Execution
Querist :
Anonymous
(Querist) 30 October 2011
This query is : Resolved
Can an obstructor plead that the execution petition is time barred in an application filed by the Judgment debtor/ purchaser under Order 21 Rule 97 for removal of obstruction
Nadeem Qureshi
(Expert) 31 October 2011
order 21 rule 97 says
1) where the holder of a decree for the possession of immovable property of 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 accordence with the provisions herein contained.
in patna
3) the provision of section 5 Limitation act shall apply to applications under this rule.
prabhakar singh
(Expert) 31 October 2011
: AIR1995SC358,
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 3651 of 1990.
Decided On: 04.10.1994
Appellants:Bhanwar Lal
Vs.
Respondent: Satyanarain and another
Hon'ble Judges: K. Ramaswamy, S.C. Agrawal and N. Venkatachala, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: U.N. Bachawat, H.M. Singh,Adv
For Respondents/Defendant: R.K. Maheshwari and Vineet Maheshwari, Advs.
Subject: Civil
Subject: Limitation
Acts/Rules/Orders:
Civil Procedure Code (CPC) - Order 21 - Rules 35(3), 97(1) and 98 to 103; Indian Limitation Act, 1963 -
Schedule - Article 129
Prior History:
From the Judgment and Order dated 362/88 of the Rajasthan High Court in S.B.C.R. No. 352 of 1983.
Case Note:
Civil - execution - Order 21 Rules 35 and 97 of CPC, 1908 - matter related to delivery of possession
of immovable property - Order 21 Rule 35 (3) postulates that person in possession of immovable
property to be delivered under decree must be per force bound by decree - person resisting
delivery of possession must be bound by decree for possession - Courts empowered under Order
21 Rule 97 to remove such obstruction or resistance and direct its officer to put decree-holder in
possession of immovable property after conducting enquiry under Order 21 Rule 97.
JUDGMENT
1. The appellant had obtained a decree in Second Appeal No. 175/71 from the High Court of Rajasthan
on March 21,1979 of ejectment of Ram Kishan, mesne profits till date of possession and also arrears of
rent. That decree had become final. Thereafter, the appellant filed an execution application under Order
21 Rule 35(3) of the CPC, for short the CPC, on May 24, 1979. Thereafter, when one Satyanarain, the
first respondent in this appeal had obstructed delivery of the possession, on the next day, namely, May
25,1979, he made an application under Order 21, Rule 35(3) for police assistance to remove the
obstruction caused by Satyanarain. The Court directed the appellant to make an application under Order
21, Rule 97 pursuant to which the appellant made second application on July 18, 1979 under Order 21
Rule 97 CPC for removal of obstruction caused by Satyanarain. The District Munsif, Executing Court, on
January 12, 1981, dismissed that application as being barred by limitation under Article 129 of the
Schedule to the Indian Limitation Act, 1963. On the even day, he filed a third application under Order 21
Rule 97 CPC which was dismissed on February 20, 1982 as being barred by res judicata. On an appealfiled by the appellant, the Civil Judge, Bikaner, by his Order dated May 19, 1983, directed removal of the
obstruction holding that the third application was not precluded to be filed by the appellant. The High
Court in Civil Revision No. 352 of 1983 filed by Satyanarain in the impugned order dated February 3,
1987 set aside the order of the appellate court and confirmed that of the Executing Court. On further
review, the High Court confirmed its earlier order. Thus, this appeal by special leave against both the
orders.
2. The crux of the question is whether the application filed on May 25, 1979 by the appellant, though
purported to be under Order 21, Rule 35(3) against Satyanarain, is convertible to be 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.
3. 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, Ramkrishan. The person resisting delivery of possession must be bound by
the decree for 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 for
the possession of immovable property of 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.
4. The procedure has been provided in Rules 98 to 103. We are not, at present, concerned 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 de hors 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 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.
5. When the appellant had made the application on May 25, 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. On 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
handmaid of substantive justice but in this case it has rule the roost.6. In the above view we have taken, the High Court has committed grievous error of jurisdiction and also
patent illegality in treating the application filed by the appellant as barred by limitation and the third one on
res judicata. Once the application, dated May 25, 1979 was made, the court should have treated it to be
one filed under Order 21, Rule 97(1) CPC. The question of res judicata for filing the second and third
applications does not arise. Under these circumstances the appellate court, though for different reasons
was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused
by Satyanarain under Orders 21 Rule 35(3) and 97(2) and Order 21 Rule 101 and 102 of CPC.
7. The appeal is accordingly allowed. The Order of the High Court and that of the Executing Court are set
aside. The Executing Court is directed to conduct an enquiry for removal of the obstruction for delivery of
possession of the property covered by the decree and pass appropriate orders according to law. The
application filed by Lakshminarain is rejected. If he has got any other right independent of the rights in the
proceedings under execution, it may be open to him to agitate the same according to law. No costs
