Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9699 OF 2014

[Arising out of S.L.P. (Civil) No.33699 of 2011]

Sameer Singh and Another ... Appellants

Versus

Abdul Rab and Others ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The Universal Construction Company, the respondent

No. 3 herein, instituted Civil Suit No. 480 of 1971 in the High

Court of Calcutta invoking its original civil jurisdiction for

realization of a sum of Rs.2,15,289.28 paise from the Engineers

Syndicate (India) Private Limited, the 4

th

respondent herein, and

an ex parte decree was passed in the suit. After obtaining the

Page 2 decree, respondent No. 3 assigned the same in favour of Abdul

Rab, respondent No. 1 herein, on 20

th

May, 2005. After the

deed of assignment was given the formal shape, the 1

st

respondent moved the High Court of Calcutta and got the said

decree transferred to the Court of Sub Judge-I, Jamshedpur for

execution by way of attachment and sale of immovable

properties of the 4

th

respondent situated within the jurisdiction

of the executing Court. Thereafter, the 1

st

respondent filed an

execution case against the 4

th

respondent. A schedule of

property was attached to the execution petition.

3. As the factual matrix would unfurl, the executing court

after receipt of the decree on 23.8.2006 issued notice to the 4

th

respondent by registered post and when the service was not

effected, mode of publication was taken recourse to for

appearance of the judgment-debtor. Eventually, the execution

case was fixed for ex parte hearing on 9.3.2007 on the petition

of the assignee-decree-holder. After following the procedure,

the scheduled property was put up for sale by way of auction

and ultimately Abdul Rafai, respondent No. 2, purchased the

property and pursuant to the order of the Court took over

possession of the said immovable property.

2

Page 3 4. As the factual narration would further undrape, at the

said juncture, the present appellants filed an application under

Order XXI, Rules 97, 99 and 101 of the Code of Civil Procedure

(C.P.C.) contending, inter alia, that the disputed property

originally belonged to the 4

th

respondent who had borrowed a

sum of Rs.14,571/- from his deceased father, Gopal Singh, by

depositing the sale deeds of the said property on 18.2.1971 at

Calcutta and had delivered possession of the said property to

Gopal Singh on 19.2.1971 in lieu of interest of said borrowed

amount. When he failed to pay the borrowed sum, the 4

th

respondent agreed to transfer the said property for a

consideration of Rs.25,000/- to Gopal Singh after adjusting the

borrowed amount i.e. Rs.14,571/-. Regard being had to the

said arrangement, Gopal Singh had paid the balance amount of

Rs.10,429/- and accordingly an agreement for sale was

executed. When the 4

th

respondent did not honour his part of

the contract, Gopal Singh instituted Title Suit No. 43 of 1974 in

the Court of Sub Judge-I, Jamshedpur against the 4

th

respondent and eventually the said suit was decreed by the

Second Additional Sub Judge-I on 14.5.1977. Thereafter, a

case was filed and in pursuance of the decree a sale deed was

3

Page 4 executed on 10.10.1982 in favour of the father of the appellants

through Court and he was put in possession through Nazir of

the Civil Court in respect of the property in question, and after

the demise of Gopal Singh, the appellants, being sons, inherited

the said property and remained in possession having right, title

and interest till 27.4.2008 when all of a sudden, respondent No.

2 through the help of Nazir took delivery of the property after

dispossessing the appellants therefrom. On an inquiry being

made, they came to know under what circumstances they had

been dispossessed by the Nazir. The application further

asserted that the schedule of property which had been

appended to Execution Case No. 24 of 2006 had been

deliberately added though the 4

th

respondent had no concern

with the same. It was also put forth that an order of

attachment was published in a local daily ‘Uditwani’ dated

23.10.1982 in respect of the scheduled property by the High

Court of Calcutta in Suit No. 480 of 1971 and the father of the

appellants coming to know of the same had filed an objection

before the High Court which after considering the objection and

taking note of the right, title and interest of the father of the

appellants had released the said property from attachment but

4

Page 5 the 1

st

respondent by suppressing all the facts got the said

schedule of property attached and put the same in auction and

respondent No. 2 who was set up by the respondent No.1

became the purchaser of the property. In essence, it had been

pleaded that respondent Nos. 1 and 2 had colluded to put the

property to auction which did not belong to the respondent No.

