Code of Civil Procedure, 1908 – s.47; Or. XXI, rr.97, 101 – Tamil Nadu Cultivating Tenants’ Protection Act, 1955 – Objection raised by Respondent nos.1 and 2 against execution of the decree claiming to be in possession of the suit property in their capacity as cultivating tenants, upheld by courts below – Respondent nos.1 and 2, if entitled to the protection of the 1955 Act and whether the Executing Court could have decided the question of validity of the decree on this ground: Held: The decree in favour of the appellants granting specific performance with possession was affirmed by the High Court and the SLP against the order of the High Court also stood dismissed – Respondent Nos. 1 and 2 chose not to contest the original suit before the ASJ – They did not appear even before the High Court and Supreme Court in the appeals filed by the vendors (judgment debtors) – Further, the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself – Respondent nos.1 and 2 could have filed a joint written statement stating that they are cultivating tenants at the stage of the original suit itself, but rather they raised the said issue in the form of objections at the stage of execution – Furthermore, respondent nos.1 and 2 failed to produce any documentary evidence as regards their claim of being cultivating tenants, even at the stage of their s.47 application – Present is a case of collusion between the vendors and the respondent nos.1 and 2 (nephews of the vendors), to deprive the appellants from availing the fruits of the decree in their favour – Even otherwise, the respondent nos.1 and 2 cannot claim protection of the special legislation of 1955 for the period during which they were not registered as tenants cultivating the suit properties – The certificate that they are in possession of the suit properties since 1974 does not establish any independent right of possession in their favour – Further, the certificate itself appears to have been obtained in collusion with the vendors who at the time of giving “no objection” had ceased to be the owners of the suit property – Respondent nos.1 and 2 are not the bona fide cultivating tenants of the suit property – Thus, there is no question of deciding the validity of the decree on the ground of being a nullity due to lack of jurisdiction of the civil court to evict cultivating tenants – The rejection by the High Court of the amendments to the execution petition filed by the appellants was erroneous, set aside – Impugned order and the order passed by the Executing Court, set aside. [Paras 60, 63-65, 68-71]
Directions by Supreme Court – Inordinate delay by the Executing Courts in deciding execution petitions: Held: In view of the direction in Rahul S. Shah case requiring the execution proceedings to be completed within six months from the date of filing, High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions – High Courts to issue an administrative order or circular directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the concerned presiding officer would be answerable to the High Court on its administrative side – The data along with the figures of pendency and disposal thereafter collected by all the High Courts to be forwarded to the Registry of the Supreme Court with individual reports. [Paras 74, 75, 77] Code of Civil Procedure, 1908 – s.47; Or.XXI rr.97, 101 – s.47 vis-à-vis Or.XXI r.97 – Questions to be determined by the Court executing decree – Resistance or obstruction to possession of immovable property:
Held: If an application u/Or.XXI, r.97 is made, then its determination will be under r.101 – r.103 further provides that where any application has been adjudicated upon u/rr.98 or 100, the order made thereon shall have the same force and will be subject to the same conditions as to an appeal or otherwise as if it were a decree – U/s.47 all questions relating to the execution, discharge or satisfaction of the decree, have to be determined by the executing court whereas u/r. 101 all questions including question relating to right, title or interest in the property arising between the parties to the proceedings have to be determined by the executing court – s.47 is a general provision whereas Or.XXI, rr.97 and 101 deal with a specific situation – Moreover, s.47 deals with executions of all kinds of decrees whereas Or.XXI, rr.97 and 101 deal only with execution of decree for possession – Apart from that, earlier, i.e., prior to the amendment, every order falling u/s. 47 was appealable (as the terms ‘decree’ included the order u/s.47) whereas now only certain orders as provided for u/Or. XXI have been made appealable – In the present case, the application of the respondents No.1 and 2 u/s.47 was in substance an application for determination of their possessory rights under Or XXI, r.97. [Para 52 ]
Civil Procedure Code, 1908 – s.47 – Or.XXI, r.101 – Harmonious construction – Questions to be determined by the Court executing decree:
Held: A harmonious reading of s.47 with Or.XXI r.101 implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree – Thus, only matters arising subsequent to the passing of the decree can be determined by an executing court u/s.47 and Or.XXI R.101. [Para 62]
Code of Civil Procedure, 1908 – Or. XXI, r.97 – Resistance or obstruction to possession of immovable property – Application u/Or. XXI, r.97 – Nature:
Held: An application u/Or. XXI, r.97 may be made in respect of obstruction raised by any person in obtaining possession of the decretal property– Courts adjudicating such application have to do so in accordance with r.101 and hold a full-fledged inquiry to determine all questions including questions relating to right, title or interest in the property arising between the parties. [Para 42] Words and Phrases – Civil Procedure Code, 1908 – Or. XXI, rr.35, 97-101 – Decree for immovable property – Resistance or obstruction to possession of immovable property – “any person” – Interpretation of:
Held: In execution of decree for possession of immovable property, the executing court delivers actual physical possession of the decretal land to the decree holder – r.35 confers jurisdiction on the executing Court to remove any person, who is bound by the decree and who refuses to vacate the property – “any person who is bound by the decree”, clearly mandates that removal can only be of a person who is bound by the decree – Further, rr.97 to 101 deal with situation when execution is obstructed or resisted by “any person” claiming right, title or interest in the property – The words “any person” include even a stranger to a decree resisting the decree of possession as not being bound by a decree or by claiming independent right, title or interest to the property – Thus, r.97 not only provides remedy to a decree holder in obtaining possession of an immovable property but also to a stranger who obstructs or resists delivery of possession of the property by claiming derivative title from the judgment debtor or independent right, title or interest in the decretal property – Whereas, r.99 gives right to a third party claiming right, title or interest in the property to seek restoration of the decretal property. [Paras 48, 49]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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