http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

CASE NO.:

Special Leave Petition (civil) 2461 of 1999

PETITIONER:

N.S.S.NARAYANA SARMA & ORS.

Vs.

RESPONDENT:

M/S.GOLDSTONE EXPORTS P. LTD. & ORS.

DATE OF JUDGMENT: 23/11/2001

BENCH:

D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

W I TH

Civil Appeal Nos.______________ of 2001

(@ SLP(C) Nos.2503-04/1999, 2523-2525/1999)

J U D G M E N T

D.P.MOHAPATRA, J.

Leave is granted in all the SLPs.

The judgment rendered by a Division Bench of the

Andhra Pradesh High Court on 10th November, 1998

disposing of a batch of appeals filed under Clause 15 of the

Letter Patent, against the judgment of a single Judge is

under challenge in these appeals. Since common questions

of fact and law were raised by the parties in all the cases the

High Court disposed of the appeals by a common judgment.

The dispute relates to a property extending over 196.20

guntas under Survey No.172 of Hydernagar village. The

contest is between two sets of transferees of the property,

while the appellants claim to be transferees of holders of

pattas issued in their favour by the Pygah Committee of

Nawab Khurshed Jah Pygah, the respondents trace their

title to transfers by some decree-holders in the suit. The

objections filed by the appellants under Order 21 Rule 99

read with Rule 101 of the Civil Procedure Code (for short

the CPC) having been dismissed by the High Court as non-

maintainable, the appellants are before this Court assailing

the judgment of the High Court.

The genesis of the proceedings leading to the present

cases shorn of unnecessary details, may be stated thus:

One Dildar Unnisa Begum filed OS No.41/1955 in the City

Civil Court, Hyderabad against the defendants for a decree

of partition of the suit properties which according to the

plaintiff were Matruka property of the late Nawab Khurshed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

Jah Pygah. The High Court transferred the suit to its file

and on such transfer the suit was re-numbered as

C.S.No.14 of 1958. A preliminary decree was passed in the

suit on 28th June, 1963 on the basis of the compromise

entered into between the parties. No appeal having been

filed against the preliminary decree it attained finality. The

subject matter of the present proceeding is included as Item

No.38 of Schedule IV of the plaint. Item No.38

corresponding to Survey No.172 of Hydernagar village to an

extent of 196 acres 25 guntas was allotted to plaintiff

no.2/defendants nos.27, 50, 51, 52, and 116 in the

preliminary decree. In pursuance of the preliminary decree

the High Court appointed a Commissioner for division of the

property in terms of the decree.

M/s.M.S.Cyrus Investments Ltd. is stated to

have purchased 50 shares of HEH Nizam who himself was

a purchaser of certain shares from the original decree-

holder and thus became defendant no.206 in the suit.

Subsequently, the said M/s.M.S.Cyrus Investments Ltd.

assigned its assets in favour of M/s.Goldstone Exports and

some others who are respondents herein. After the said

assignment M/s.Goldstone Exports and others filed

applications before the High Court for certain reliefs

including delivery of possession of the property of their

share and for mutation of their names in the revenue

records. A single Judge of the High Court allowed the

applications filed by M/s.Goldstone Exports and other

assignees for being impleaded as defendants in the suit.

Thereafter the applicants so impleaded as defendants in the

suit filed E.P.No.3/96 seeking delivery of possession. A

single Judge of the High Court by the order passed on 29th

March, 1996 ordered delivery of possession of the property

in favour of the applicants. The Bailiff appointed by the

court is stated to have delivered possession of the property

to the respondents.

The appellants tried to obstruct delivery of

possession of the property to the applicants. The gist of

their case was that the late Nawab Khurshed Jah Pygah

administration had granted pattas in favour of several

cultivators and supplementary sethwar was also issued,

wherein the names of the pattadars were recorded. Since

the supplementary sethwar had not been implemented the

lands were erroneously shown as government lands.

Subsequently, however the supplementary sethwar was

implemented and their names were recorded as transferees

of the property in the year 1980. Thereafter the pattadars

entered into an agreement of sale with SETWIN Employees

Housing Cooperative Society and Shri Satya Sai

Cooperative Housing Society Ltd. of which the appellants

are the members. Registered sale-deeds were also

executed in favour of the appellants to the extent of 85

acres of land. Pakka houses were constructed on the lands

transferred in favour of the appellants. Assessment of

property tax in respect of the houses has been made by the

Kukatpally Municipality.