4 and was not meant for attachment and sale, for it had been

already released by the High Court of Calcutta and, in any case,

the respondent No. 4 had no concern with the said property. In

the application it was prayed that the appellants, the applicants

in the court below, should be put in possession of the

scheduled property and the respondents be restrained from

changing the nature and character of the property till the

adjudication of the application.

5. The said application was resisted by respondent Nos. 1

and 2, the opposite parties No. 1 and 2 before the executing

court, on many a ground and basically reasseverating the facts

how the decree had been passed by the High Court of Calcutta

and how there had been a deed of assignment and further the

fairness of procedure adopted in putting the property to

auction and the eventual sale.

5

Page 6 6. The executing court framed two issues which read as

follows:-

“I. Whether the transferee executing court has

jurisdiction to adjudicate the present petition

filed by the applicants under order XXI rules

97, 99 and 101 C.P.C.?

II. Whether the applicants are entitled to get as

relief in claim in their application?”

7. The executing court noted the submissions of both the

parties, referred to the order passed by the High Court of

Calcutta transferring the decree for execution, adverted to the

provisions under Sections 39 to 42 of C.P.C., placed reliance on

certain authorities as regards the limitation on the powers of

the transferee court under Section 42 of C.P.C., recorded the

fact that it had already dismissed the execution case to the full

satisfaction of the decree-holder on 19.12.2008 and informed

the same to the Registrar of the High Court of Calcutta, and

eventually came to hold that it had no jurisdiction to reopen

and discuss the matter pertaining to the title of the parties in

execution case at the instance of a third party. In that

backdrop, it observed that the executing court had become

functus officio and could not entertain the application.

Adverting to the second issue, the executing court noted the

6

Page 7 contentions and referred to the authorities earlier cited but

ultimately opined that as a finding had been recorded to the

effect that the transferee-executing court had no jurisdiction to

entertain the petition, regard being had to the fact that the

decree had been executed to the full satisfaction and an

intimation had been sent to the Registrar of the Calcutta High

Court, the controversy raised could not be dealt with and no

relief could be granted.

8. The aforesaid order came to be assailed before the High

Court in W.P.C. No. 348 of 2011 under Article 227 of the

Constitution of India. A preliminary objection was raised on

behalf of the 1

st

respondent that an order passed under Order

XXI, Rule 98 to 100 of C.P.C. is a decree as per the provisions

contained under Order XXI, Rule 103 of C.P.C. and, therefore,

an appeal would lie and the writ petition was not maintainable.

The preliminary objection was resisted by proponing a

contention that only those orders which adjudicate the dispute

between the parties would be treated as decree but as in the

case at hand, the Court had not decided the lis in question as it

had expressed an opinion that it had no jurisdiction after

having become functus officio, an appeal would not lie.

7

Page 8 9. The learned Single Judge accepted the preliminary

objection on the foundation that dispute between parties

regarding jurisdiction of executing court could be determined

under Order XXI, Rule 100 of C.P.C. and that when a decision

had been rendered on that score it would be a deemed decree

under Order XXI, Rule 103 of C.P.C. and hence, the writ

petition was not maintainable. Expression of aforesaid view

entailed dismissal of the writ petition. Hence, the present

appeal by special leave.

10.We have heard Mr. Saurabh S. Sinha, learned counsel

for the appellants and Mr. Jayesh Gaurav, learned counsel for

the respondents.

11.Assailing the impugned order it is contended by Mr.

