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PETITIONER:

BRAHMDEO CHOUDHARY

Vs.

RESPONDENT:

RISHIKESH PRASAD JAISWAL & ANR.

DATE OF JUDGMENT: 22/01/1997

BENCH:

A.S. ANAND, S.B. MAJHUDAR

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

In this appeal by special leave the appellant has posed

a short question or our consideration. It runs as under:

"Whether the appellant who claims to be a stranger,

occupying decretal premises in his own right and who has

offered resistance to the execution of the decree obtained

by the decree-holder against the judgment-debtor qua such

property can request the Executing Court to adjudicate upon

his resistance and obstruction without being insisted upon

that first he must hand over possession and then only move

an application under Order XXI Rule 99 Code of Civil

Procedure (`CPC' for short)?"

The High Court agreeing with the Executing Court has

negatived the aforesaid request of the appellant by holding

that such stranger to the decree who has put forward his

obstruction in the execution proceedings has the only remedy

under Order XXI Rule 99, CPC after his obstruction is first

removed and he is dispossessed of the premises. This Court

granted special leave to appeal to the appellant under

Article 136 of the Constitution of India and granted stay of

dispossession by its order dated 17th September 1996. Shri

Sanyal, learned senior counsel for the appellant has raised

a serious grievance against the aforesaid view of the High

Court.

For resoling the aforesaid controversy between the

appellant on the one hand and respondent no.1 decree-holder

on the other a few introductory facts deserve to be noted at

the outset.

Respondent no.1 filed an Eviction Suit No. 54 of 1988

in relation to six and a half dhurs of the suit land against

respondent no.2 and his mother Bachani Devi. A decree was

passed in favour of respondent no.1 against the judgment-

debtor respondent no.2 in 1988 by the Court of Munsif II,

Munger, Respondent no.1 filed execution proceedings in 1990

against respondent no.2 judgment-debtor. These proceedings

were registered as Execution Case No. 25 of 1990. On 25th

April 1991 respondent no.1 decree-holder obtained warrant

for delivery of possession from the Executing Court against

respondent no.2. When the bailiff went on spot to execute

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the warrant on 28th April 1991 he was resisted by the

present appellant as well as his brothers Sitaram Choudhary

and Jago Choudhary along with 20-25 persons and because of

the resistance offered by them and on account of abuses ad

throwing of bricks and stones indulged into by them it was

impossible to execute the warrant for possession. Under

these circumstances the decree-holder by his application

dated 6th May 1991 requested that help of magistrate and

armed force be made available at his cost for execution of

the decree. It appears that the said application remained

lingering on the file of Executing Court for number of years

and ultimately the Executing Court directed execution of the

warrant for possession by affording help of police force to

the decree-holder. It was at that stage that the present

appellant filed a written application on 22nd January 1996

before the Executing Court to stay operation of the said

warrant and to decide his objections. By a rejoinder dated

1st February 1996 respondent no.1 decree-holder raised the

question of maintainability of such an application before

handing over actual possession to the decree-holder. The

Executing Court without adjucating upon the objections of

the appellant on merits and without deciding whether the

obstruction or resistance offered by him was legally

justified or not dismissed the appellant's application dated

22nd January 1996 by order dated 15th February 1996. The

Executing Court took the view that the remedy of the

appellant was to move an application under Order XXI Rule

99, CPC only after he was dispossessed and as that stage was

not still reached the request of the appellant to adjudicate

his claim could not be entertained. It is this order of the

Executing Court which has come to be confirmed by the High

Court of Judicature at Patna by the impugned order dated

17th May 1996.

In the background of the aforesaid factual matrix it is

necessary to have a look at the relevant statutory

provisions governing the controversy between the parties. As

respondent no.1 decree-holder seeks to execute his decree

for possession of immovable property against judgment-debtor

respondent no.2 he has rightly invoked provisions of Order

XXI, CPC by putting the decree for possession of immovable

property into execution. His application for issuance of a

fresh warrant for possession with the police aid as moved by

him on 6th May 1991 purports to invoke the provision of

Order XXI Rule 35, CPC which reads as under:

"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, by 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 possession of any

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building on 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."

