Executing Court cannot hold execution decree inexecutable, merely because decree-holder lost possession to an encroacher: Supreme Court

dismiss execution petition

Supreme Court: In appeals against judgment and orders dated 7-04-2916 and 4-11-2016 passed by the Delhi High Court affirming the order passed by Executing Court holding that the decree for possession of immoveable property was not executable against the judgment-debtor, Division Bench of B.V. Nagarathna and Prashant Kumar Mishra*, J. reiterated that the Executing Court could not hold execution decree as inexecutable merely for the reason that the decree-holder lost possession of decretal land to a third party or encroacher, and that it must adjudicate resistance to delivery of possession as per Order XXI Rules 97 to 101 of Civil Procedure Code, 1908 (‘CPC').

Factual Matrix

The appellant being the original plaintiff leased out a land through lease deed dated 6-01-1973 to the Municipal Corporation of Delhi (‘MCD'), initially for a period of 10 years with a monthly rent of Rs 30 and the lease was not renewed after expiry on 6-01-1983. The appellant served a notice upon MCD on 2-12-1987 to hand over the peaceful vacant possession of the Suit Land on or before 6-01-1988, but MCD did not turn on the appellant's demand.

The suit for recovery of possession of suit land against MCD before the Sub-Judge, First Class was decreed in favour of the appellant on 23-03-1990. During execution proceedings, the appellant succeeded and obtained warrants for delivery of possession against MCD from the Executing Court on 3-12-1993. When the appellant along with the police force went on the spot to execute the warrants, the same could not be executed since due to resistance.

At this time, MCD moved an application before the Executing Court for staying the operation of warrants for delivery of possession that were issued earlier, which was stayed until 15-04-1994 considering the fact that the demolition of school building upon the decretal land may affect career of around 400 students. MCD's application for staying execution was dismissed by the Executing Court while highlighting that the MCD did not make any serious efforts to acquire the decretal land in 8 years, and that the acquisition could take place even after the land was handed over to the appellant.

On MCD's further refusal to hand over the decretal land to the appellant, a Contempt Petition was filed before the Delhi High Court which led the Court to issue directions, keeping it open for the appellant to take recourse as per law for getting the encroachers evicted. Disposal of Contempt Petition also led to issuance of warrants for possession of decretal land and demarcation reports were also submitted by the appellant.

Based on demarcation reports so submitted, the Executing Court dismissed the Execution Petition on the ground that the encroachers upon the land in question were not party to the suit, and thus, the decree could not be executed. Revision Petition preferred before the High Court was also dismissed vide order dated 7-04-2016 and the Court held that the appellant did not take any steps to get the encroachers identified despite specific directions. Review petition against the same also could not succeed, hence the instant appeals.

Court's analysis of resistance to delivery of possession in execution

The Court discussed that the Trial Court categorically held the MCD as lessee and it was bound to deliver physical vacant possession of the suit land and pay the rent, and the appellant was entitled to a decree of ejectment and delivery of vacant possession by the MCD, who was also directed to hand over the possession of suit land after removing the construction, since the decree attained finality. It further highlighted that it was for the first time on 18-09-2009 when MCD informed of not being in possession and the same was encroached upon and further stands of MCD were also questioned by the Executing Court, while no resistance was offered against the decree by any purported stranger/encroacher.

The Court clarified that while the decree was not resisted by anyone, the Executing Court could not invoke Order XXI, Rules 97 to 101 at the instance of decree-holder and closed the execution proceedings with the observation that the decree was not executable.

The Court referred to Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 wherein, it was observed that “Order XXI of CPC laid down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather.”

The Court further discussed the execution proceedings under Order XXI Rules 97 to 103 of CPC and the authority of Executing Court with reference to Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6, Shreenath v. Rajesh, (1998) 4 SCC 543, Sameer Singh v. Abdul Rab, (2015) 1 SCC 379 and Jini Dhanrajgir v. Shibu Mathew, 2023 SCC OnLine SC 643.

Court's Decision

Based on the legal position, the Court stated that the Executing Court was duty bound to issue warrant of possession for effecting physical delivery of the suit land, and in case of resistance offered by any stranger to the decree, adjudication of the same in accordance with Order XXI Rules 97 to 101 of CPC. t further clarified that the Executing Court could not dismiss the execution petition holding the decree as inexecutable, merely on the basis that the decree-holder lost possession to a third party/encroacher. The Court was cautious that “If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder's right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.”

Therefore, the Court set aside the judgment and orders passed by the High Court and Executing Court and directed the Executing Court to execute the decree by effecting delivery of physical vacant possession to the appellant in accordance with the provisions contained in Order XXI of CPC.

[Ved Kumari v. Municipal Corporation of Delhi, 2023 SCC OnLine SC 1065, Decided on 24-08-2023]

Judgment authored by: Justice Prashant Kumar Mishra

Advocates who appeared in this case :

Senior Advocate Gopal Sankaranarayanan, Advocate on Record Senthil Jagadeesan, Advocate Adit S Pujari, Advocate Maitreya Subramaniam, Advocate Mantika Vohra, Advocate on Record Praveen Swarup, Advocate Devesh Maurya, Advocate Payal Swarup, Advocate Chander Shekher Malhotra, Advocate Vivek Verma, Advocate Hari Sahteshwar

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