Coming to know of the execution petition filed by the

respondents for delivery of possession before the District

Judge, Ranga Reddy District, some of the appellants filed

petitions under Order 21 Rule 97 read with Section 101 of

the CPC resisting the execution. The District Judge

dismissed the petitions holding that he was not the

Executing Court, he was merely implementing the orders

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

passed by the High Court and, therefore, could not entertain

such applications. The appellants approached the High

Court in appeal but were unsuccessful. Thereafter they filed

Civil Appeal Nos.5610-5611/1997 (Arising out of SLP

(C)Nos.4162-63/1997) and Civil Appeal Nos.5609 of 1997

(Arising out of SLP (C) No.23706 of 1996) and Civil Appeal

Nos.5612-14/1997 (Arising out of SLP (C) Nos.8787-8789 of

1997) before this Court which were disposed of by the order

dated 14.8.1997 wherein both the parties were directed to

approach the Executing Court and the Executing Court was

directed to decide the question of maintainability of the

applications under Order 21 Rule 99 CPC and also the

question of limitation, uninfluenced by any direction given

by the High Court. The High Court was directed to go into

all the questions arising in the case and finally decide the

controversies as it thinks proper and in accordance with law.

That is how the appeals were placed before the Division

Bench which disposed them of by the judgment under

challenge.

From the facts narrated in the impugned judgment it is

clear that the appellants claimed to have become absolute

owners of the land on the basis of their purchase of the

same from the pattadars much prior to the Andhra Pradesh

(Telangana Area) Abolition of Jagirdar Regulation Act, 1958

came into force. It was the further case of the appellants

that they were in possession of the lands and had

constructed pucca houses thereon. They contended that

their right, title and interest in the property could not have

been affected by the preliminary decree passed in

C.S.No.14 of 1958 in which they were not parties.

The relevant provisions of the CPC material for the

case are Rules 97 to 103 of Order 21 of the Code. Rule 97

provides that :(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. Such an

application is to be dealt with by the Court in accordance

with the provisions contained in the Code.

Under Rule 98 provision is made regarding the order

to be passed by the Court in accordance with the

determination either making it to be allowing the application

and directing that the applicant be put into the possession of

the property or dismissing the application or passing such

other order as, in the circumstances of the case, it may

deem fit.

Under Rule 99(1) it is laid down 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 may make an application to the Court

complaining of such dispossession. Under sub-rule (2)

thereof it is provided that where any such application is

made, the Court shall proceed to adjudicate upon the

application in accordance with the provisions contained in

the Code.

Under Rule 100 it is laid down that : Order to be

passed upon application complaining of dispossession

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

Upon the determination of the questions referred to in Rule

101, the Court shall, in accordance with such

determination

(a) make an order allowing the application 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

circumstances of the case, it may deem fit.

Rule 101 contains provisions regarding questions to

be determined. It reads as follows :

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 by 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.

Under Rule 102 it is provided Nothing in Rules 98

and 100 shall 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 or to the dispossession of any person.

Under Rule 103 any order made by the Court

upon adjudication under Rule 98 or Rule 100 shall have the

same force and be subject to the same conditions as to an

appeal or otherwise as if it were a decree.

Provision is made in the Civil Procedure Code for

delivery of possession of immovable property in execution of

a decree and matters relating thereto. In Order 21 Rule 35

provisions are made empowering the executing court to

deliver possession of the property to the decree holder if

necessary, by removing any person bound by the decree

who refuses to vacate the property. In Rule 36 provision is

made for delivery of formal or symbolical possession of the

property in occupancy of a tenant or other person entitled to

occupy the same and not bound by the decree to relinquish

such occupancy. Rules 97 to 101 of Order 21 contain the

provisions enabling the executing court to deal with a

situation when a decree holder entitled to possession of the

property encounters obstruction from any person. From

the provisions in these rules which have been quoted

earlier the scheme is clear that the legislature has vested

wide powers in the executing court to deal with all issues

relating to such matters. It is a general impression

prevailing amongst the litigant public that difficulties of a

litigant are by no means over on his getting a decree for

immovable property in his favour. Indeed, his difficulties in

real and practical sense, arise after getting the decree.

