SUPREME COURT HOLDS RESPONDENTS-THIRD PARTIES ENTITLED TO RAISE OBJECTIONS AGAINST ENFORCEMENT OF A DECREE IN EXECUTION PROCEEDINGS
In a recent case of Jini Dhanrajgir & Anr vs Shibu Mathew & Anr. etc, Civil Appeal Nos. 3758 – 3796 /2023 and other connected matters, a two Judge Bench of the Supreme Court comprising of Justice A.S. Bopanna and Justice Dipankar Datta passed a Judgment dated 16-05-2023 and observed that third parties may raise objections in an execution petition in respect of a decree for recovery of possession of an immovable property, under Order 21 Rule 97 of the Code of Civil Procedure 1908 (CPC) (Resistance or obstruction to possession of immovable property).
i) In the present case, one, Mrs. Cherian (Plaintiff) had instituted OS No. 28 / 1987 in the Court of the Ld. Principal Sub-Judge, Kottayam, Kerala (Trial Court) against one, Mr. V.T. Mathew (Defendant No. 1) and his sons, i.e. Mr. Thomas Mathew (Defendant No. 2) and Mr. Abraham Mathew (Defendant No. 3) and the Defendant No. 1’s assistant, Mr. K.T. Joseph (Defendant No. 4) seeking (a) declaration of title of the Plaintiff in respect of land measuring in excess of 2.81 acres in Village Nattakom, Kottayam, Taluk, Kottayam District, Kerala (Property) and (b) recovery of possession with mesne profits from the Defendants, who were the tenants in respect of the Property at that point of time by virtue of an oral Lease Agreement executed between the Plaintiff’s Husband and the Defendants.
ii) The Plaintiff contended that the Defendants intended to purchase the Property from the Plaintiff’s Husband, but the sale could not be completed, as the Defendants failed to pay the full consideration.
iii) The Trial Court referred the matter to the Land Tribunal under Section 125 (3) of the Kerala Land Reform Act, 1963 (Act) (Bar of jurisdiction of civil courts).
iv) The Land Tribunal in RC No. 84 / 1988 held that the Defendant No. 1 was a cultivating tenant at the Property and hence, he is entitled to protection under the Act.
v) Based on the said observations of the Land Tribunal, the Trial Court dismissed the Suit filed by the Plaintiff, vide Order dated 16-11-1989.
vi) Aggrieved by the Trial Court Order dated 16-11-1989, the Plaintiff filed S. No. 27 / 1991 before the High Court of Kerala.
vii) Meanwhile, the Land Tribunal issued a Purchase Certificate to the Defendant No. 1 in the proceedings under the Act in M. No. 107 / 1992 on 23-01-1993, whereby, he was conferred the status of a cultivating tenant. The same was not contested by the Plaintiff at that point of time. Thereafter, the Defendant No. 1 sold off the Property to some of the Respondents, i.e. Mr. Shibu Mathew, etc. Accordingly, such Respondents were also issued Purchase Certificates in respect of the said Property, during the intervening period between filing of the aforesaid OS No. 28 / 1987 and passing of decree of possession in 2000.
viii) In the meantime, during the pendency of the proceedings before the High Court in S. No. 27 / 1991, the Defendant No. 1 passed away and the Defendants No. 2 and 3 continued with the proceedings.
ix) The High Court allowed the Appeal filed by the Plaintiff, vide Order dated 18-12-1998, and remanded the matter back to the Trial Court.
x) Aggrieved by the High Court Order dated 18-12-1998, the Defendants filed CMA No. 34 / 1999 before the Division Bench of the High Court, which was dismissed, vide Order dated 13-12-1999 on the ground that the Defendant No. 1 had been only a caretaker of the Property, so he is not entitled to a fixed tenure for cultivating the land under the provisions of the aforementioned Act.
xi) Thereafter, the Trial Court passed an Order dated 21-10-2000 (Decree) in favor of the Plaintiff and the Defendants were directed to put the Plaintiff in possession of the Property.
