Third party in possession of property claiming independent as tenant not party to decree under execution could resist such decree by seeking adjudication of his objection under Order 21 Rule 97

Equivalent Citation: 1998IIIAD(SC)624, AIR1998SC1827, 1998(3)ALLMR(SC)213, 1998(3)ALT1(SC), JT1998(3)SC244,
1998(2)MPLJ180, RLW1998(2)SC279, 1998(2)SCALE725, (1998)4SCC543, [1998]2SCR709
IN THE SUPREME COURT OF INDIA
C.A. No. of 1985
Decided On: 13.04.1998
Appellants: Shreenath & Another
Vs.
Respondent: Rajesh & Others
Hon'ble Judges: K. Venkataswami and A.P. Misra, JJ.

Citing Reference:
Brahmdco Chaudhary v. Rishikesh Prasad Jaiswal and Anr.
Discussed
Noorduddin v. Dr. K.L. Anand MANU/SC/0533/1995
Discussed
Smt. Usha Jain and Ors. v. Manmohan Bajaj and Ors. (overruled)
Case Note:
Civil - objection - Order 21 Rule 97 of CPC, 1908 - whether third party in possession of property
claiming independent as tenant not party to decree under execution could resist such decree by
seeking adjudication of his objection under Order 21 Rule 97 - person holding possession of
immovable property on his own right can object in execution proceeding under Order 21 Rule 97
and one has not to wait for his dispossession to enable him to participate in execution proceeding
- therefore it is clear that such person can object and get adjudication when he is sought to be
dispossessed by decree holder.



1. The seekers of justice many a time has to take a long circuitous routes, both on account of hierarchy of
Courts and the procedural law. Such persons are and can be dragged till the last ladder of the said
hierarchy for receiving justice but even here he only breaths earness of receiving the fruits of that justice
for which he has been aspiring to receive. To reach this stage is in itself an achievement and satisfaction
as he, by then has passed through a long arduous journey of the procedural law with may hurdles replica
of mountain certain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass
through the same terrain of the procedural law in the execution proceedings the morose is writ large on
his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon.
The creation of hierarchy of Courts was for a reasonable objective for conferring greater satisfaction to
the parties that errors, if any, by any of the lower Courts under the scrutiny of a higher Court be rectified
and long procedural laws also with good intention to exclude and filter out all unwanted who may be the
cause of obstruction to such seekers in his journey to justice. But this obviously is one of the causes of
delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also
stretches and litigation an much as possible. Thus, this has been the cause of anxiety and concern of
various authorities, Legislators and Courts. How to eliminate such a long consuming justice? We must
confess that we have still to go long way before true satisfaction in this regard is received. Even after one
reaches the stage of final decree, he has to undergo a long distance by passing through the ordained
procedure in the execution proceedings before he receives the bowl of justice.
1
2. The Courts within its limitations have been interpreting the procedural laws so as to conclude all
possible disputes pertaining to the decreetal property which is within its fold in an execution proceeding
i.e., including what may be raised later by way of another bout of litigations through a fresh suit. Similarly
legislatures equally are also endeavouring by amendments to achieve the same objective the present
case is one in this regard. Keeping this in view, we now proceed to examine the present case.
3. In interpreting any procedural law, where more than one interpretation is possible, the one which
curtails the procedure without eluding the justice is to be adopted. The procedural law is always
subservient to, and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice
is not to be followed.
4. This appeal arises out of the judgment and order of the High Court of Madhya Pradesh, Bench at
Indore, in Civil Revision No. 406 of 1983.
5. The question raised is, whether the third party in possession of a property claiming independent right
as a tenant not party to a decree under execution could resist such decree by seeking adjudication of his
objections under order 21, Rule 97 of the Civil Procedure code?
