Execution OF Commercial DECREE – AVOIDANCE OF ROADBLOCK

 

Execution OF Commercial DECREE – AVOIDANCE OF ROADBLOCK

It has constantly been observed that tyranny of a decree holder begins, after, a decree holder obtains a judgment and decree. This is not as if, the judgment and decree could be obtained by a decree holder without any effort or ordeal. In fact, the efforts in contesting the case till obtaining decree is lengthy and strenuous. However, when the decree holder feels that this is the time to reap the fruit of their effort in obtaining decree, that, another round of litigation begins and some time, the objections filed to the decree in execution proceedings are such that yet again, for all purposes, a full- fledged trial commence as per Order 21 Rule 58 of Code of Civil Procedure. It is the execution proceedings that test the endurance and resilience of decree holder are tested even more rigorously, and decree holder is left to feel as to how long and how far the predicament shall subsist.  It is in this backdrop, that the Supreme Court has expressed deep malaise in a very recent judgment reported as 2025 INSC 329, Periyammal (dead) Through LRs & Ors vs V Rajamani & Anr. While noting the situation of a decree holder, before delving into the facts of the matter, the Supreme Court was constrained to refer to earlier judgment and what was quoted therein in a matter captioned as Shreenath & Anr Vs Rajesh & Ors (1998) 4 SCC 543. The same is as under:     

2. “The seeker of justice many a time has to take long circuitous routes, both on account of hierarchy of courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breathes fear of receiving the fruits of that justice for which he has been aspiring to receive. To reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings, the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of the hierarchy of courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the lower courts under the scrutiny of a higher court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seeker in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches the litigation as much as possible. Thus, this has been the cause of anxiety and concern of various authorities, legislators and courts. How to eliminate such a long consuming justice? We must confess that we have still to go a long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice. The courts within their limitation have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decretal property, which is within its fold in an execution proceeding, i.e., including what may be raised later by way of another bout of litigations through a fresh suit. Similarly, legislatures equally are also endeavouring by amendments to achieve the same objective. The present case is one in this regard. Keeping this in view, we now proceed to examine the present case. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.”

The above finding is recorded by the Supreme Court in Shreenath & Anr (Supra) on an important question framed as to whether an appeal, not maintainable under Section 50 of the Arbitration and Conciliation Act, 1996 (A & C Act) is nonetheless maintainable under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as “the Commercial Courts Act”).  

It is unfortunate that in common parlance it is understood that the woes for the litigants in this country start, once, they are able to obtain a decree in their favour and are unable to execute and reap its fruits for years together. It is so, because, repeated objections and taking recourse to all kind of measures with a view to frustrate the judgment and decree are often taken making it prolonged legal wrangles even after obtaining decree in the original matter and even after succeeding in appeal/s, as the case may be.

The execution proceedings are sought to be simplified and expedited in the cases of judgment and decree obtained in commercial suits. The Commercial Courts Act 2015 as amended has ingrained the element of expedition and in the execution proceedings also the object has been the same. It is worthwhile, therefore, to illustrate in the following table as to how the execution proceedings in commercial decree are different than ordinary execution proceedings:

S.N	Execution proceedings	Execution proceedings in commercial cases
1.	Governed by the Code of Civil Procedure	Governed by Code of Civil Procedure, but with the trap of Commercial Courts Act 2015 and with some modification
2.	Decree executed by the Court that may have passed the decree and/or upon transfer to the courts as per the location of assets of judgment debtor, as the case may be and then jurisdiction shall be vested in the transferee court.	Commercial Courts that may have passed the judgment and decree shall have exclusive jurisdiction in respect of execution of its own decree.
3.	The duration in the execution proceedings could be lengthy, since, the scope of various objections are ingrained in the proceedings.	The Commercial Courts Act and its object has ordained expedition and the several judgments of Supreme Court has also reinforced that. The object is to avoid delay.
4.	Though the execution proceedings could commence, even without issuing notice, if two years have not elapsed from the judgment and decree sought to be executed and warrant of attachment could accordingly be issued without show cause notice to the judgment debtor. In case the execution petition is preferred after two years of judgment and decree, then, notice to a judgment debtor shall be mandatory.	Immediate execution could be ordered on oral application even at the time of passing of judgment and decree, in case, defendant (judgment debtor) remains present in the court at that time. The underlying object is to prevent delay and also to secure the assets of judgment debtor from being sold or alienated.
5.	The properties of judgment debtors could be attached or sold, however, there are several exemptions available to a judgment debtor and objections, as per Order XXI Rule 58 could be preferred by an objector/judgment debtor.	At any stage of suit and upon passing of judgment and decree, a commercial court can call upon the defendant/judgment debtor to furnish security in respect of claim/decree in favour of Decree holder/plaintiff. The object is to prevent alienation of assets of defendant even before judgment and decree is passed.
6.	A third party can raise objection, if the third party is affected from the order of attachment of assets and such an objection shall have to be adjudicated by the court.	Though, there has not been any prohibition in raising objection, but as per the Commercial Courts Act, the object being early resolution, hence, prolonged delay is not permitted.
7.	Judgment debtor could be orally examined, but it is often seen that such examination hardly elicit any result, since, the cumbersome process of execution enables a judgment debtor to dispose of/sale/alienate the property/assets.	The guidelines from Supreme Court mandates that the judgment debtor shall have to disclose the assets on oath before settlement of issues in the suit. This is a safeguard to ensure that decree passed subsequently, should not hit a roadblock and rendered un-executable.