xii) Aggrieved by the Decree, the Defendants No. 2 and 3 filed a Petition in the Appeal Suit bearing S. No. 219 / 2001 before High Court.
xiii) The High Court, vide Order dated 11-02-2014, partly allowed the Appeal filed by the Defendants and modified the Decree to the extent that the Plaintiff was directed to deposit Rs. 25,99,250.00 as compensation in lieu of part-payment of the purchase price earlier paid by the Defendant No. 1 to the Plaintiff’s Husband. Thereafter, the Defendants No. 2 and 3 would surrender the vacant possession of the Property to the Plaintiff.
xiv) Aggrieved with the quantum of compensation, the Defendants No. 2 and 3 filed L.P. (C) No. 24344 / 2014 before the Supreme Court.
xv) The Apex Court, vide Order dated 11-02-2014, marginally enhanced the compensation to Rs. 30,00,000.00 payable by the Plaintiff and directed the Defendants to handover possession of the Property to her, after receipt of the said enhanced compensation amount.
xvi) Thereafter, the Plaintiff’s Daughter and Son, i.e. the Appellants herein, filed P. No. 379 / 2012 before the Court of the Ld. Principal Sub-Judge, Kottayam (Executing Court), seeking delivery of possession of the Property.
xvii) The Ld. Executing Court, vide Order dated 27-05-2017, allowed the Execution Petition and appointed an Advocate Commissioner and thereby, issued directions to deliver possession of the Property to the Plaintiffs within 10 days of the said Order.
xviii) The Commissioner filed his Report on 23-06-2017 and informed the Executing Court that the Respondents, who had purchased the Property from the Defendant No. 1, have filed their Objections under Order 21 Rule 97 of CPC in respect of (a) the delivery of possession of the said Property to the Appellants and (b) the execution of the Decree.
xix) Aggrieved, the Appellants approached the High Court, which directed the Executing Court, vide Order dated 05-04-2018, to take into consideration both the Appellants’ contentions as well as the Respondents’ Objections and to decide the matter on or before 30-06-2018.
xx) The Executing Court passed an Interim Order dated 29-06-2018 and observed that the Respondents’ Objections are maintainable and deemed it to be necessary to adjudicate the same on merits, after due recording of evidence.
Supreme Court Observations
Aggrieved by the Interim Order dated 29-06-2018 passed by the Executing Court, the Appellants filed Civil Appeal Nos. 3758 – 3796 / 2023 before the Supreme Court. The Apex Court passed a Judgment dated 16-05-2023 and observed as follows:
1) That Section 47 CPC (Questions to be determined by the Court executing decree) mandates that an executing court has to determine all questions arising between the parties to a suit or their representatives in the execution proceedings and that such questions may not be adjudicated in a separate suit, in order to avoid unnecessary litigations and to ensure speedy disposal of such questions arising in relation to the execution or satisfaction of the decree.
2) Further, if any objections are raised against execution of a decree, then Order 21 Rule 97 CPC, 98 CPC (Orders after adjudication) and 101 CPC (Question to be determined) enable the executing court to adjudicate the claims of the decree holder and the third parties in the execution proceedings itself. The Bench further observed that “it has been noted that Rules 97 to 103 of Order XXI provide the sole remedy both to parties to a suit as well as to a stranger to the decree put to execution.”
3) Hence, the Executing Court, in the present case, is also bound to inquire into the objections raised by third parties i.e. Respondents under Order 21 Rule 97 CPC, to adjudicate the same under Order 21 Rule 101 CPC and thereafter, to proceed in the manner mandated by Order 21 Rule 98 CPC.
Thus, based on the aforesaid observations, the Supreme Court, vide Judgment dated 16-05-2023, (a) held that the Executing Court rightly observed that the Objections raised by the Respondents have to be considered on merits in the execution proceedings and (b) further, directed the Executing Court to conclude the matter within 18 months of the said Judgment. As a result, the Interim Order dated 29-06-2018 passed by the Executing Court was upheld and the Appeal filed by the Appellants was dismissed.
The Indian Lawyer
 Order 21 Rule 97 CPC- 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 upon the application in accordance with the provisions herein contained.