Sinha that the learned Single Judge has failed to appreciate the

language employed in Order XXI, Rules 97 to 103 which

commands the executing court to adjudicate the controversy

pertaining to all the aspects and, therefore, when the executing

Court has only opined that it has become functus officio, the

said order cannot be treated as a decree. It is urged by him

that the said order tantamounts to refusal of exercise of

8

Page 9 jurisdiction duly vested in a Court and, therefore, such an error

has to be rectified in exercise of the power of superintendence

by the High Court under Article 227 of the Constitution of

India. It is his further submission that the view expressed by

the High Court is fallacious as far as its understanding of the

ratio of the decision in Babulal v. Raj Kumar and Others

1

. To

pyramid the submission that there has to be an adjudication as

warranted in law, learned counsel has placed reliance on Ghasi

Ram and Others v. Chait Ram Saini and others

2

and Ram

Kumar Tiwari and Others v. Deenanath and Others

3

.

12.Mr. Jayesh Gaurav, learned counsel appearing for the

respondents in support of the order passed by the High Court

has contended that when the executing court had clearly

expressed the view that it has no jurisdiction to embark upon the

issues as required to be gone into under Order XXI, Rules 97 to

103 of C.P.C., there was no necessity to proceed further and it

would be a travesty of justice if it is construed that when there

has been no adjudication of an application on behalf of a third

party it would not be a decree. It is canvassed by him that

adjudication does not necessarily mean to record evidence and

1

(1996) 3 SCC 154

2

(1998) 6 SCC 200

3

AIR 2002 Chhattisgarh 1

9

Page 10 deal with the issue of right, title and interest to make the order a

deemed decree as stipulated under Order XXI, Rule 103. It is

urged by him that when finality is given to the objection it

assumes the character of a decree as envisaged under Order XXI,

Rule 103 and, therefore, the reasons ascribed by the High Court

cannot be faulted. In support of his contention, learned counsel

has commended us to the authority in S. Rajeswari v. S.N.

Kulasekaran and Others

4

.

13. To appreciate the submissions raised at the Bar, it is

necessary to appreciate the whole gamut of provisions contained

in Order XXI, Rules 97 to 103 of CPC and the fundamental

objects behind the same. Rule 97 deals with resistance or

obstruction to possession by the holder of a decree for

possession or the purchaser of any such property sold in

execution of a decree. It empowers such a person to file an

application to the Court complaining of such resistance or

obstruction and requires the Court under sub-rule (2) to

adjudicate upon the application in accordance with the

provisions provided therein. Rule 99 deals with dispossession

by decree-holder or purchaser. It stipulates that where any

person other than the judgment-debtor is dispossessed of

4

(2006) 4 SCC 412

1

Page 11 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. The

Court is obliged to adjudicate such an application. Thus this

rule, as is manifest, includes any person other than the

judgment-debtor. Rule 101 deals with the questions to be

determined. It provides that 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

an application and not by a separate suit and for the said

purpose, the executing court has been conferred the jurisdiction

to decide the same. Rule 100 deals with orders to be passed

upon application complaining of dispossession. It is apt to

reproduce the said rule:-

“Rule 100. Order to be passed upon

application complaining of dispossession. -

Upon the determination of the questions

referred 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

1

Page 12 into possession of the property or

dismissing the application; or

(b)pass such order as, in the

circumstances of the case, it may deem

fit.”

14.Rule 98 deals with orders after adjudication. Sub-rule

(1) provides that upon the determination of questions referred

to in Rule 101, the Court in accordance with determination and

subject to provisions of sub-rule (2) therein make an order

allowing the application and directing that the applicant be put

in possession of the property or dismissing the application or

pass such other order, as in the circumstances of the case it

may deem fit. As far as sub-rule (2) is concerned, the same is

not necessary to be taken note of for the purposes of present

case. Rule 103 which is significant reads as follows:-

“Rule 103. Orders to be treated as decrees.-

Where any application has been adjudicated

upon under Rule 98 or Rule 100, the order

made thereon shall have the same force and be

subject to the same conditions as to an appeal

or otherwise as if it were a decree.”