Presumably, to tackle such a situation and to allay the

apprehension in the minds of litigant public that it takes

years and years for the decree holder to enjoy fruits of the

decree, the legislature made drastic amendments in

provisions in the aforementioned Rules, particularly, the

provision in Rule 101 in which it is categorically declared

that all questions including questions relating to right, title or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

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 by 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. On a fair reading of the rule it is manifest that

the legislature has enacted the provision with a view to

remove, as far as possible, technical objections to an

application filed by the aggrieved party whether he is the

decree holder or any other person in possession of the

immovable property under execution and has vested the

power in the executing court to deal with all questions

arising in the matter irrespective of whether the Court

otherwise has jurisdiction to entertain a dispute of the

nature. This clear statutory mandate and the object and

purpose of the provisions should not be lost sight of by the

Courts seized of an execution proceeding. The Court

cannot shirk its responsibility by skirting the relevant issues

arising in the case.

(Emphasis supplied)

Interpreting the provisions in these rules, a three

Judge bench of this Court in the case of Silverline Forum

Pvt. Ltd. vs. Rajiv Trust and Anr., (1998) 3 SCC 723 held :

It is true that Rule 99 of Order 21 is not

available to any person until he is

dispossessed of immovable property by

the decree-holder. Rule 101 stipulates

that all questions arising between the

parties to a proceeding on an

application under Rule 97 or Rule 99

shall be determined by the executing

court, if such questions are relevant to

the adjudication of the application. A

third party to the decree who offers

resistance would thus fall within the

ambit of Rule 101 if an adjudication is

warranted as a consequence of the

resistance or obstruction made by him

to the execution of the decree. No

doubt if the resistance was made by a

transferee pendentelite of the

judgement-debtor, the scope of the

adjudication would be shrunk to the

limited question whether he is such a

transferee and on a finding in the

affirmative regarding that point the

execution court has to hold that he has

no right to resist in view of the clear

language contained in Rule 102.

Exclusion of such a transferee from

raising further contentions is based on

the salutary principle adumbrated in

Section 52 of the Transfer of Property

Act.

When a decree-holder complains

of resistance to the execution of a

decree it is incumbent on the execution

court to adjudicate upon it. But while

making adjudication, the court is obliged

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

to determine only such question as may

be arising between the parties to a

proceeding on such complaint and that

such questions must be relevant to the

adjudication of the complaint.

The words all questions arising

between the parties to a proceeding on

an application under Rule 97 would

envelop only such questions as would

legally arise for determination between

those parties. In other words, the court

is not obliged to determine a question

merely because of the resister raised it.

The questions which the executing court

is obliged to determine under Rule 101,

must possess two adjuncts. First is that

such questions should have legally

arisen between the parties, and the

second is, such questions must be

relevant for consideration and

determination between the parties, e.g.,

if the obstructor admits that he is a

transferee pendente lite it is not

necessary to determine a question

raised by him that he was unaware of

the litigation when he purchased the

property. Similarly, a third party, who

questions the validity of a transfer made

by a decree-holder to an assignee,

cannot claim that the question regarding

its validity should be decided during

execution proceedings. Hence, it is

necessary that the questions raised by

the resister or the obstructor must

legally arise between him and the

decree-holder. In the adjudication

process envisaged in Order 21 Rule

97(2) of the Code, the execution court

can decide whether the question raised

by a resister or obstructor legally arises

between the parties. An answer to the

said question also would be the result of

the adjudication contemplated in the

sub-section.

(Emphasis supplied)

Tracing the change in the statutory provisions brought

about by the amendment of the CPC this Court in the case

of Shreenath & Anr. Vs. Rajesh & Ors., (1998) 4 SCC 543,

made the following observations :

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

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 97

conceives of resistance of 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 the judgment-debtor or

claiming independent right of his own

including a 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 the

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 obstruction by a

stranger is adjudicated and finally 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.

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

the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

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 the tenant is in actual

possession. Order 21 Rule 97, as

aforesaid, conceives of cases where

delivery of possession to the 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 a stranger.