A mere look at the aforesaid provision shows that

warrant for possession can be straightaway sought against

persons occupying immovable property which is subject-matter

of decree by the decree-holder provided such persons who are

occupying the suit property are judgment-debtors or persons

claiming through the former. We are concerned with the

situation in which the appellant resisted the execution

proceedings on the ground that he was a stranger to the

decree and claimed an independent interest in the suit

immovable property possession of which was decreed in favour

of respondent no.1 decree-holder. The Nazir in his report

dated 28th April 1991 has noted that the warrant for

possession could not be executed on spot on account of the

resistance and obstruction offered by the appellant, amongst

others. Once that report was received by the Executing Court

respondent no.1 decree-holder naturally became alive to the

fact of such resistance on spot by the appellant, amongst

others. Thereafter when he moved the application on 6th May

1991 for issuance of fresh warrant for possession with the

help of police force though the application purported to be

under Order XXI Rule 35 it would strictly not fall within

that provision as the decree-holder wanted to bypass the

obstruction and resistance offered by a stranger to the

decree, namely the appellant who was not claiming any right,

title or interest through the judgment-debtor. Whether his

claim was right or wrong on merits is a different matter.

But once such resistance was offered by him the proper

procedure which was required to be followed by respondent

no.1 decree-holder was the one contemplated by Order XXI

Rule 97, CPC. The said provision reads as under:

"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 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."

On the undisputed facts on record it has, therefore, to

be held that because of the resistance or obstruction

offered by the appellant, amongst others, on 28th April 1991

the application moved by the respondent decree-holder on 6th

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May 1991 was necessarily to be one falling within the scope

and ambit of Order XXI Rule 97. It is pertinent to note that

the resistance and/or obstruction accordance with the

subsequent provisions contained in the said Order. We may in

this connection also refer to the Schedule to the CPC,

Appendix E which gives various forms for summons to be

issued to parties in execution proceedings especially form

no.40 which deals with `Summons to appear and answer charge

of obstructing execution of decree (0.21. R.97)'. The said

form reads as under:

No. 40

Summons To Appear And Answer Charge

Of

Obstructing Execution Of Decree

(0.21. R.97)

(Title)

Whereas, the decree-holder in the

above suit, has complained to this

Court that you have resisted (or

obstructed) the officer charged

with the execution of the warrant

for possession.:

You are hereby summoned to appear

in this Court on the ...... day of

.... 19......, at A.M., to answer

the said complaint.

Given under my hand and the seal of

the Court, this ........ day of 19

.......

Judge."

It is, therefore, clear that in an application under

Order XXI Rule 97 moved by a decree-holder who complains

about the resistance or obstruction offered by any person to

the decree-holder in his attempt at obtaining possession of

property and who wants such obstruction or resistance to be

removed which otherwise is an impediment in his way, a lis

arises between the decree-holder applicant under Order XXI

Rule 97 on the one hand and such obstructionist or resisting

party on the other, to whom summons has been issued by the

Court as per Form No.40. When such a lis arises, it has to

be adjudicated upon as enjoined by Order XXI Rule 97 sub-

rule (2). The procedure for adjudicating such a lis has to

be called out from the remaining succeeding Rules of Order

XXI. This directly takes us to the consideration of Order

XXI Rule 101 which reads as under:

"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 be 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."

Now it is obvious that such questions relating to the

right, title and interest in the property arising between

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the parties to any proceedings under Order XXI Rule 97 or

Rule 99 have to be adjudicated upon by following an

identical gamut of procedure by the Executing Court. The

said gamut of procedure is laid down by Order XXI Rule 98

which reads as under :

"98. Orders after adjudication. -

(1) Upon the determination of the

questions referred to in Rule 101,

the Court shall, in accordance with

such determination and subject to

the provisions of sub-rule (2),-

(a) make an order allowing the

appli cation 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 circums tances 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 judgment-debtor 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 judgment-

debtor, 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."

It is not time for us to consider Order XXI Rule 99

which reads as under:

"99. Dispossession by decree-holder

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 maya 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."

