REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5632 OF 2019 (arising out of SLP (C) No. 9665 of 2011)

SHAMSHER SINGH & ANR. ...APPELLANTS  

VERSUS

LT. COL. NAHAR SINGH (D)  THR. LRS. & ORS.  ...RESPONDENTS  

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the Division

Bench Judgment of Calcutta High Court in FMA No.720

of 2005, by which the appeal filed by the respondent

No.1  has been allowed setting aside the order of

Executing  Court  dated  10.08.2004  rejecting  the

application filed by respondent No.1 under Order XXI

Rules 98, 99 and 100 of the Code of Civil Procedure

(hereinafter referred to as “CPC”).    

2. Brief  facts  of  the  case  giving  rise  to  this

appeal are:-

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2.1 One  Tarapada  Dutta  owned  premises  No.15,

Sahanagar  Road,  P.S.  Tollygunge,  Calcutta.

An agreement for sale was executed by Anadi

Dutt, who claimed to be son of Tarapada Dutta

in favour of Rajvindar Singh in respect of 4

Kh. 4 Ch. and 00 sft. of land and structures

at  premises  No.15.   Another  agreement  for

sale was entered by Anadi Dutt with Shamsher

Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of

land and structures of premises No.15.   

2.2 The respondent had filed a T.S. No.211 of

1990 before the 3rd Munsif at Alipore praying

for decree of declaration of his right with

regard to premises in question on the basis

of adverse possession.     

2.3 Anadi Dutt having not executed the sale deed

in  pursuance  of  agreement  for  sale  dated

07.05.1990, two title suits being Suit No.50

of  1994  and  51  of  1994  were  filed  by

Rajvindar  Singh  and  Shamsher  Singh,  which

were  decreed  ex-parte  on  20.12.1994.   In

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pursuance  of  decree  of  the  Court,  two

separate Deeds of Conveyance were executed in

favour of Dayal Singh (Nominee of Rajvindar

Singh)  and  in  favour  of  Shamsher  Singh.

Decree holders filed two execution cases vide

Execution no. T.Ex. No.09 of 1995 and T.Ex.

No.10 of 1995 seeking delivery of possession

of  the  suit  property.   First  Time  Court

Bailiff  could  not  succeed  in  delivering

possession, however, subsequently the Court

Bailiff  with  the  help  of  police  delivered

Khas vacant possession of the suit premises

to the Decree Holder on 12.04.1996.   

2.4 After lapse of 30 days, respondent No.1 filed

two Misc. cases Nos. 10 of 1996 and 11 of

1996 against Rajvindar Singh, Shamsher Singh,

Dayal Singh and Asis Dutt under Order XXI

Rules  98,  99  and  100  CPC  before  the  6th

Assistant District Judge, Alipore.  In the

said two Misc. cases, respondent No.1 claimed

that his father Sardar Iqbal Singh was the

occupier and was running his business under

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the  name  and  style  as  Public  Transport

Business in the suit premises and after his

death,  respondent  No.1  has  been  running  a

business  under  the  name  and  style  of  Ex-

Service United Coal Enterprise (P) Ltd.  In

the above said Misc. Case No.10 of 1996, the

respondent No.1 claimed that Anadi Dutt was

not the son of Tarapada and it was Asis Kumar

Dutt, who was the only son, owner and only

legal heir of Late Tarapada.  It was also

claimed  that  a  T.S.  No.211  of  1990  was

pending before 3rd Munsiff at Alipore filed by

respondent No.1, in which he claimed right

and title of the suit premises on the basis

of adverse possession. It was further claimed

that  Shamsher  Singh,  Rajvindar  Singh  and

Dayal Singh had fraudulently obtained decree

in collusion with Anadi Dutt and has evicted

the respondent No.1 from the suit property.  

2.5 In  Misc.  proceeding  application,  although,

the respondent No.1 has impleaded Asis Kumar

Dutt  but  he  neither  contested  the  Misc.