15.The submission of the learned counsel for the appellants

is that if the scheme underlying the said Rules is appositely

appreciated, it is clear as crystal that the legislature in order to

avoid multiplicity of proceedings has empowered the executing

1

Page 13 court to conduct necessary enquiry and adjudicate by

permitting the parties to adduce evidence, both oral and

documentary, and to determine the right, title and interest of

the parties and, therefore, such an order has been given the

status of a decree. As has been put forth by him, a proceeding

in terms of Rule 97 or Rule 99 is in the nature of a suit and the

adjudication is similar to that of a suit and when in the case at

hand, the Court has declined to embark upon any enquiry by

calling for reply, recording evidence and appropriately

adjudicating the controversy, the order passed cannot be

regarded under Rule 103 of Order XXI as a decree. In this

context, the authorities that have been commended to us need

to be carefully noticed.

16. In Noorduddin v. Dr. K.L. Anand

5

, the executing court

had rejected the application of the appellant therein on the

ground that the High Court had already adjudicated the lis.

Analysing the language employed in Rules 97, 98 and 100 to

104, the Court held:-

“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

5

(1995) 1 SCC 242

1

Page 14 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 to 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

Amendment 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 appears to be to

put an end 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

execution.”

Elucidating further, the Court opined that adjudication

before execution is an efficacious remedy to prevent fraud,

oppression, abuse of the process of the court or miscarriage of

justice. The object of law is to meet out justice and, therefore,

adjudication under Order XXI, Rules 98, 100 and 101 and its

successive rules is sine qua non to a finality of the adjudication

of the right, title or interest in the immovable property under

execution.

1

Page 15 17.In Babulal (supra), the appellant apprehending that it

would be dispossessed in an execution proceeding had filed an

application based on possessory title and obtained interim

injunction. He had also filed an application stating, inter alia,

that he should not be dispossessed. His objection was

overruled by the executing court holding that since he had not

been dispossessed, an application under Order XXI, Rule 98

was not maintainable. The said view was affirmed by the High

Court in Civil Revision Petition. The Court while interpreting

the Order XXI, Rules 98 to 102 referred to the decision in

Bhanwar Lal v. Satyanarain and Another

6

and opined that

it is clear that an adjudication is required to be conducted

under Order XXI, Rule 98 before removal of the obstruction

caused by the objector or the appellant and a finding is

required to be recorded in that behalf. The Court ruled that the

order is treated as a decree under Order XXI, Rule 103 and it is

subject to an appeal. It has been observed in the said case that

prior to 1976, the order was subject to suit, but under the

amended Code, right of suit under Order XXI, Rule 63 of old

Code has been taken away, and the determination of the

question of the right, title or interest of the objector in the

6

(1995) 1 SCC 6

1

Page 16 immovable property under execution needs to be adjudicated

under Order XXI, Rule 98 which is an order and is a decree

under Order XXI, Rule 103 for the purpose of appeal subject to

the same conditions as to an appeal or otherwise as if it were a

decree. The Court further opined that the procedure prescribed

is a complete code in itself and, therefore, the executing court is

required to determine the question.

18.In Ghasi Ram and Others (supra) while making a

distinction between the provisions prior to the amendment

brought in 1976 in CPC and the situation after the amendment,

a two-Judge Bench observed thus:-

“The position has changed after amendment of the

Code of Civil Procedure by the Amendment Act of

1976. Now, under the amended provisions, all

questions, including right, title, interests in the

property arising between the parties to the

proceedings under Rule 97, have to be adjudicated

by the executing court itself and not left to be

decided by way of a fresh suit.”

19.In the case of S. Rajeswari (supra), the appellant was

one of the persons who had obstructed the execution of a

decree obtained by the 1

st

respondent therein and had filed an

application under Section 151 of CPC which was rejected by the

executing court on the ground that it was not maintainable.