A conjoint reading of Order XXI Rules 97, 98, 99 and

101 projects the following picture:

(1) If a decree-holder is resisted or obstructed in

execution of the decree for possession with the result

that the decree for possession could not be executed in

the normal manner by obtaining warrant for possession

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under Order XXI Rule 35, then the decree-holder has to

move an application under Order XXI Rule 97 for removal

of such obstruction and after hearing the decree-holder

and the obstructionist the Court can pass appropriate

orders after adjudicating upon the controversy between

the parties as enjoined by Order XXI Rule 97 sub-rule

(2) read with Order XXI Rule 98. It is obvious that

after such adjudication if it is found that the

resistance or obstruction was occasioned without just

cause by the judgment-debtor or by some other person at

his instigation or on his behalf then such obstruction

or resistance would be removed as per Order XXI Rule 98

sub-rule (2) and the decree-holder would be permitted

to be put in possession. Even in such an eventuality

the order passed would be treated as a decree under

Order XXI Rule 101 and no separate suit would lie

against such order meaning thereby the only remedy

would be to prefer an appeal before the appropriate

appellate court against such deemed decree.

(2) If for any reason a stranger to the decree is already

dispossessed of the suit property relating to which he

claims any right, title or interest before his getting

any opportunity to resist or offer obstruction on spot

on account of his absence from the place or for any

other valid reason then his remedy would lie in filing

an application under Order XXI Rule 99, CPC claiming

that his dispossession was illegal and that possession

deserves to be restored to him. If such an application

is allowed after adjudication then as enjoined by Order

XXI Rule 98 sub-rule (1) CPC the Executing Court can

direct the stranger applicant under Order XXI Rule 99

to be put in possession of the property of if his

application is found to be substanceless it has to be

dismissed. Such an order passed by the Executing Court

disposing of the application one way or the other under

Order XXI Rule 98 sub-rule (1) would be deemed to be a

decree as laid down by Order XXI Rule 103 and would be

appealable before appropriate appellate forum. But no

separate suit would lie against such orders as clearly

enjoined by Order XXI Rule 101.

In short the aforesaid statutory provisions of Order

XXI lay down a complete code for resolving all disputes

pertaining to execution of 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 in only under Order XXI Rule 97 sub-rule (1)

and he cannot bypass such obstruction and insist on re-

issuance of warrant for possession under Order XXI Rule 35

with the help of police force, as that course would amount

to bypassing and circumventing the procedure laid down under

Order XXI Rule 97 in connection with removal of obstruction

of purported strangers to the decree. Once such an

obstruction is on the record of the Executing Court it is

difficult to appreciate how the Executing Court can tell

such obstructionist that he must first lose possession and

then only his remedy is to move an application under Order

XXI Rule 99, CPC and pray for restoration of possession. The

High Court by the impugned order and judgment has taken the

view that the only remedy available to a stranger to the

decree who claims any independent right, title or interest

in the decretal property is to go by Order XXI Rule 99. This

view of the High Court on the aforesaid statutory scheme is

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clearly unsustainable. It is easy to visualise that a

stranger to the decree who claims an independent right,

title and interest in the decretal property can offer his

resistance before getting actually dispossessed. He can

equally agitate his grievance and claim for adjudication of

his independent right, title and interest in the decretal

property even after losing possession as per Order XXI Rule

99. Order XXI Rule 97 deals with a stage which is prior to

the actual execution of the decree for possession wherein

the grievance of the obstructionist can be adjudicated upon

before actual delivery of possession to the decree-holder.