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application nor challenged the title of Anadi

Dutt,  against  whom  an  ex-parte  decree  was

passed.  On 21.01.1999, Dayal Singh also got

a deed of conveyance executed in his favour

by Asis Kumar Dutt, alleged true legal heir

of the Late Tarapada Dutta.  Dayal Singh got

his  name  mutated  in  Kolkata  Municipal

Corporation.   

2.6 The Executing Court by order dated 10.08.2004

rejected Misc. Case No.10 of 1996 and Misc.

Case No.11 of 1996 filed by respondent No.1.

Trial court held that respondent No.1 failed

to prove that he has acquired title by way of

adverse possession.  Against the order dated

10.08.2004 rejecting the Misc. applications

filed by respondent No.1, first appeal, FMA

No. 720 of 2005 was filed by respondent No.1

in the Calcutta High Court, which appeal has

been allowed by Calcutta High Court by the

impugned judgment dated 15.12.2009.  The High

Court by impugned judgment has set aside the

order of the Executing Court dated 10.08.2004

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disposing the application filed by respondent

No.1 under Order XXI Rules 98, 99 and 100

with a direction that appellant (respondent

No.1 in this appeal) should be put back into

possession of the suit property.  Aggrieved

by  the  judgment  of  the  High  Court,  this

appeal has been filed.   

3. We have heard Shri Debal Banerji, learned senior

counsel  for  the  appellant  and  learned  counsel

appearing for the respondent.  

4.  Shri  Debal  Banerji,  learned  senior  counsel

appearing  for  the  appellant  submits  that  Executing

Court  had  rightly  rejected  the  application  of

respondent No.1 filed under Order XXI Rules 98, 99

and 100 CPC, he having failed to prove his title over

suit premises.  It is submitted that the appellants

were put in possession of the property in execution

of decree of the Court.  The Executing Court having

held that respondent No.1 failed to prove his title

by  adverse  possession,  the  application  was  rightly

rejected.  It is further submitted that T.S.No.211 of

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1990  filed  by  respondent  No.1  claiming  for

declaration  of  the  title  on  the  basis  of  adverse

possession  has  been  subsequently  dismissed  on

16.03.2009.   It  is  submitted  that  High  Court

committed  error  in  allowing  the  appeal  filed  by

respondent  No.1  without  any  valid  ground.   It  is

submitted  that  High  Court  has  in  its  impugned

judgment erred in taking the view that the question

whether  the  appellant  has  obtained  any  title  in

respect  of  the  suit  property  by  way  of  adverse

possession  or  not,  need  not  be  gone  into  in  the

appeal.  It is submitted that decree passed by Civil

Court in favour of the appellant was never challenged

by anyone including the respondent No.1 or Asis Kumar

Dutt, who is claimed by respondent No.1 as son of

Tarapada  Dutta.   Respondent  No.1  having  failed  to

prove his title to the property, he was not entitled

to  put  back  in  the  possession  and  High  court

committed error in allowing the appeal of respondent

No.1.

5. Learned counsel for the respondent refuting the

submissions of the learned counsel for the appellant

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contends that the fact is that respondent No.1 was in

long  possession  of  the  premises  and  had  acquired

possessory  title.   It  is  submitted  that  several

documents were filed by the respondent No.1 before

the  Executing  Court  to  prove  his  possession.  It

having  been  found  that  respondent  No.1  was  in

possession  prior  to  he  being  dispossessed  in

execution of the decree, he was entitled to be put

back into possession.  It is submitted that it was

not necessary for respondent No.1 to establish his

title to the land in dispute for purposes of Order

XXI Rules 98, 99 and 100 CPC.  It was sufficient for

the  respondent  No.1  to  prove  that  he  was  in

possession  prior  to  his  dis-possession,  which  was

sufficient for putting him back into possession.  He

submitted  that  the  High  Court  did  not  commit  any

error in putting back the appellants into possession

by  allowing  the  appeal.   He  submits  that  the

appellants have obtained a fraudulent decree against

a  person  Anadi  Dutt,  claiming  to  be  son  of  Late

Tarapada Dutta, whereas the real son is Asis Kumar

Dutt.  The respondent No.1 has been dispossessed on

the basis of a fraudulent ex-parte decree, on the

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strength of agreement of sale executed by a person,

who has no title to the property.   

