Code of Civil Procedure, 1908 : s. 47, Ord. XXI r. 97 – Execution of decrees– Resistance to delivery of possession to decreeholder or purchaser – Original plaintiff filed suit for declaration of title and recovery of possession against the defendants – Suit decreed in favour of the plaintiff and the defendants directed to put the plaintiff in possession of the suit property – In appeal, decree modified to the extent of paying compensation to defendants in lieu of part-payment of purchase consideration made by defendant no.
1 and thereafter, the defendants would surrender the vacant possession of the property – Execution application by the appellantson and daughter of the plaintiff – Executing Court held that the objections filed by the respondents, who had purchased the property from defendant no. 1 to be maintainable and deemed it necessary to adjudicate the same on their own merits – On appeal, held: Claim regarding right, title and interest in respect of their respective shares in the decretal property, as raised by the respondents, cannot be thrown out at the threshold since it is well within their rights to contest the application u/ Ord. XXI r. 97 filed by the appellants – Since evidence is required to be led before it, the Executing Court was justified in holding the objections to be maintainable at this stage not in the sense that the decree cannot be executed against them but in the sense that a prima facie case had been set up for an enquiry to be conducted, and posting the matter for evidence to be led by the parties – Upon determination of the questions referred to in r. 101, the Executing Court would proceed in the manner mandated by r. 98 –Thus, interference with the order under challenge not called for – Executing Court to deal with the application of the appellants u/Ord. XXI r. 97 together with the objections raised by the respondents on their own merits – Appellants have been deprived of the fruits of the decree for over two decades, it would be just and proper that the Executing Court decides the issue as early as possible.
Constitution of India : Art. 136 – Power to grant leave under – Appellant directly coming before this Court against the order of the Executing Court without subjecting such orders to any challenge before the High Court – Permissibility of – Held: This Court should not entertain such matters – Litigants should not be indulged to hop, skip and jump to reach the Supreme Court for the remedy is quick and more efficacious – Supreme Court in its discretion does entertain special leave petitions directly from orders of tribunals/courts without the High Court having been approached only in matters where substantial questions of general importance are involved or where a similar issue is pending for its consideration – This Court would not allow a party invoking the ‘special leave’ jurisdiction to bypass the remedy available – Alternative remedy. Dismissing the appeals and Contempt petition, the Court HELD : 1.1 Section 47 CPC, being one of the most important provisions relating to execution of decrees, mandates that the court executing the decree shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit. What is intended by conferring exclusive jurisdiction on the executing court is to prevent needless and unnecessary litigation and to achieve speedy disposal of the questions arising for discussion in relation to the execution, discharge or satisfaction of the decree. Should there be any resistance offered or obstruction raised impeding due execution of a decree made by a court of competent jurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI enable the executing court to adjudicate the inter se claims of the decre appellants have been deprived of the fruits of the Decree for over two decades, it would only be just and proper to request the Executing Court to proceed to decide the contentious issues in accordance with law e-holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by driving the parties to institute independent suits. No wonder, the provisions contained in Rules
97 to 106 of Order XXI CPC under the sub-heading “Resistance to delivery of possession to decree-holder or purchaser” have been held to be a complete code in itself. Rules 97 to 103 of Order XXI provide the sole remedy both to parties to a suit as well as to a stranger to the decree put to execution. [Para 17][565-F-G; 566-A-C]
1.2 In terms of the ordainment of Rule 102 of Order XXI, Rules 98 and 100 thereof would not 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. [Para 23][567-E]
1.3 The submission that the respondents are pendente lite transferees, the doctrine of lis pendens applies, and in view of the clear terms of Rule 102, the objections were not maintainable; therefore, the respondents are not entitled to the protection of having an adjudication of their claims in terms of Rule 98, though attractive at first blush, pales into insignificance in view of the peculiar facts obtaining here. If, indeed, there have been transfers post dismissal of the Suit during the time when there was no pending lis, it would be most appropriate for the Executing Court to determine the question as to whether any of the transfers made by defendant no. 3 to the respondents would attract Rule 102. This would indeed involve an exercise of leading of evidence by the parties and merely because the Suit was ultimately decreed on 21st October 2000 and ultimately was upheld by this Court with a minor modification of the amount of compensation, that would not be sufficient justification to throw out the objections raised by the respondents as being devoid of merit. [Paras 24 and 25][567-F-G; 568-A-B]