While Order XXI Rule 99 on the other hand deals with the

subsequent stage in the execution proceedings where a

stranger claiming any right, title and interest in the

decretal property might have got actually dispossessed and

claims restoration of possession on adjudication of his

independent right, title and interest dehors the interest of

the judgment-debtor. Both these types of enquiries in

connection with the right, title and interest of a stranger

to the decree are clearly contemplated by the aforesaid

scheme of Order XXI and it is not as if that such a stranger

to the decree can come in the picture only at the final

stage after losing the possession and not before it if he is

vigilant enough to raise his objection and obstruction

before the warrant for possession gets actually executed

against him. With respect the High Court has totally ignored

the scheme of Order XXI Rule 97 in this connection by taking

the view that only remedy of such stranger to the decree

lies under Order XXI Rule 99 and he has no locus standi to

get adjudication of his claim prior to the actual delivery

of possession to the decree-holder in the execution

proceedings. The view taken by the High Court in this

connection also results in patent breach of principles of

natural justice as the obstructionist, who alleges to have

any independent right, title and interest in the decretal

property and who is admittedly not a party to the decree

even though making a grievance right in time before the

warrant for execution is actually executed, would be told

off the gates and his grievance would not be considered or

heard or merits and he would be thrown off lock, stock and

barrel by use of police force by the decree-holder. That

would obviously result in irreparable injury to such

obstructionist whose grievance would go overboard without

being considered on merits and such obstructionist would be

condemned totally unheard. Such an order of the Executing

Court, therefore, would fail also on the ground of non-

compliance with basic principles of natural justice. On the

contrary the statutory scheme envisaged by Order XXI Rule

97, CPC as discussed earlier clearly guards against such a

pitfall and provides a statutory remedy both to the decree-

holder as well as to the obstructionist to have their

respective say in the matter and to get proper adjudication

before the Executing Court and it is that adjudication which

subject to the hierarchy of appeals would remain binding

between the parties to such proceedings and separate suit

would be barred with a view to seeing that multiplicity of

proceedings and parallel proceedings are avoided and the

gamut laid down by Order XXI Rules 97 and 103 would remain a

complete code and the sole remedy for the concerned parties

to have their grievances once and for all finally resolved

in execution proceedings themselves.

In this connection we may also profitably refer to a

judgment of a Bench of three learned of this Court in the

case of Bhanwar Lal v. Satyanarain and Another (195) 1 SCC

6. In that case the Bench consisting of K. Ramaswamy, S.C.

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Agrawal, and N. Venkatachala, JJ., Satyanarain had

obstructed to the delivery of possession of the suit

immovable property which was sought to be obtained in

execution by the appellant decree-holder. After such an

obstruction was offered by Satyanarain the decree-holder

moved an application under Order XXI Rule 35 for police

assistance to remove obstruction caused by Satyanarain. The

Executing Court directed the decree-holder to make an

application under Order XXI Rule 97. This Court took the

view that the very application under Order XXI Rule 35 sub-

rule (3) for police assistance for removal of obstruction

caused by Satyanarain had to be treated to be an application

under Order XXI Rule 97 and such an application was

maintainable and could not be said to be beyond limitation.

In this connection the following pertinent observations were

made by this Court:

"The crux of the question is

whether the application filed on

25-5-1979 by the appellant, though

purported to be under Order 21.

Rule 35(3) against Satyanarain, is

convertible to one under Order 21,

Rule 97. Order 21, Rule 35(3)

provides that:

"35(3) Where possession of any

building on 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.'

A reading of Order 21. Rule 35(3)

postulates that the person in

possession of the immovable

property to be delivered under the

decree must be per force bound by

the decree. Admittedly, Satyanarain

was not a judgment-debtor and that

therefore, he is not bound by the

decree unless he claims right,

title or interest through the

judgment-debtor, Ram Kishan. the

person resisting delivery of

possession. In other words the

resistor must claim derivate title

from the judgment-debtor. The court

gets power under Order 21, Rule 97

to remove such obstruction or

resistance and direct its officer

to put the decree-holder in

possession of the immovable

property after conducting enquiry

under Rule 97.

Order 21, Rule 97 provides thus:

`97. Resistance or obstruction to

possession of immovable property.-

(1) Where the holder of a decree

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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) 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.'

The procedure has been provided in

Rules 98 to 103. We are not, at

present, concerned with the

question relating to the procedure

to be followed and question to be

determined under Order 21, Rules 98

to 102. A reading of Order 21, Rule

97 CPC clearly envisages that "any

person" even including the

judgment-debtor irrespective

whether he claims derivative title

from the judgment-debtor or set up

his own right, title or interest

dehors the judgment-debtor and he

resists execution of a decree, then

the court in addition to the power

under Rule 35(3) has been empowered

to conduct an enquiry whether the

obstruction by that person in

obtaining possession of immovable

property was legal or not. The

decree-holder gets a right under

Rule 97 to make an application

against third parties to have his

obstruction removed and an enquiry

thereon could be done. Each

occasion of obstruction or

resistance furnishes a cause of

action to the decree-holder to make

an application for removal of the

obstruction or resistance by such

person.

When the appellant had made the

application on 25-5-1979 against

Satyanarain, in law it must be only

the application made under Order

21, Rule 97(1) of CPC. The

executing court, obviously, was in

error in directing to make a fresh

application. It is the duty of the

executing court to consider the

averments in the petition and

consider the scope of the

applicability of the relevant rule.

In technical ground the executing

court dismissed the second

application on limitation and also

the third application, on the

ground of res judicata which the

High Court has in the revisions now

upheld. The procedure is the

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handmaid of substantive justice but

in this case it has ruled the

roost."