6. We have considered the submissions of the learned

counsel for the parties and have perused the records.

7. There is no dispute between the parties that the

premises  in  question  was  originally  owned  by  one

Tarapada Dutta.  The case of the respondent No.1 is

that his father Late Iqbal Singh has trespassed into

the  premises  No.15,  Sahanagar  Road  and  after  his

death in 1965, it was respondent No.1, who was in

occupation  and  possession  of  the  premises.   In

pursuance  of  decree  for  specific  performance  of

contract passed in T.S. No. 50 of 1994 and T.S. No.51

of 1994, in execution proceedings, the decree holders

were put in possession on 12.04.1996.  At the time of

taking  possession,  one  Shri  Gopal  Adak  was  found

present  in  the  premises,  who  had  claimed  to  be

employee  of  respondent  No.1.   Respondent  No.1  had

filed  a  suit  for  declaration  of  the  title  on  the

basis of adverse possession being T.S. No. 211 of

1990.  Copy of the plaint of the suit filed in the

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Court of 3rd Munsiff, 24 Parganas is brought on record

as Annexure P-1.  In the suit, following reliefs had

been  claimed  by  the  respondent  No.1,  who  was

plaintiff in the suit:-

“a) A declaratory decree that the plaintiff has  absolute  possessory  title  in  the suit  premises  No.15,  Shahanagar  Road, Calcutta under P.S. Tollygunge as fully described  in  the  Schedule  ‘A’  of  the plaint  since  the  year  1965  to  the exclusion  of  all  other  person  or persons.

b) Decree  for  permanent  injunction restraining  the  defendant  and/or  any person on its behalf and agent, its men, for  interfering  with  the  plaintiff’s possession  and  occupation  of  the  suit premises fully described in Schedule ‘A’ of the plaint in any manner whatsoever.

c) Temporary injunction.

d) Ad-interim injunction in terms of prayer (c) above.

e) Commission.

f) Receiver.

g) Costs.”

8. In the application, which was filed by respondent

No.1 for putting him back into possession under Order

XXI Rules 98, 99 and 100 CPC, the respondent No.1 has

claimed his possession since 1965 after death of his

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father.  The respondent No.1 in his application has

also relied on filing of suit for declaration of his

title being Suit No.211 of 1990.  There is no dispute

between the parties that in execution of decree of

specific  performance,  the  appellants  were  put  in

possession  and  respondent  No.1  aggrieved  by  his

dispossession  had  filed  an  application  under  Order

XXI Rules 98, 99 and 100.

9. Before  we  proceed  further,  it  is  necessary  to

look into the provisions of Order XXI Rules 98, 99

and 100, as it existed at the relevant time.  It is

to  be  noted  that  by  Code  of  Civil  Procedure

(Amendment) Act, 1976, there has been amendment in

Order XXI Rules 97 to 103.  Order XXI Rule 97 deals

with the resistance or obstruction to possession of

immovable property, with which we are not concerned.

Present is a case where the respondent No.1 alleged

his dispossession by decree holders.

10. Order  XXI  Rules  97  to  103  was  substantially

amended  by  Code  of  Civil  Procedure  Amendment  Act,

1976, Act No.104 of 1976 w.e.f. 01.02.1977. The bill

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further to amend the code of Civil Procedure of 1908

was introduced in Parliament as Bill No.27 of 1974 on

08.04.1974. The statement of objects and reasons of

the bill is relevant to be noticed. The statement of

objects and reasons as well as notes on clauses were

published in the Gazette of India extraordinary Part

II Section (2) on 08.04.1974. Notes of clauses with

regard to amendment of Rules 97 to 103 of Order XXI

of Civil Procedure Code is contained in Clause 75

(sub-clause  xxxiii),  which  is  to  the  following

effect: -

“Sub-clause(xxxiii).  –  The  general  scheme of rules 97 to 103 has been altered on the lines of the amendments proposed to rules 58  to  63.  The  main  feature  is  that questions (including a question relating to right, title or interest in the property) arising between the parties to a proceeding under  rule  97  or  rule  99  is  to  be determined  in  execution  proceeding  itself and  not  left  to  be  decided  by  way  of separate suit. Rule 98 has been amplified to cover cases of resistance, etc., by a person acting under any instigation by the judgment-debtor.”