1

Page 17 Being grieved by the said order he preferred a revision petition

which was allowed by the High Court. The Court treated the

application preferred under Section 151 of C.P.C. to be one

under Order XXI, Rule 97 because the executing court

proceeded to record evidence and thereupon adjudicated the

matter. The evidence of the decree-holder was considered and a

conclusion was arrived at that the identity of plot in question

had not been established and thereby the plaintiff was disabled

from executing the decree for possession of the land. A

contention was raised before this Court that the High Court had

erred in entertaining a revision petition under Section 115,

C.P.C., for the order was a decree under Order XXI, Rule 103 of

C.P.C. and hence, an appeal lay. The said contention was

accepted by this Court.

20.At this juncture, we may refer with profit to the

pronouncement in Brahmdeo Chaudhary v. Rishikesh

Prasad Jaiswal and another

7

wherein a two-Judge Bench

scanning the anatomy of the rules came to hold 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

7

AIR 1997 SC 856

1

Page 18 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.”

21.The aforesaid authorities clearly spell out that the court

has the authority to adjudicate all the questions pertaining to

right, title or interest in the property arising between the

parties. It also includes the claim of a stranger who

apprehends dispossession or has already been dispossessed

from the immovable property. The self-contained Code, as has

been emphasised by this Court, enjoins the executing court to

1

Page 19 adjudicate the lis and the purpose is to avoid multiplicity of

proceedings. It is also so because prior to 1976 amendment

the grievance was required to be agitated by filing a suit but

after the amendment the entire enquiry has to be conducted by

the executing court. Order XXI, Rule 101 provides for the

determination of necessary issues. Rule 103 clearly stipulates

that when an application is adjudicated upon under Rule 98 or

Rule 100 the said order shall have the same force as if it were

a decree. Thus, it is a deemed decree. If a Court declines to

adjudicate on the ground that it does not have jurisdiction, the

said order cannot earn the status of a decree. If an executing

court only expresses its inability to adjudicate by stating that it

lacks jurisdiction, then the status of the order has to be

different. In the instant case the executing court has

expressed an opinion that it has become functus officio and

hence, it cannot initiate or launch any enquiry. The appellants

had invoked the jurisdiction of the High Court under Article

227 of the Constitution assailing the order passed by the

executing court on the foundation that it had failed to exercise

the jurisdiction vested in it. The appellants had approached

1

Page 20 the High Court as per the dictum laid down by this Court in

Surya Dev Rai v. Ram Chander Rai and others

8

.

22.Whether the executing court, in the obtaining

circumstances, has correctly expressed the view that it has

become functus officio or not and thereby it has jurisdiction or

not, fundamentally pertains to rectification of a jurisdictional

error. It is so as there has been no adjudication. If a

subordinate court exercises its jurisdiction not vested in it by

law or fails to exercise the jurisdiction so vested, the said order

under Section 115 of the Code is revisable as has been held in

Joy Chand Lal Babu v. Kamalaksha Chaudhury and

others

9

. The same principle has been reiterated in Keshardeo

Chamria v. Radha Kissan Chamria and others

10

and

Chaube Jagdish Prasad and another v. Ganga Prasad

Chaturvedi

11

. Needless to emphasise, the said principle is

well-settled. After the amendment of Section 115, C.P.C. w.e.f.

1.7.2002, the said power is exercised under Article 227 of the

Constitution as per the principle laid down in Surya Dev Rai

(supra). Had the executing court apart from expressing the

view that it had become functus officio had adjudicated the

8

(2003) 6 SCC 675

9

AIR 1949 PC 239

10

AIR 1953 SC 23

11

AIR 1959 SC 492

2

Page 21 issues on merits, the question would have been different, for in

that event there would have been an adjudication.

23.In view of the forgoing analysis, we conclude and hold

that the High Court has fallen into error by opining that the

decision rendered by the executing court is a decree and,

therefore, an appeal should have been filed, and resultantly

allow the appeal and set aside the impugned order. The High

Court shall decide the matter as necessary under Article 227 of

the Constitution of India. As a long span of time has expired

we would request the High Court to dispose of the matter

within a period of three months. There shall be no order as to

costs.

.............................J.

[Dipak Misra]

.............................J.

[V. Gopala Gowda]

New Delhi;

October 14, 2014

2