections were
taken on record and after hearing both the parties, the said suit
vide order dated 22.12.2010 was ‘dismissed as withdrawn’ by
High Court with liberty as under–
“5. Since the learned Senior Counsel for the plaintiff has
sought permission to withdraw the suit with liberty to file
objections, the same is allowed subject to all objections
being raised by defendants herein as may be permissible
under law.
6. The suit is accordingly dismissed as withdrawn with
liberty as prayed for.”
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10. In view of the liberty granted by High Court vide order dated
22.12.2010, the appellant company on 03.01.2011 filed its
objections under Order XXI Rules 97 to 101 CPC in Execution
Petition No.46/2006 (i.e., the same proceedings previously
numbered as Execution Petition No.13/2004) and reiterated the
same objections as raised by it under Order XXI Rule 58 in the
previous round of litigation. The respondent trust filed objections
and challenged the maintainability of the application. Vide order
dated 13.01.2012, the Executing Court while dealing with the
objections framed the issues and directed the parties to lead their
evidence. Being aggrieved, the respondent trust preferred CM(M)
No.493/2012 and C.M. No.7470/2012 before High Court and
assailed the order dated 13.01.2012 passed by Executing Court
in Execution Petition No.46/2006. The High Court vide order
dated 16.04.2014 allowed the petition and set aside the order
passed by Executing Court primarily on the ground that the
Executing Court at the stage of execution proceedings framed the
issues to lead parties to evidence without keeping in mind that
once the objections under Order XXI Rule 58 of CPC filed by the
appellant company against the execution of the decree, were
already decided by the Executing Court, High Court as well as
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this Court against the appellant company in previous
proceedings with the observation that the only remedy left with
appellant company is to file an ‘independent/separate suit’ to
decide the dispute with respect to title/ownership of the suit
property, the objections filed by appellant company again at the
stage of execution proceedings were not maintainable. The High
Court further observed that, if the objections were to be held
maintainable, it would amount to a fresh trial and hence, the
decree holder may not be able to get the fruits of the decree for
the next couple of decades while the illegal possession obtained
by appellant company with respect to suit property shall remain
with it.
11. The appellant company has assailed the impugned
judgment interalia on the following grounds –
a) The appellant company is a bonafide purchaser of the suit
property as it was purchased from Mr. Yogesh Mishra (son of
Shri N.D. Mishra) vide registered sale deed dated 12.04.2004;
b) Mr. Yogesh Mishra was the sole and absolute owner of the
suit property by virtue of ‘Will dated 23.05.1998’ and same
was sold to appellant company by Mr. Yogesh Mishra being a
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decree holder after the decree was passed. Therefore, the
appellant company is legally entitled to raise objections
under Order XXI Rule 97 to 101 of CPC;
c) High Court erred in interpreting Order XXI Rule 102 of CPC
as it is only applicable when judgment debtor has transferred
the property after the institution of suit, whereas, in the
instant case, the suit property was sold by decree holder;
d) It is well settled that the Executing Court has discretion to
frame issues and to conduct a trial in the matter while
adjudicating the objections filed under Order XXI Rule 97 to
101 of CPC.
e) Reliance is placed on following case laws to substantiate the
grounds as raised above –
i. Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Another,
(1998) 3 SCC 723.
ii. Vateena Begum Vs. Shamim Zafar & Anr., (2020) SCC
OnLine Del 1617.
12. Per contra, the counsel for the respondent trust supported
the impugned judgment passed by High Court and contended as
follows –
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a. The appellant company is claiming the suit property on the
anvil of ‘Will dated 23.05.1998’ which has not been proved in
any court of law by leading primary evidence in terms of
Section 64 of Indian Evidence Act;
b. The Executing Court has gone into the claim or objection
preferred by appellant company and once finality has been
bestowed upon adjudication made under Order XXI and Rule
58, it can only be supplanted by another decree in Civil Suit.
Therefore, having already invoked Order XXI Rule 58 of CPC,
the appellant cannot invoke proceedings under Order XXI
Rule 97 to 101 of CPC under doctrine of election;
c. The appellant company cannot invoke proceedings under
Order XXI Rule 97 as only the ‘decreeholder’ or an ‘auction
purchaser’ is entitled to make an application thereto. The
appellant company does not fall under both the categories.
Further, for purpose of Rule 99, the applicant has to make a
statement that he/she has been ‘dispossessed of immoveable
property’ by either the decreeholder or auction purchaser. In
the instant case, the appellant company is very much in
possession of suit property;
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d. The judicial records sufficiently show that Mr. Yogesh Mishra
had no title over the suit property which he could have
transferred to appellant company;
e. ‘Will dated 29.08.1992’ stands proved in Court in Civil Suit
No.181 of 1994 and hence, the said Will cannot be disputed
merely by oral evidence;
13. Heard the rival contentions of learned counsel for both
parties and perused the material available on record. Before
adverting to the rival contentions raised by both the parties, it is
apt to reproduce the Order XXI alongwith Rules 97 to 102 for
ready reference –
“Order XXI – Execution of decrees and orders
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 subrule (1), the
Court shall proceed to adjudicate upon the application in
accordance with the provisions herein contained.]