In view of the aforesaid settled legal position,

therefore, and in the light of the statutory scheme

discussed by us earlier it must be held that respondent no.1

decree-holder's application dated 6th May 1991 praying for

issuance of warrant for delivery of possession with the aid

of armed force, was in substance for removal of obstruction

offered by the appellant and others under Order XXI Rule 97,

CPC and had to be adjudicated upon as enjoined by Order XXI

Rule 97 sub-rule (2) read with Order XXI Rule 101 and Order

XXI Rule 98. In this connection the Court had also to follow

the procedure laid down by Order XXI Rule 105 which enjoins

the Executing Court to which an application is made under

any of the foregoing Rules of the Order to fix a date of

hearing of the application. As the Executing Court refused

to adjudicate upon the obstruction and the claim of the

appellant who obstructed to the execution proceedings it had

clearly failed to exercise jurisdiction vested in it by law.

The High Court in revision also committed the same error by

taking the view that such an application was not maintained.

It is of course true as submitted by learned counsel for the

decree-holder that in paragraph 4 of the judgment under

appeal the High Court has noted that there was some

discrepancy about the Khasra Number. But these are passing

observations. On the contrary in the subsequent paragraphs

of the judgment the High Court has clearly held that such an

application by the objector was not maintainable and his

only remedy was to move an application under Order XXI Rule

99 after handing over possession and consideration of

objection to delivery of possession by a stranger to the

decree at any earlier stage was premature. It must,

therefore, be held that neither the Executing Court nor the

High Court in revision had considered the objection of the

appellant against execution or merits. Consequently the

impugned judgment of the High court as well as the order of

the Executing Court in Civil Execution Case No. 25 of 1990

dated 15th February 1996 are quashed and set aside and

proceedings are remanded to the Court of Munsif II, Munger

to re-decide the application of respondent no.1 decree-

holder dated 6th May 1991 by treating it to be one under

Order XXI Rule 97 for removal of obstruction of the

appellant and after hearing the decree-holder as well as the

appellant to adjudicate the claim of the appellant and to

pass appropriate orders under Order XXI Rule 97 sub-rule

(2), CPC read with Order XXI Rule 98, CPC as indicated in

earlier part of this judgment.

Before parting with this case we may mention one

apprehension voiced by learned counsel appearing for the

decree-holder. He submitted that the Nazir has noted in his

report dated 28th April 1991 that when he went to execute

the decree he was resisted on spot by Brahmdeo Chaudhary,

that is the present appellant, as well as by Sitaram

Chaudhary and Jago Chaudhary who are found to be brothers of

the appellant and some other persons and, therefore, these

other persons also would one by one come forward to further

obstruct the execution proceedings which would be

indefinitely delayed. This submission though prima facie

looking attractive on a closer scrutiny does not remain well

sustained. Even though the Nazir's report mentions the

obstructions offered by Sitaram Chaudhary, Jago Chaudhary,

Brahmdeo Chaudhary and others, only the appellant objected

to the order passed by the Executing Court on respondent

no.1's application dated 6th May 1991 for issuance of a

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fresh warrant for delivery of possession with the aid of

police force. Only he put forward his written objections on

22nd January 1996. Neither of his brothers, namely, Sitaram

Chaudhary or Jago Chaudhary nor anyone else filed any

objections to the said application for issuance of fresh

warrant for possession with the police aid. Therefore, it

must be held that the only objectionist to remain in the

field claiming to be a stranger having any right, title and

interest in the suit property is the appellant and no one

else. The others who might have resisted on spot on 28th

April 1991 must be treated to have given up their

obstructions and resistance subsequently and have gone out

of picture. It must, therefore, be held that only the

appellant is the sole surviving obstructionist whose claim

regarding the alleged independent right, title and interest

in the decretal property has to be adjudicated upon by the

Executing Court under Order XXI Rule 97 sub-rule (2), CPC

pursuant to the present order. The Executing Court shall not

entertain objection or obstruction from any other party or

person. It is also necessary to direct the Executing Court,

to which these proceedings are being remanded, to adjudicate

upon the claim of the appellant to the decretal property as

per the provisions of Order XXI Rule 97 sub-rule (2), CPC

read with Order XXI Rule 98 within a period of three months

from the receipt of the writ of the order at its end as the

decree is of 1988 and the execution proceedings now would be

pending for about nine years.

The appeal is accordingly allowed. There will be no

order as to costs in the facts and circumstances of the

case.