11. In the present case, the Rule which has fallen

for interpretation is Rule 101 of Order XXI. What was

the Rule 101 prior to 1976 Amendment and subsequent

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to 1976 amendment is relevant to be noticed to mark

the difference into legislative scheme.  

12. Rule 101 prior to amendment contained marginal

note  “Bona  fide  claimant  to  be  restored  to

possession” which Rule is as follows: -  

“101.  Where the  Court is satisfied  that  the applicant  was  in possession of the property on his own account or on account  of  some  person other  than  the  judgment- debtor,  it  shall  direct that the applicant be put into  possession  of  the property.”

Bona fide  claimant  to be  restored  to  possession .

13. After the 1976 amendment both the marginal note

and  Rule  101  was  substantially  changed.  Rule  101

after 1976 Amendment is as follows: -  

“Question to be  determine d

101. 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

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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.”  

14. The  scope  and  ambit  of  Rule  101  prior  to

amendment was entirely different as compared to Rule

101 as was brought into statute after 1976 amendment.

Under unamended Rule 101, a bonafide claimant had to

be restored to possession and by virtue of Rule 103,

Orders passed under Rule 101 was conclusive subject

to the result of the suit to be filed by any party

not being the judgment-debtor. Unamended Rule 103 was

as follows: -

“103.  Any  party  not  being  a judgment-debtor against whom an order  is  made  under  rule  98, rule  99,  or  rule  101  may institute  a  suit  to  establish the right which he claims to the present  possession  of  the property;  but,  subject  to  the result of such suit(if any), the order shall be conclusive.”

Orders  conclusiv e subject to  regular  suit.

15. Rule 103 was also amended by 1976 amendment and

after the amendment, Rule 103 now is as follows: -

“Orders to be treated

103. Where any application has been adjudicated upon under rule 98 or rule 100, the order made

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as  decrees .

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.”  

16. There is a marked difference between Rule 101 as

it existed prior to amendment and as it now exists

after 1976 amendment. Earlier a person who was a bona

fide  claimant  and  who  satisfied  that  he  was  in

possession of the property on his own account or on

account of some other person then the judgment-debtor

could have been put in possession of the property on

an application under Rules 100 and 101, whereas now

after the amendment for putting back into possession

an applicant has not only to prove that he is in bona

fide possession rather he has to prove his right,

title or interest in the property. What was earlier

to be adjudicated in a suit under unamended  Rule 103

is now to be adjudicated in Rule 101 itself, thus,

for  being  put  in  possession,  an  applicant  has  to

prove his right, title or interest in the property

and by simply proving that he was in possession prior

to the date he was dispossessed by decree-holder, he

is not entitled to be put back in possession.  

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17. In  view  of  the  statutory  scheme  which  is

delineated  by  amended  provisions  of  Rule  101,  the

submissions of the counsel of the respondent that by

simply proving the fact that he was in possession

prior to he being dispossessed by decree-holder, he

should be put back in possession cannot be accepted.

The  respondent-applicant  had  to  prove  his  right,

title or interest in the property to be put back in

possession.

18. Now, for ready reference, Order XXI Rules 99, 100

and 101 are quoted below:-

“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 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.  

100.  Order  to  be  passed  upon  application complaining  of  dispossession— Upon  the

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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.

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.”

19. Whether  in  the  facts  of  the  present  case,

Executing Court was required to determine questions

relating to right, title or interest in the property

or  on  mere  finding  that  respondent  No.1  was  in

possession prior to he being dispossessed from the

property, he was entitled to put back into possession

?  The Executing Court while determining the Misc.