98. Orders after adjudication –
(1) Upon the determination of questions referred to in rule
101, the Court shall, in accordance with such
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determination and subject to the provisions of subrule (2),
a. make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
b. pass such other order as, in the circumstances of the
case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied
that the resistance or obstruction was occasioned without
any just cause by the judgmentdebtor or by some other
person at his instigation or on his behalf, or by any
transferee, where such transfer was made during the
pendency of the suit or execution proceeding, it shall direct
that the applicant be put into possession of the property,
and where the applicant is still resisted or obstructed in
obtaining possession, the Court may also, at the instance
of the applicant, order the judgmentdebtor, or any person
acting at his instigation or on his behalf, to be detained in
the civil prison for a term which may extend to thirty days.
99. Dispossession by decreeholder 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.
100. Order to be passed upon application complaining of
dispossession –
Upon the determination of questions referred to in rule
101, the Court shall, in accordance with such
determination, –
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a. make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
b. pass such other order as, in the circumstances of the
case, it may deem fit.
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.
102. Rules not applicable to transferee pendente lite –
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 such person.
Explanation – In this rule, “transfer” includes a transfer by
operation of law.
14. From bare reading of the aforesaid provisions, it is clear that
Order XXI Rule 97 deals with the resistance or obstruction to
possession of immovable property by ‘any person’ obtaining
possession of the property against the decree holder. It empowers
the ‘decree holder’ to make an application complaining about
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such resistance or obstruction. On the other hand, Rule 99 of
Order XXI deals with the right of ‘any person’ other than the
judgment debtor who is dispossessed by holder of a decree for
possession of such property or in case where such property is
sold in furtherance of execution of a decree. The said provision
vests ‘any person’ with a right to make an application
complaining about such dispossession of immovable property in
the manner prescribed above. Rule 98 and Rule 100 deal with the
power of the Court to pass appropriate orders upon an
application preferred under Rule 97 and Rule 99 respectively. In
so far as Rule 101 is concerned, it confers jurisdiction on the
Court as well as casts an obligation to determine the questions
relating to right, title or interest in the property, if any, arising
between parties on an application made by the concerned person
under Rule 97 or Rule 99 in the same proceedings for
adjudication and not in a separate suit. Lastly, Rule 102 clarifies
that Rule 98 and Rule 100 shall not apply in a case where
resistance or obstruction in execution of a decree for the
possession of immovable property is offered by ‘transferee
pendentelite’ i.e., the person to whom the property is transferred
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by the judgment debtor after institution of the suit in which the
decree sought to be executed was passed.
15. On conjoint reading of the aforesaid provisions, it can be
observed that under Rule 97, it is only the ‘decree holder’ who is
entitled to make an application in case where he is offered
resistance or obstruction by ‘any person’. In the present case, as
admitted by the appellant itself, it is a bonafide purchaser of the
property and not the ‘decree holder’. As available from the
material placed on record, it is the respondent trust alongwith
legal heirs of late N.D. Mishra who are the decree holders and not
the appellant. Therefore, it is obvious that appellant cannot take
shelter of Rule 97 as stated above to raise objections against
execution of decree passed in favour of respondent. Further, Rule
99 pertains to making a complaint to the Court against
‘dispossession’ of the immovable property by the person in
‘possession’ of the property by the holder of a decree or purchaser
thereof. It is factually not in dispute that appellant purchased the
said property from Mr. Yogesh Mishra vide sale deed dated
12.04.2004 and has been in vacant and physical possession of
the property since then. Had it been the case that the appellant
was dispossessed by the respondent trust in execution of decree
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dated 02.09.2003, the appellant would have been well within the
ambit of Rule 99 to make an application seeking appropriate
relief to be put back in possession. On the contrary, the appellant
in the instant case was never dispossessed from the property in
question and till date, as contended and unrefuted, the
possession of same rests with the appellant. Considering the
aforesaid, the appellant cannot be said to be entitled to make an
application under Rule 99 raising objections in execution
proceedings since he has never been dispossessed as required
under Rule 99.
16. Now, as stated above, applications under Rule 97 and Rule
99 are subject to Rule 101 which provides for determination of
questions relating to disputes as to right, title or interest in the
property arising between the parties to the proceedings or their
representatives on an application made under Rule 97 or Rule
99. Effectively, the said Rule does away with the requirement of
filing of fresh suit for adjudication of disputes as mentioned
above. Now, in the present case, Order XXI Rule 101 has no
applicability as the appellant is neither entitled to make an
application under Rule 97 nor Rule 99 for the reasons stated
above. Accordingly, we find no substance in the argument raised
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by learned counsel for the appellant. In such circumstances,
Executing Court had no occasion to frame issues and give
direction to parties to lead evidence on objections raised by
appellant. By doing so, the Executing Court transgressed the
scope of Order XXI Rule 97 and Rule 99. Therefore, in our
considered view, the High Court has rightly set aside the order of
Trial Court entertaining the objections filed by appellant under
Order XXI Rule 97 to Rule 102.
17. Resultantly, this appeal is dismissed with a direction to the
Executing Court to decide the execution case as expeditiously as
possible not later than six months.
………..………………...J.
(INDIRA BANERJEE)
.….………………………J.
(J.K. MAHESHWARI)
New Delhi;
July 06, 2022
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