 

Specified value

The Commercial Courts Act (CCA) 2015 was enacted for commercial disputes for specified value of Rs Three Lakhs Rupees or more. The need was felt to have a comprehensive Act for commercial disputes with a view to stop the bottleneck causing delay at the stage of completion of pleading and the issues of successive adjournments that plagued the proceedings in courts is sought to be nullified through the CCA. Therefore, not only, several provisions seeking expeditious disposal of the lis are prescribed in the CCA by way of amending provisions of CPC. In execution proceedings, the comprehensive provisions finds mention in Order XXI Rule 101 and that in itself has been a complete code and applicable in the execution proceedings of commercial suits, also, but little tweaking is done, in order to seek early disposal of the execution proceedings in commercial decrees. In this context it is worthwhile to refer to certain provisions of CCA entailing substantive changes with a view to achieve the goal of early disposal, right from the stage of filing of the suit, rather, even before filing of the suit, since, the pre-litigation mediation has also been envisaged in the CCA. Some salient provisions in CCA is referred to hereinbelow for ready reference:

Sections in CCA 2015	Particulars
Section 12 A	Pre-litigation mediation for specified value of Rs Three lakhs and above. The object is to sort out the dispute under the Act before filing of a commercial suit, so as to explore the prospect of settlement right at the beginning and only if disputes are not sorted out after obtaining non- starter report, a commercial suit could be filed.
(Order V Rule 1)	In the Order V, in Rule 1, in sub-rule (1), for the second proviso, the following proviso is substituted. The same is as under: “Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs  as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall  forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record”.
Order XIII A	The provision relates to summary judgment. Though, in ordinary suits the provisions of Order XXXVII of Code of Civil Procedure is thereof for a summary judgment, but the same is only in relation to such cases, the said provision shall be attracted, whereas , so far as commercial courts are concerned as per Order XIII-A of CPC as added for a commercial disputes, the judgment could be passed on the basis of admissions.
Order XV A	The provision relates to case management hearing. The hearings shall commence not later that four weeks of filing of admission -denial affidavit , case management hearing.
Section 35 CPC	The cost regime is enhanced in CCA. The costs remained the discretion of court in ordinary suits. In CCA, however, losing party is mandated to pay costs to the successful party. Moreover, the object as per CCA to award actual and reasonable costs, while, factoring all such issues. There is no cap in awarding costs.

 

In the context of the costs as contained in section 35 A of CPC what is of significance is that in Commercial Courts Act Section 35 A of CPC is amended in as much as clause (2) of Section 35A stands omitted. This is significant, in as much as the clause (2) of Section 35 A of CPC contained as under:

(2) No Court shall make any such order for the payment of an amount exceeding Three Thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less.

In the Code of Civil Procedure the fetter to the costs prevailing earlier has been done away with and as such in commercial suits, the courts are empowered to act without any fetter as per Section 35 A (1).

Therefore, the Commercial Courts Act shall be empowered to act as per section 35 A of CPC and without any fetter and in terms of section 35 A(1) of CPC which is reproduced as under:

(1) if any suit or other proceedings, including an execution proceedings but excluding an appeal or a revision, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if, thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court if it thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of cost by way of compensation.

What is crystallised therefore is that the procedure of commercial courts Act is enacted with a view to secure the expeditious disposal of the suit and the procedural bottlenecks should not be allowed to delay the proceedings. The execution proceedings, may commence, after summary judgments under Order XXX-A and even when the judgment and decree is passed in presence of defendant, the defendant could be directed to make good the decretal amount at that stage itself.