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application of the respondent No.1 has considered the

entire  case  of  the  respondent  No.1  including  the

documents filed by him for proving his possession.

The Executing Court noticed that respondent No.1 has

already filed a Suit No.211 of 1990 for declaration

of  his  title  on  the  basis  of  adverse  possession.

After considering the oral evidence and documentary

evidence, the Executing Court returned the findings

that respondent No.1 had failed to establish his case

that he has clear right, title and interest over the

suit  property  by  way  of  adverse  possession.

Following  observations  of  the  trial  court  may  be

referred to in this context:-

“Next we have to examine the other aspect of  the  matter,  i.e.,  we  are  required  to determine  all  the  questions  including question  relating  to  right,  title  and interest of the suit property which arises under application u/R 97 or 99.  We have initially  observed  that  there  is  a  title suit pending where the question about the acquisition of title by the petitioner by way  of  adverse  possession  is  the  subject matter.  It  is  to  be  carefully  thought whether at this stage it will be proper to pass any observation on a matter which is already pending before a competent Court of law.  We cannot ignore that title suit is yet to be decided conclusively and pending the  suit  we  should  not  pass  any  comment about petitioner’s claim.   

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Be that as it may, let us find out as to how  far  the  petitioner  has  been  able  to establish  his  assertion  that  he  has acquired right, title and interest over the suit property by way of adverse possession.

Therefore, we find from the evidence of PW1 that it is not wholly trustworthy and from his oral evidence it is very difficult to appreciate  the  petitioner’s  case.   It  is not  clear  as  to  how  and  on  what  date Tarapada  Dutta,  the  admitted  owner  was disposed or in what manner Iqbal Singh came to  possess  and  occupy  the  suit  property. The elements for asserting right by adverse possession have not at all been proved in this  case.   Rather,  there  has  been  no attempt by the petitioner to establish his acquisition  of  title  by  way  of  adverse possession.  

In a proceeding u/s 21 Rules 98 and 99 it is  even  more  essential  to  establish  his right  so  as  to  seek  relief.   The  whole burden  was  upon  the  PW1  but  he  failed miserably.”   

20. Thus,  the  trial  court  returned  categorical

finding that appellant has failed to prove his right,

title and interest and his application deserves to be

rejected.   The  High  Court  in  appeal  filed  by

respondent No.1 without upsetting the finding of the

Executing Court that respondent No.1 failed to prove

his title by adverse possession allowed the appeal by

making following observations:-

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“Be that as it may, the question whether the  appellant  has  obtained  any  title  in respect  of  the  suit  property  by  way  of adverse  possession  or  not  is  not  being decided by this Court and thus this Court is not going into the said question.  But the  fact  remains  that  the  appellant  was very  much  in  possession  of  the  suit property  when  the  respondent  No.1  took delivery of possession of the suit property through  the  Court’s  bailiff  without  any proceeding  being  initiated  against  the appellant and without the appellant being served with any prior notice with regard to such delivery of possession…………..”

21. The amendments made in Order XXI Rules 97 to 103

by Code of Civil Procedure (Amendment) Act, 1976 came

to  be  considered  by  this  Court  in  Shreenath  and

Another  Vs.  Rajesh  and  Others,  (1998)  4  SCC 543.

This  Court  while  noticing  the  question,  which  had

arisen  in  the  above  case  has  made  following

observations in paragraph Nos. 2, 3 and 5:-

“2. 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.

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3. 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.

5. The  question  raised  is,  whether  the third  party  in  possession  of  a  property claiming independent right as a tenant not party  to  a  decree  under  execution  could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 of the Civil Procedure Code?”

22. In the above case, respondent No.1 filed a suit

for redemption of mortgage against respondent No.2,

which was decreed.  The decree directed the delivery

of vacant possession of the mortgaged property to the

applicant (respondent No. 1). In the said suit, the

appellants  were  not  parties.  The  appellant,  who

claimed to be in possession, obstructed the execution

of  the  decree  on  the  ground  that  they  were  the

tenants in the shop from much before the execution of

the  mortgage.   In  the  above  context,  this  Court

noticed  the  amendments  made  in  Order  XXI.   In

paragraph  Nos.  11,  13  and  16,  following  was  laid

down:-

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“11. 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 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.