6. The respondent No. 1, Rajesh, filed a suit for the redemption of his mortgage against respondent No. 2,
Prem Shanker, which was decreed. The decree directed the delivery of vacant possession of the
mortgaged property to the applicant (Respondent No. 1). In the said suit, admittedly, the present
appellants were not parties. The decree-holder put his decree in execution in which the present
appellants obstructed on the ground that vacant possession cannot be delivered in execution because
they were the tenants in the shop from the year 1952 much before the execution of the mortgage which
was in the year 1962, hence, only symbolical possession can be given. There has been two rounds of
proceedings in execution. Initially, the Executing Court held that the decree-holder was not entitled to take
actual possession in execution of the decree against the non-applicants. The case of the decree-holder is
that in the suit it was held that the mortgagor had to deliver vacant possession to the mortgagee. Hence
he is entitled to get back vacant possession. Thus he made strong plea for a vacant possession in terms
of the decree. For him, it is submitted that a similar objection was taken by the judgment debtor Prem
Shanker that only symbolic possession could be given to the decree-holder. The objection was negatived
by the trial court, appellate court, and even by the High Court in the second appeal. Hence, the executing
court cannot go behind the decree. The appellants case is they were not parties to those proceedings.
However, this objection of the decree-holder was rejected in the first round by the Executing Court and
the Revisional Court holding that the person resisting viz. the present appellants were not parties to the
suit nor there is any decree against them. It seems subsequently, the decree-holder again moved another
application in the aforesaid execution case No. 1A of 19970-81 for delivery of vacant possession. The
present appellants also moved an application/objections under Order 21, Rule 97 C.P.C. resisting that
they cannot be dispossessed in terms of the said decree, as they were not parties to the said suit nor they
are deriving any right and title through the Judgement debtor. They claim separate and independent legal
right, not affected either by the mortgage or redemption of the mortgage. It is not clear as under what
circumstances the second application for actual possession was made by the decree-holder after the
matter was earlier disposed of. Since this point seems not raised either before the Executing Court or the
High Court, we are not adverting to this point. We find the Executing Court in the second round on
consideration of a subsequent decision of the Full Bench of the M.P. High Court in Smt. Usha Jain and
others v. Manmohan Bajaj and others, MANU/MP/0029/1980 : AIR1980MP146 , held that the
appellants had no right to object to the decree under order 21, Rule 97. The said full Bench held:-
"The executing Court has no jurisdiction to start an enquiry suo motu or at the instance of a third party
other than the decree-holder/auction-purchaser under 0.21, Rule 97. This rule is merely permissive and
not mandatory so that the decree-holder/auction-purchaser need not resort to it against his will and may
even apply for fresh warrant under 0.21, R. 35, C.P.C. Executing Court is not bound to stay its hands the
moment a third party files an objection to the execution nor the stay would continue till an unwilling
decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the
third party and negative the claim therein. If the Executing Court were to stay its hands till investigation
into a third party's claim is not finally decided then it would result in depriving the decree-holder of his
possession by filing repeated spurious claims.
No enquiry into the title or possession of a third party is contemplated at any rate at his instance either
under Rules 35 and 36 or Rules 95 and 96 of Order 21, C.P.C. when the decree-holder or the auction-
purchase applies for obtaining possession. Subsequently when the decree-holder or auction-purchaser is
met with obstruction or resistance in obtaining possession, one of the options open to him is to apply
2
under Rule 97 but that provision is merely permissive and not mandatory and it is open to the decree-
holder/auction-purchaser apply instead for a fresh warrant of possession. An enquiry at the instance of a
third party in possession is contemplated only under 0.21. R. 100 after he was dispossessed and not
before it.
The omission by the executing Court to investigate into the objection filed by a third party does not result
in injustice to the third party. It cannot be said that he would have no remedy to protect his possession
and have his title judicially investigated brief to his dispossession his only remedy then being under Order
21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an
independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to
protect his possession."
The High Court upheld the Executing Court's order following the said Full Bench decision of the MR High
Court. Hence this appeal. The only question raised is, whether the Full Bench decision is correctly
decided. In view of this Full Bench decision, objection of the appellant was rejected without considering
the points raised on merit or other objections.
7. In order to appreciate the controversy, Order 21, Rule 35, Order 21, Rule 36 and Order 21, Rule 97 are
quoted hereunder:-
"O. 21, R. 35: Decree for immovable property:-
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to
the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his
behalf, and, if necessary, be removing any person bound by the decree who refuses to vacate the
property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered
by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of
drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where a possession of any building is enclosure is to be delivered and the person in possession,
being bound by the decree, does not afford free access, the court, through its officers, may, after giving
reasonable warning and facility to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break open any door or do any other act
necessary for putting the decree-holder in possession.
O. 21, R: 36: Decree for delivery for immovable property when in occupancy of tenant:-
Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other
person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court
shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the
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.