1.4 The impugned order of the Executing Court bearing in mind the unchallenged order dated 5th April 2018 passed by the High Court has found the objections to be maintainable, at least warranting an enquiry. On facts, there is no legal infirmity in such order deserving interference. [Para 27][568-E]
1.5 Simply because this Court did not interfere with the first appellate decree dated 11th February 2014 is no ground to hold that such order would bar an enquiry of the nature contemplated by Rule 101. This Court would not allow its vision to be colored by treating the order dated 13th October 2014 as bringing an end to the controversies between the decree-holders and the strangers/third parties, who were not before it. While it cannot be gainsaid that the dignity, prestige and majesty of this Court has to be maintained, yet, merely because the issue between the Appellants on the one hand and defendant nos. 2 and 3 on the other has attained finality, the same would not afford any justification for this Court, much less sufficient justification, to uphold the contention of the appellants which has the effect of subverting, rather than effectuating, the substantive right that Rules 97 to 103 of Order XXI confer on strangers/third parties not bound by the decree for recovery of possession. The claim regarding right, title and interest in respect of their respective shares in the decretal property, as raised by the respondents, cannot be thrown out at the threshold since it is well within their rights to contest the application under Order XXI Rule 97, CPC filed by the appellants. Since evidence is required to be led before it, the Executing Court was well-nigh justified in holding the objections to be maintainable at this stage not in the sense that the decree cannot be executed against them but in the sense that a prima facie case had been set up for an enquiry to be conducted, and posting the matter for evidence to be led by the parties. Upon determination of the questions referred to in Rule 101, the Executing Court would proceed in the manner mandated by Rule 98. [Para 28][568-E-H; 569-A-C]
1.6 This Court should not entertain the appeals against the order of the Executing Court without such order having been subjected to any challenge by the Appellants before the High Court. Litigants should not be indulged to hop, skip and jump to reach the Supreme Court for no better reason than the remedy is quick and more efficacious. As a matter of practice, the Supreme Court in its discretion does entertain special leave petitions directly from orders of tribunals/courts without the High Court having been approached only in matters where substantial questions of general importance are involved or where a similar issue is pending for its (the Supreme Court’s) consideration. The power to grant leave under Article 136 itself being discretionary, this Court would not allow a party invoking the ‘special leave’ jurisdiction to bypass the remedy available at the level of the High Court without the two situations being satisfied. Indeed, this is not one such case. [Para 29][569-D-F]
1.7 There is no reason to interfere with the order under challenge. It is upheld. The Executing Court shall proceed to deal with the application of the appellants under Rule 97 of Order XXI CPC together with the objections raised by the respondents on their own merits and without being influenced by any observation made in this order which has been necessitated only for disposal of the present appeals. Having regard to the fact that the appellants have been deprived of the fruits of the Decree for over two decades, it would only be just and proper to request the Executing Court to proceed to decide the contentious issues in accordance with law as early as possible without granting unnecessary adjournments to any of the parties. [Para 30-32][569G-H; 570-A-B]
1.8 The Contempt Petition initiated by the appellants to punish defendant nos. 2 and 3 for willful disobedience of the order passed by this Court in Special Leave Petition (C) No. 24344/2014, at this stage, does not survive; hence, is dismissed. [Para 33][570-C]
The General Manager of The Raj Durbhunga, Under the Court of Wards vs. Maharajah Coomar Ramaput Singh (1871-72) 14 Moo IA 605; Kuer Jang Bahadur vs. Bank of Upper India Ltd. Lucknow AIR 1925 Oudh 448; Martin Burn Ltd. vs. Corporation of Calcutta AIR 1966 SC 529 : [1966] SCR 543; Usha Sinha vs. Dina Ram (2008) 7 SCC 144 : [2008] 4 SCR 1192; Board of Trustees vs. Nikhil Gupta (2015) 10 SCC 1339; Sriram Housing Finance and Investments India Ltd. vs. Omesh Mishra Memorial Charitable Trust (2022) SCC OnLine SC 794; Firm Ganpat Ram Rajkumar vs. Kalu Ram and Ors. (1989) Supp 2 SCC 418 : [1989] 1 Suppl. SCR 223; Cheeranthoodika Ahmmedkutty & Anr. vs.
Parambur Mariakutty Umma & Ors. (2000) 2 SCC 417 : [2000] 1 SCR 725; Brahmdeo Chaudhary vs.
Rishikesh Prasad Jaiswal (1997) 3 SCC 694 : [1997] 1 SCR 463; T Vijendradas & Anr. vs. M. Subramanian & Ors. (2007) 8 SCC 751 : [2007] 10 SCR 880; ITI Ltd. v. Siemens Public Communications Network Ltd (2002)
5 SCC 510 : [2002] 3 SCR 1122; Columbia Sportswear Company v. Director of Income Tax, Bangalore (2012)
11 SCC 224 : [2012] 7 SCR 187; Asgar vs. Mohan Verma (2020) 16 SCC 230 : [2019] 2 SCR 664;
Bhanwar Lal vs. Satyanarain (1995) 1 SCC 6 : [1994]
4 Suppl. SCR 208; Noorduddin v. Dr. K.L. Anand (1995)
1 SCC 242 : [1994] 4 Suppl. SCR 322; Babulal v. Raj Kumar & Ors. (1996) 3 SCC 154 : [1996] 2 SCR 763; Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr. (1998)
3 SCC 723 : [1998] 2 SCR 587 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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