Case Details Smt. Ved Kumari (Dead through Her Legal Representative) Dr. Vijay Agarwal vs Municipal Corporation of Delhi through Its Commissioner

Court

Supreme Court of India

Date

24 August 2023

Case No.

Civil Appeal No(s). 5409-5410 of 2023

Result

Allowed

Bench

B.V. Nagarathna, Prashant Kumar Mishra

Citation

[2023] 11 S.C.R. 602 : 2023 INSC 764

Issue for consideration

The question for consideration was whether the High Court was justified in upholding the order of the Executing Court holding that the decree for possession of immovable property is not executable against the judgement debtor, merely because the decree-holder lost possession to an encroacher.

Headnote

Code of Civil Procedure, 1908 – Ord. XXI rr 97 to 101 – Execution of judgment and orders – Executing Court holding an execution decree as inexecutable, on the ground that the decree-holder lost possession to an encroacher – Correctness of:

Held: Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decreeholder lost possession to a third party/encroacher – If this is allowed, every judgment-debtor in possession of the immoveable property till the decree is passed, would hand over possession to a third party to defeat the decreeholder’s right and entitlement and this would continue indefinitely and no decree for immovable property can be executed – It was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance was offered by any stranger to the decree, the same be adjudicated upon in accordance with rr. 97 to 101 of Ord. XXI – On facts, no resistance offered by any purported stranger/encroacher to the decree – In the absence thereof, the Executing Court had no occasion to invoke Ord. XXI, rr 97 to 101, at the instance of the decree-holder – Executing Court could not have closed the execution proceedings holding that the decree is inexecutable – Thus, the orders passed by the High Court and the Executing Court set aside – Issuance of direction to the Executing Court to execute the decree by effecting delivery of physical vacant possession to the decreeholder. [Paras 10, 15 and 16] LIST OF CITATIONS AND OTHER REFERENCES

Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. (1997) 3 SCC 694 : [1997] 1 SCR 463; Bhanwar Lal v. Satyanarain (1995) 1 SCC

6 : [1994] 4 Suppl. SCR 208; Shreenath & Anr. v. Rajesh & Ors. (1998) 4 SCC 543 : [1998] 2 SCR 709; Sameer Singh & Anr. v. Abdul Rab & Ors. (2015) 1 SCC 379 : [2014] 10 SCR 1004; Jini Dhanrajgir & Anr. v. Shibu Mathew & Anr. (2023) SCC Online SC 643 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED

ORDER AND APPEARANCES

JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT PRASHANT KUMAR MISHRA, J. Leave granted. 2. These appeals arise from the judgment and orders dated 07.04.2016 and 04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487 of 2016 respectively, whereby the High Court has affirmed the order of the Executing Court dated 11.09.2012 holding that the decree for possession of immoveable property is not executable against the judgment-debtor. 3. The factual matrix of the case is that the appellant (since deceased represented through Lrs.) who is the original plaintiff, leased out land measuring 400

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