O. 21, R. 97: Resistance or obstruction to possession of immovable property:-
(1) Where the holder of a decree for the possession of immovable property 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.
(2) Where any application is made under sub-rule (1) the court shall proceed to adjudicate upon the
application in accordance with the provisions herein contained."
This sub-clause (2) was substituted by the Amending Act 1976. Earlier sub-clause (2) was:
"The Court shall fix a day of investigating the matter and shall summon the party against whom the
application is made to appear and answer the same."
3
8. 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 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 99 conceives of resistance or
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 judgment debtor or
claiming independent right of his own including 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
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 obstructed by a stranger
is adjudicated and finality 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.
9. 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
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 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 tenant is in
actual possession. Order 21, Rule 97 as aforesaid, conceives of cases where delivery of possession to
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 stranger.
10. Prior to the 1976 Amending Act, provisions under Order 21, Rules 97 to 101 and 103 were different
which are quoted hereunder:-
"97 (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.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the
application is made to appear and answer the same.
98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause
by the judgment debtor or by some other person at his instigation, 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 judgment-debtor, or any person
acting at his instigation to be detained in the civil prison for a term which may extend to thirty days.
99. Where the court is satisfied that the resistance or obstruction was occasioned by any person (other
than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or
on account of some person other than the judgment-debtor, the Court shall make an order dismissing the
application.
100. (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 or where such property
4
has been sold in execution of a decree, by purchaser thereof, he may make an application to the Court
complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the
application is made and answer the same.
101. Where the Court is satisfied that the applicant was in possession of the property on his own account
or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into
possession of the property.
103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 and
rule 101 may institute a suit to establish the right which he claims to the present possession of the
property, but. subject to the result of such suit (if any), the order shall be conclusive."
11. So far sub-clause (1) of Rule 97 the provision is same but after 1976 amendment ail disputes relating
to the property made under Rules 97 and 99 is 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 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-holder 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 person's 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 his own, if resists
delivery of possession to the decree-holder the dispute and his claim has to be decided after 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 cases 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 has 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.
12. We find both either under the old law or the present law the right of a 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.
13. 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 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 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
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 Smt. Usha Jain, (supra) correctly decided the
law.
14. In Noorduddin v. Dr. K.L. Anand, MANU/SC/0533/1995 : (1995)1SCC242 it is held:-
"Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under
Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the
property arising between the parties to a proceeding or between the decree-holder and the person
claiming independent right, title or interest in the immovable property and an order in that behalf be made.
The determination shall be conclusive between the parties as if it was a decree subject or right of appeal
and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to
be taken. It has to be remembered that preceding Civil Procedure Code Amendement Act. 1976, right of
suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By
necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the
immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code
5
appears to be to put an and to the protraction of the execution and to shorten the litigation between the
parties or persons claiming right, title and interest in the immovable property in exeuction."
15. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another MANU/SC/0191/1997 :
[1997]1SCR463 , the question raised was whether a stranger occupying the premises on his own right
when offered resistance to the execution of the decree obtained by the decree holder can or cannot
request the Executing Court to adjudicate his claim without being insisted upon that first he must
handover the possession and then move an application under Order 21, Rule 97. It is held in para 9:-
"Para 9: In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all
disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose
attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported
stranger to the decree and which comes to be noted by the executing court as well as by the decree-
holder the remedy available to the decree-holder against such an obstructionist is only under Order 21,
Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reassurance of warrant for
possession under Order 21, Rule 35 with the help of police force, as that course would amount to
bypassing and circumventing the procedure laid down under Order 21, Rule 97...."
16. In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid
Full Bench of the M.P. High Court in the case of Usha Jain v. Manmohan Bajaj (supra) cannot be held to
be a good law. As we have recorded above, both the Executing Court and the High Court have rejected
the application of the applicant under Order 21, Rule 97 only on the basis of the said Full Bench decision,
hence the said order cannot be sustained. Accordingly, both the orders dated 20th February, 1985
passed by the High Court in Civil Revision No. 406 of 1983 and the order dated 20th April, 1983 passed
by Executing Court in execution case No. 1-A/70/81 is herewith quashed.
17. We direct the Executing Court to consider and dispose of the objections and the application of the
appellants under Order 21, Rule 97 after giving opportunity to the parties in accordance with law. The
appeal is accordingly allowed. On the facts and circumstances of the case, cost on the parties.
6