13. 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-holder’s  application.

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Thus  even  prior  to  1976,  right  of  any person claiming right on his own or as a tenant,  not  party  to  the  suit,  such person’s 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. 16. In Noorduddin v. Dr K.L. Anand, (1995) 1 SCC 242 it is held: (SCC p. 249, para 8)

“8.  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 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

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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.”

23. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and

Another, (1998) 3 SCC 723, a Three-Judge Bench had

occasion to consider provisions of Order XXI Rules

97, 101, 102 and 103 as amended by Code of Civil

Procedure (Amendment) Act, 1976.  In paragraph Nos. 9

and 10, following was laid down:-

“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

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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 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.

24.  To the same effect is the judgment of this Court

in  Ghasi  Ram  and  Others  Vs.  Chait  Ram  Saini  and

Others,  (1998)  6  SCC  200. Another  judgment,  which

need to be noticed is judgment of this Court in Ashan

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Devi and Another Vs. Phulwasi Devi and Others, (2003)

12 SCC 219.  In the above case, a decree of specific

performance of contract was obtained on 08.11.1990.

Decree was put in execution by the decree-holder, in

pursuance  of  which  execution,  possession  was  also

obtained on 05.09.1996 through Court.  A petition was

filed under Order XXI Rule 99 before the Executing

Court claiming that the objector being not party to

the  suit  for  specific  performance,  they  cannot  be

dispossessed  in  execution  of  the  decree.   It  was

contended by the objector that they have purchased

the property by sale deed in the year 1985 and decree

in the absence of the Objectors who were necessary

parties  to  the  suit,  is  not  executable.    The

application was allowed by the Executing Court and

objectors  were  put  in  possession,  against  which

order, an appeal was filed in the High Court.  High

Court  had  allowed  the  appeal  holding  that  the

Objectors  were  not  actually  and  physically

dispossessed, the application under Order XXI Rule 99

of the Code was not maintainable and the executing

court could not have decided the competing claims of

the  parties  to  the  property  in  the  course  of

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execution proceedings.  The matter was taken to this

Court, where this Court after noticing the relevant

provisions have interpreted the provisions of Order

XXI  Rules  99  and  101.   This  Court  held  that  the

purpose  of  amendment  brought  by  Code  of  Civil

Procedure  (Amendment)  Act,  1976  was  to  enable  the

third parties to seek adjudication of their rights in

execution  proceedings  with  a  view  to  curtail  the

prolongation of litigation.  Following was laid down

in paragraph Nos. 25, 28, 29 and 30:-

“25. In  interpreting  the  provisions  of Order 21 Rule 97 of the Code and the other provisions in the said order, the aims and objects  for  introducing  amendment  to  the Code  cannot  be  lost  sight  of.  Under  the unamended  Code,  third  parties  adversely affected or dispossessed from the property involved, were required to file independent suits  for  claiming  title  and  possession. The  legislature  purposely  amended provisions in Order 21 to enable the third parties  to  seek  adjudication  of  their rights in execution proceedings themselves with a view to curtail the prolongation of litigation  and  arrest  delay  caused  in execution of decrees. See  Bhag Mal v.  Ch. Parbhu Ram, (1985) 1 SCC 61.

28. In view of the discussion aforesaid, in our opinion, the executing court was well within  law  in  recording  evidence  and adjudicating the claim of the third party. The  executing  court  rightly  rejected  the preliminary  objection  to  the maintainability  of  application  of  the

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objectors  under  Order  21  Rule  99  of  the Code and decided the other issues on merits of their claims arising between the decree- holder and the objectors.

