{"id":295730,"date":"2023-07-01T11:00:27","date_gmt":"2023-07-01T05:30:27","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=295730"},"modified":"2023-07-01T10:43:53","modified_gmt":"2023-07-01T05:13:53","slug":"rules-97-98-101-order-21-cpc-enable-executing-court-decide-inter-se-claims-parties-supreme-court","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/07\/01\/rules-97-98-101-order-21-cpc-enable-executing-court-decide-inter-se-claims-parties-supreme-court\/","title":{"rendered":"Rules 97, 98 and 101 of Order 21 of CPC enable Executing Court to adjudicate inter-se claims of decree holder and third parties: Supreme Court reiterates"},"content":{"rendered":"
\n

Supreme Court:<\/b> In a challenge against the Executing Court’s order finding the objections raised by the respondents maintainable during execution proceedings, the Division Bench of A.S. Bopanna and Dipankar Datta<\/b>*, JJ. upheld the same considering the already settled law mandating the Executing Courts to determine all questions arising between parties related to execution, discharge, or satisfaction of the decree, which may not be adjudicated in a separate suit.<\/p>\n

The Court started with Privy Council’s decision in The General Manager of the Raj Durbhunga, Under the Court of Wards<\/i> v. Maharajah Coomar Ramaput Singh<\/i>, (1871-72) 14 Moo IA 605<\/a> which highlighted that the difficulties of litigants in India begin when they have obtained a decree. It further brought in the case of Kuer Jang Bahadur<\/i> v. Bank of Upper India Ltd.<\/i>, 1925 SCC OnLine Oudh JC 217<\/a> which ruled against abuse of legal process by judgment-debtors to defraud creditors who had obtained decrees according to their rights. The Court said that years passed, but the Privy Council’s observation still holds true in this context.<\/p>\n

The Court supported the contention through Martin Burn Ltd.<\/i> v. Corpn. of Calcutta<\/i>, (1966) 1 SCR 543<\/a> wherein, it was held that a Court lacks power to ignore a provision to relieve an apparent distress resulting from its operation.<\/p>\n

The instant appeals by a mother-daughter duo challenged the impugned order dated 29-06-2018 passed by the Principal Sub-Judge wherein, an application under Section 47<\/a> read with Order 21 Rule 97<\/a> of Civil Procedure Code, 1908<\/a> (‘CPC’) was filed before the Executing Court seeking enforcement of decree dated 21-10-2000 and removal of resistance by the respondents. The Executing Court, through the impugned order, found several objections raised by the respondents maintainable and deemed it crucial for adjudicating them on merits after recording evidence.<\/p>\n

Factual Matrix<\/b><\/p>\n

The matter related to two sets of proceedings which were intertwined. The applicant mother instituted a suit against the defendant and his 3 sons for declaration of title of suit land measuring around 2.81 acres in her favour and recovery of possession along with mesne profits. It was alleged that the defendants being caretakers of the suit property wanted to purchase it from the applicant’s deceased husband, but the sale was not completed due to pending balance consideration, and meanwhile, the defendants constructed on the suit property. The defendants alleged to be tenants through oral lease agreement with the deceased and his brothers and were entitled to fixity of tenure under Kerala Land Reform Act, 1963 (‘KLR Act’).<\/p>\n

The Trial Court decreed in favour of the applicant mother on 21-10-2000 and defendants were directed to put her in possession of the suit property. The decree was challenged before the High Court and the same was modified by the High Court which required the applicant mother to deposit compensation of Rs 25,99,250, further enhanced to Rs 30 lakhs, but the decree was undisturbed.<\/p>\n

As per proceedings under KLR Act, the Land Tribunal issued a Purchase Certificate to the defendant conferring the status of a cultivating tenant. The applicant mother was put to notice but did not contest the proceedings. After obtaining the purchase certificate, some parts of the suit property were sold by the defendant to some of the respondents, who were also issued purchase certificates accordingly.<\/p>\n

In addition, the Executing Court accepted applicant’s prayer for delivery of suit property, appointed an Advocate Commissioner and issued directions for delivery of property within 10 days. The Commissioner’s report dated 23-06-2017 indicated objection by the respondents regarding delivery of possession, followed by filing multiple objections in the execution proceedings. In return, the applicants filed a petition under Article 227<\/a> of Constitution of India<\/a>, which followed by the Single Judge of High Court directing the Executing Court to consider the applicant’s contentions on objections filed by the respondents and decide accordingly. Thus, the Principal Sub-Judge passed the impugned order dated 29-06-2018.<\/p>\n

Instant Case<\/b><\/p>\n

The Court in the instant matter considered whether interference with a common order under appeal was called for. The Court pointed out that Section 47<\/a> of CPC<\/a> mandates executing Courts to determine all questions arising between parties related to execution, discharge, or satisfaction of the decree, which may not be adjudicated in a separate suit. It further stated that the intention behind conferment of exclusive jurisdiction upon the Executing Court is to prevent unnecessary litigation and achieve speedy disposal of such questions.<\/p>\n

The Court explained that in case of objections\/resistance against execution of a decree, provisions under Rules 97, 101 and 98 of Order 21 enable the Executing Court to adjudicate inter-se claims of decree holder and third parties to avoid prolonged litigation in independent suits. The Court relied on Brahmdeo Chaudhary<\/i> v. Rishikesh Prasad Jaiswal<\/i>, (1997) 3 SCC 694<\/a> and Asgar<\/i> v. Mohan Varma<\/i>, (2020) 16 SCC 230<\/a> which according to the Court held Rules 97 to 106 of Order 21 of CPC<\/a> to be a complete code in itself. It further referred to a catena of cases including Bhanwar Lal<\/i> v. Satyanarain<\/i>, (1995) 1 SCC 6<\/a> empowering Executing Court to conduct an enquiry to explore whether the obstruction by a person during execution of a decree was legal or not.<\/p>\n

The Court concluded that “the ordainment of Rule 102 of Order 21, Rules 98 and 100 would not apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed.”<\/p>\n

The Court observed that the decree passed on 21-10-2000 upheld by the High Court with minor modification would not justify throwing out the objections raised by respondents for being devoid of merit. It further brought in the purchase certificates in favour of defendant and then respondents which also needed to be examined by the Executing Court. The Court said that “Since evidence is required to be led before it, the Executing Court was well-nigh justified in holding the objections to be maintainable at this stage not in the sense that the decree cannot be executed against them but in the sense that a prima facie case had been set up for an enquiry to be conducted, and posting the matter for evidence to be led by the parties.”<\/p>\n

The Court also agreed with the argument that rather than jumping towards the Supreme Court, the applicants should have approached the High Court. The Court expressed that “The power to grant leave under Article 136 itself being discretionary, this Court would not allow a party invoking the ‘special leave’ jurisdiction to bypass the remedy available at the level of the High Court without the two situations being satisfied.”<\/p>\n

The Court refused to interfere with the impugned order and upheld the same, dismissing the appeals. The Court directed the Executing Court to proceed with application under Rule 97 of Order 21<\/a> of CPC<\/a> with the objections raised by respondents on merit and within 18 months, if possible, since the applicants have been deprived of fruits of decree for more than 2 decades.<\/p>\n

[Jini Dhanrajgir v. Shibu Mathew, 2023 SCC OnLine SC 643<\/a>, decided on 16-06-2023<\/span>]<\/p>\n

Judgment authored by: Justice Dipankar Datta<\/span><\/strong><\/p>\n

Know Thy Judge| Justice Dipankar Datta<\/a><\/p><\/blockquote>\n