EXECUTION OF FOREIGN AWARD & COMMERCIAL COURTS ACT

The Supreme Court recently in a matter reported as Kandla Export Corporation & Anr Vs M/s OCI Corporation & Anr. Civil Appeal No.1661-1663 OF 2018 arising out of SLP (Civil) No. 28582-28584 of 2017, while, dealing with execution of a foreign award in India has categorically held that as the very object of the Commercial Courts Act 2015, is to enforce the judgment and decree expeditiously, therefore, taking note of the said object, mode of expedition has to be preferred. Therefore, appeal inbuilt as per the Commercial Courts Act 2015, in the backdrop of Arbitration & Conciliation Act (A & C Act)  1996 (as amended and up to date) may not be necessary, since, A & C Act itself crave for expedition and that is the object of Commercial Courts Act 2015, hence, in the case of enforcement of foreign award, since, the inbuilt mechanism under the A & C Act 1996 itself craves for expeditious resolution, hence, it was held that appeal under the Commercial Courts Act in respect of foreign award shall not be required.

28. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d’être for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs.one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs.1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-à-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.

It appears that as per the Commercial Courts Act and  the Explanation to Section 47 of the Arbitration Act, when read with Section 11 of the Commercial Courts Act, would make it clear that the non-obstante clause 7 contained in Section 21 of the Commercial Courts Act has to give way to Section 11, and that since Section 50 of the Arbitration Act impliedly bars appeals against an application allowing execution of a foreign award. The Supreme Court has earlier held in Fuerst Day Lawson Limited v. Jindal Exports Limited, (2011) 8 SCC 333, A & C Act is a self-contained Code on all matters pertaining to arbitration, which would exclude the applicability of the general law contained in Section 13 of the Commercial Courts Act. The object of both the Acts is to speedily determine matters pertaining to arbitration and/or commercial disputes and, the providing of an extra appeal by the Commercial Courts Act, which is impliedly excluded by the Arbitration Act, would militate against the object of both Acts. It may thus appear that in cases of enforcement of foreign awards of an amount below Rs.1 crore, admittedly, no appeal would lie. However, merely because the amount contained in the foreign award in question was above Rs.1 crore, it does not stand to reason that an extra appeal would be provided. That is not the intention of the Commercial Courts Act.

The important question thus raised in Kandla Export Corporation (Supra) as to whether an appeal, not maintainable under Section 50 of the Arbitration and Conciliation Act, 1996 (A & C Act) is nonetheless maintainable under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 has accordingly been answered.

Under Section 47 of the CPC, questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree are covered whereas under Order XXI, Rule 97 read with rule 101 of the CPC, questions including those relating to right, title or interest in the property arising between the parties to the proceeding on an application under Rule 97 or Rule 99 of Order XXI are to be determined by the executing court. The language of Rule 97 provides that where the holder of a decree for possession of immovable property 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.

Section 47. Questions to be determined by the Court executing decree.

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

          (2) xxx         

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation 1.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.-

(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” Order XXI, Rule 35 reads as follows:

Order 21 Rule 35.

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 the beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(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.”

Order XXI, Rule 97

“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 the upon the application in accordance with the provisions herein contained.”

Order XXI, Rule 98

“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 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.

(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.” 

Order XXI, Rule 99

“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 may 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.” Order XXI, Rule 100 reads as follows:

“100. Order to be passed upon application complaining of dispossession.

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.”

Order XXI, Rule 101

“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 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.” Order XXI, Rule 103 reads as follows:

“103. Orders to be treated as decrees.

Where any application has been adjudicated upon under rule 98 or rule 100 the other 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.”

Nature of application under Order XXI Rule 97

It is a settled position of law that an application under Order XXI Rule 97 may be made in respect of obstruction raised by any person in obtaining possession of the decretal property. The courts adjudicating such application have to do so in accordance with Rule 101 and hold a full-fledged inquiry to determine all questions including questions relating to right, title or interest in the property arising between the parties.

 

 

                                        LAW

(1) State of Bihar & Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC 472

(2) Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344.

It is held in the above judgments that rules of procedure are made to advance the cause of justice and not to defeat it. The courts ought to adopt such construction of rules or procedure that prevents miscarriage of justice.