Xxx xxx xxx

So far sub-clause (1) of Rule 97

the provision is the same but after the

1976 Amendment all disputes relating to

the property made under Rules 97 and

99 are 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 a 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-holders 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 persons 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 the own, if resists delivery of

possession to the decree-holder, the

dispute and his claim has to be decided

after the 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

case 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 was 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.

We find that both either under the

old law or the present law, the right of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

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.

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

the 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 a 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 a

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 Usha Jain ((AIR 1980 MP

146) correctly decided the law.

(Emphasis supplied)

This Court in the case of Anwarbi vs. Pramod

D.A.Joshi & Ors., 2000 (10) SCC 405, interpreting the

provisions in Order 21 Rules 97 and 101 clarified the

position that the obstructionist in possession can only be

dispossessed in accordance with law person in

possession of immovable property claiming legal entitlement

thereto and obstructing execution of decree for possession

may not be dispossessed till his rights are adjudicated in

appropriate proceedings. The decree-holder cannot take

possession unless such proceedings terminate in his favour.

This Court further held :

Learned counsel for the appellant has

contended that the appellant is being

repeatedly threatened with

dispossession. We, therefore make it

clear that the possession of the

appellant cannot be disturbed except in

accordance with law; and that in view of

the obstruction raised by her to the

execution of the said decree, the rights

of the obstructionist will have to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

decided in appropriate proceedings, in

accordance with law. Unless and until

such proceedings terminate in favour of

the decree-holder, the decree-holder

cannot take possession and the

appellant is entitled to retain

possession.

From the principles laid down in the decisions

noted above, the position is manifest that when any person

claiming title to the property in his possession obstructing

the attempt by the decree-holder to dispossess him from the

said property the executing Court is competent to consider

all questions raised by the persons offering obstruction

against execution of the decree and pass appropriate order

which under the provisions of Order 21 Rule 103 is to be

treated as a decree. From the averments made in the

petition filed by the appellants before the executing Court it

is clear that they are claiming independent right to the

property from which they are sought to be evicted in

execution of the decree. It is the further case of the

appellants that the right in the property had vested in them

much prior to filing of the present suit the decree of which is

under execution. It is to be kept in mind that the suit as

initially filed was a suit for partition simplicitor. In such a

suit the High Court in course of execution proceedings

ordered delivery of possession. Whether such a direction

given in the suit is valid or not is a separate matter. We

need not say anything more on the question at present. As

noted earlier, the learned single Judge and the Division

Bench dismissed the petition filed by the appellants as non-

maintainable without entering into the merits of the case.

The Division Bench appears to have taken the view that

since the appellants are claiming the property through the

Paigah Committee or the State Government, who are

parties in the suit, they are bound by the decree. The view

taken by the Division Bench is unsustainable and does not

at all stand scrutiny under law. It amounts to, if we may put it

that way, begging the question raised in the petition filed by

the appellants. At the cost of repetition, it may be stated

here that the appellants are claiming independent title to the

property as the transferees from the pattadars whose land

did not vest in the State Government under the provisions of

Andhra Pradesh (Telangana Area) Abolition of Jagirdar

Regulation Act, 1958. On a perusal of the orders passed

by the single Judge as well as Division Bench of the High

Court, we are constrained to observe that the said orders

are based on a complete mis-reading of the case of the

appellants and mis-conception of the legal position relevant

to the matter. Considering the facts and circumstances of

the case, we are of the view that the matter should be

remitted to the High Court for fresh consideration of the

petitions filed by the appellants by a single Judge at the first

instance.

Accordingly, the appeals are allowed. The order

dated 28th December, 1995 of the learned single Judge in

C.S.No.14 of 1958 which was confirmed by the Division

Bench in the order dated 10th November, 1998 in

O.S.A.Nos.10,11,18,20/1996 & 35, 36 and 37 of 98

(appealed from) is set aside and the matter is remitted to the

High Court for fresh consideration of the petitions filed by

the appellants and disposal in accordance with law. The

matters shall be placed before a single Judge of the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

Court other than the learned Judge who passed the order,

at the first instance. The contesting respondents shall pay

to the appellants a sum of a Rs.10,000/- as costs of these

appeals.

...J

(D.P.MOHAPATRA)

..J.

(SHIVARAJ V.PATIL)

November 23, 2001