29. The  High  Court  in  appeal  mainly concentrated its decision on the question of tenability of application under Order 21 Rule 99 at the instance of the objectors and  having  rejected  the  said  application did not in detail deal with other issues on merits  arising  between  the  decree-holder and  the  objectors.  The  issues  on  merits which were liable to be re-examined by the appellate  court,  as  the  first  court  of facts and law, were:

(1) Whether the decree-holder at the time of institution of suit had knowledge  of  the  execution  of the  registered  sale  deeds  in favour of the objectors and yet they  deliberately  avoided  to make them as parties to the suit and thus obtained in collusion with  the  vendors  an  ex  parte decree  of  specific  performance of the contract.

OR

(2) Whether the objectors had full knowledge of existence of prior agreement  of  sale  executed  by the  vendors  in  favour  of  the decree-holder  and  despite  such knowledge  they  purchased  the suit property to frustrate the agreement existing in favour of the decree-holder.

30. As the appellate court, having rejected the objectors’ application under Order 21 Rule  99,  has  not  in  greater  detail  gone into the contested issues on merits, it is

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necessary to set aside the impugned order of the High Court and remand the case to it for  decision  of  the  appeal  afresh  in accordance with law.”

25. The  above  judgment  of  this  court  clearly  lays

down  that  all  issues  between  the  parties  in

application under Order XXI Rules 99, 100 and 101

need to be examined by trial court and decided.  

26. The use of the words “all questions (including

the 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

…………” has to be given meaning and full play.  It is

also relevant to note that prior to Amendment, 1976,

under  Rule  103,  the  aggrieved  party  could  have

brought a suit for determination of rights between

them  but  by  Amendment,  1976,  Rule  103  has  been

amended to the following effect:-

“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.”

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27. The purpose of amendment under Rule 103 is also

that any adjudication made under Rule 101 shall have

same force and be subject to the same conditions as

to an appeal or otherwise as if it was a decree.

Rule 101, thus, affords an opportunity to get all

issues relating to right, title or interest in the

property to be determined.  When the respondent No.1

filed his application claiming to be put back into

possession, it was obliged to establish its right,

title or interest in the property without which his

application  could  not  have  been  allowed.   The

Executing  Court  has  considered  the  application  of

respondent No.1 in right perspective and has clearly

held that respondent No.1 failed to prove his title

by adverse possession, hence application deserves to

be rejected.  

28. High Court committed error in observing that in

application proceedings under Order XXI Rules 99, 100

and 101, the Court is not to decide such question.

Without  determination  of  right,  title  or  interest,

the  application  could  not  have  been  allowed.   We

having already extracted the observations of the High

Court,  where  it  clearly  held  that  the  title  in

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respect of the property by way of adverse possession

need not be gone into in the appeal before it.  The

above observation of the High Court was erroneous. In

the proceeding under Order XXI Rules 99, 100 and 101,

right, title or interest has to be determined and

without  establishing  right,  title  or  interest,  the

respondent No.1 cannot claim that he should be put

back  into  possession.   We  do  not  accept  the

submission of the learned counsel for the respondent

that  on  mere  fact  that  respondent  No.1  was  in

possession  of  the  premises  prior  to  being

dispossessed,  they  should  be  put  back  into

possession.  For putting back into possession, the

respondent No.1 was obliged to establish his title to

the property by adverse possession, without which, he

could not have asked the Court to put him back into

possession.  The High Court clearly erred in allowing

the  appeal  and  the  Executing  Court  has  rightly

rejected  the  application  filed  by  respondent  No.1.

We may further notice that suit No.211 of 1990 filed

by respondent No.1 seeking declaration of title to

the  property  by  adverse  possession  has  been

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subsequently dismissed by decree on 16.03.2009 and no

steps have been taken for restoration of the suit.

29. We do not find any error in the order passed by

the  Executing  Court  and  the  High  Court  committed

error  in  allowing  the  appeal,  directing  the

respondent No.1 to be put back into possession. In

view  of  the  foregoing  discussions,  we  allow  this

appeal and set aside the judgment of the High Court

dated  15.12.2009  and  restore  the  order  of  the

Executing Court dated 10.08.2004.  Parties shall bear

their own costs.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              (  NAVIN SINHA  )

New Delhi,  July 29, 2019.   

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