(3) Rajinder Kumar v. Kuldeep Singh (2014) 15 SCC 529 It is held in the above judgment that the question of alternative reliefs does not arise in case of a suit for specific performance, when it is decreed as prayed for. The relevant portion of the judgment is reproduced below:

“21. If the suit for specific performance is not decreed as prayed for, then alone the question of any reference to the alternative relief would arise. Therefore, there is no question of any ambiguity. As held by this Court in Topanmal Chhotamal v. Kundomal Gangaram AIR 1960 SC 388  and consistently followed thereafter, even if there is any ambiguity, it is for the executing court to construe the decree if necessary after referring to the judgment. If sufficient guidance is not available even from the judgment, the court is even free to refer to the pleadings so as to construe the true import of the decree. No doubt, the court cannot go behind the decree or beyond the decree. But while executing a decree for specific performance, the court, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the intention of the parties.”

(4) In Smriti Debbarma v. Prabha Ranjan Debbarma 2023 SCC OnLine SC 9 it is held as under:

“(…) The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule ‘A’ property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule ‘A’ property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.”

(5) Sunder Dass v. Ram Prakash reported in (1977) 2 SCC 662

It is a settled law that a challenge to the validity of a decree can be set up even at the stage of execution proceedings, in cases where the civil court inherently lacks jurisdiction. The relevant portion of the judgment is reproduced below:

“3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117] and Seth Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.”

(6) In NSS Narayan Sarma & Ors. v. Goldstone Exports (P) Ltd. & Ors. (2002) 1 SCC 662, has held as under:-

“15. 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 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. 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”.

Obviously, if any person claiming title to the property in his possession obstructs 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.

(7).   In Samir Singh and Anr. vs. Abdul Rab, (2015) 1 SCC 379, has held:

“26. 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 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.”  

(8).   The Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 697, has held that:- 

“4. (…) 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 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 substance-less 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.

(9) The Supreme Court in Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Anr 1998 (3) SCC 723, a three Judge Bench of Supreme Court has observed that a third party to the decree including the transferee pendente lite can offer resistance or obstruction and his right has to be adjudicated under Order XXI Rule 97 of CPC. The relevant portion of the said judgment is reproduced below:

“9. At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser".

Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by-“any person” in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.

10. 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 pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such 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.

 

On analysis of the principles it is clear that in execution of decree for possession of immovable property, the executing court delivers actual physical possession of the decretal land to the decree holder. A bare perusal of Rule 35 reflects that executing court shall be competent to remove any person, who is bound by the decree and in case he refuses to vacate the property. The words “any person who is bound by the decree”, on the face value shall suggest that the removal can only be of a person, who is bound by the decree. On the other hand, some answer shall come out of Rules 97 to 101 as that deal with a situation when execution is obstructed or resisted by “any person” claiming right, title or interest in the property. Contextually, here, the words “any person” include even a stranger to a decree resisting the decree of possession as not being bound by a decree or by claiming independent right, title or interest to the property. Therefore, whereas Rule 97 not only provides remedy to a decree holder in obtaining possession of an immovable property, rather it also includes a stranger who obstructs or resists delivery of possession of the property by claiming derivative title from the judgment debtor or independent right, title or interest in the decretal property. Yet another rule, significant in the context is Rule 99 that gives right to a third party claiming right, title or interest in the property to seek restoration of the decretal property. The rule 99 shall be invoked, when a person claiming right to the decretal property is already dispossessed.

As far as Rule 101 is concerned the said rule enables the executing Court while dealing with applications under Rule 97 or 99 to determine all questions including questions relating to right, title or interest in the property, arising between the parties and relevant to the adjudication of the application.

Section 47 of the code stipulates that questions, rather, all the questions arising between the parties relating to execution if judgment and decree shall have to be adjudicated by the executing court- whether the same revolves around execution, satisfaction of decree or discharge. A separate suit for this purpose shall not be necessary. The judgment debtor can raise objections to the effect that no notice regarding execution of the sale deed and delivery of possession was served upon them, due to which, they were unable to avail a fair chance of putting forth their objections; and/or any fraud is played upon the parties and stay of execution proceedings could also be prayed for. The executing court as a matter of principle as contained in Order 21 Rule 22 of the Code of Civil Procedure is not obliged to issue show cause notice to the judgment debtor, in case, the execution petition is preferred within two years of passing of a judgment and decree.

It is competent to the executing court, for instance, to examine, if the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent. The broad principle however is that executing court cannot go behind the decree.  

Therefore, 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 is 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. The 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.

Thus, if it is held 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 same shall be erroneous view. It is so, because, it may result 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. The statutory scheme envisaged by Order XXI Rule 97, CPC 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.

It is therefore, clear, that executing court, can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. The said question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor.

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                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com