SUPREME COURT HOLDS THAT EXECUTION PETITION CANNOT BE DISMISSED AS INEXECUTABLE MERELY ON THE GROUND THAT DECREE HOLDER LOST POSSESSION TO AN ENCROACHER
In a recent case of Smt. Ved Kumari (Dead Through her Legal Representative) Dr. Vijay Agarwal Vs Municipal Corporation of Delhi Through its Commissioner, Civil Appeals No. 5409 – 5410 of 2023, a two Judge Bench of the Supreme Court comprising of Justice A.S. Bopanna and Justice Prashant Kumar Mishra passed a Judgment dated 24-08-2023 and observed that in the absence of resistance offered by any encroacher to the execution of a decree, the executing court cannot close / dismiss the execution proceedings by observing that the decree is inexecutable.
(i) In the present case, the Plaintiff, Smt. Ved Kumari had leased out a land measuring 400 sq. yds. out of Khasra No. 4/39/1 situated at village Khureji Khas, Abani Radheypuri, Ilaqa Shahdara, Delhi (Suit Property) within the limits of the Defendant-Municipal Corporation of Delhi, vide Lease Deed dated 06-01-1973, to the Defendant-Corporation for a period of 10 years and for a lease rent of Rs. 30 per month.
(ii) The Lease expired on 06-01-1983, whereafter, the Plaintiff served upon the Defendant a Notice dated 02-12-1987 seeking handing over of peaceful and vacant possession of the Suit Property on or before 06-01-1988. However, the Defendant failed to do so.
(iii) Aggrieved, the Plaintiff filed a Suit No. 205 of 1988 before the Ld. Sub-Judge, 1st Class, Delhi (Trial Court) seeking recovery of possession of the Suit Property from the Defendant.
(iv) The Trial Court, vide Order dated 23-03-1990, decreed the Suit in favor of the Plaintiff.
(v) Subsequently, the Plaintiff filed Execution Case No. 7 of 1991 before the Trial Court / Executing Court seeking execution of the Decree of Possession dated 23-03-1990 against the Defendant-Corporation.
(vi) The Plaintiff obtained Warrants for Delivery of Possession dated 03-12-1993 from the Executing Court against the Defendant.
(vii) However, when the Plaintiff along with the Police tried to execute the Warrants, they were resisted and intimidated by the Defendant-Corporation’s employees / agents. Hence, due to their high-handed behaviour, the Warrants for Delivery of Possession could not be executed.
(viii) Thereafter, the Defendant-Corporation filed an Application before the Executing Court seeking stay of operation of the Warrants for Delivery of Possession, which was allowed and the Execution Proceedings were stayed until 15-04-1994 on the ground that if the stay is not allowed, the demolition of school building on the Suit Property will adversely affect the career of around 400 students.
(ix) Later, the Plaintiff filed Application seeking issuance of fresh warrants of possession before the Executing Court. On the same day, the Defendant moved an Application for stay of the Execution Proceedings on the ground that the Corporation has undertaken land acquisition proceedings of the Suit Property, for which they have deposited Rs. 1,60,000/- with the Delhi Land Acquisition Commissioner.
(x) The Executing Court, vide Order dated 19-03-1999, dismissed the Defendant-Corporation’s Application on the ground that the Defendant had not made any serious efforts in the last 8 years to acquire the Suit Property and that the acquisition of the Suit Property can take place even after handing it over to the Plaintiff.
(xi) However, when the Defendant-Corporation failed to hand over possession of the Suit Property to the Plaintiff, the latter filed a Contempt Petition in CC No. 126 of 1999 before the Hon’ble High Court of Delhi against the Defendant-Corporation, alleging non-compliance of the Order of the Executing Court dated 19-03-1999.
(xii) The High Court, vide Order dated 20-02-2003, directed the Plaintiff that she may take recourse to such steps as may be permissible under the law for the Plaintiff to get the encroachers evicted.
(xiii) Meanwhile, the Plaintiff again obtained fresh Warrants of Possession from the Executing Court. Thereafter, the Defendant submitted certain Demarcation Reports dated 13-04-2001 and 24-07-2002 and again raised the issue of land acquisition of the Suit Property.
(xiv) The Executing Court, vide Order dated 11-09-2012, dismissed the Execution Petition filed by the Plaintiff on the ground that the encroacher(s) upon the Suit Property in question were not parties to the Suit and, therefore, the Decree for Possession of the Suit Property is not executable.
(xv) Aggrieved by the Executing Court’s Order dated 11-09-2012 of dismissal of Execution Petition, the Plaintiff filed a Revision Petition bearing R.P No. 152 of 2012 before the Delhi High Court, which was dismissed, vide Order dated 07-04-2016, on the ground that the Plaintiff, despite specific directions, had not taken any steps to get the encroacher(s) identified.
(xvi) Aggrieved by the High Court Order dated 07-04-2016, the Plaintiff filed a Review Petition bearing P No. 487 of 2016 before the Delhi High Court, which was dismissed, vide Order dated 04-11-2016.
Supreme Court Observations
Aggrieved by the Orders of the High Court dated 07-04-2016 and 04-11-2016, the Plaintiff through Legal Representatives, filed Civil Appeals No. 5409 – 5410 of 2023 before the Supreme Court. The Apex Court, vide Order dated 24-08-2023, made the following observations:
1) That the Decree dated 23-03-1990 passed by the Trial Court directing the Defendant to hand over possession of the Suit Property to the Plaintiff had attained finality.
2) Thereafter, during the Execution Proceedings, initially the Defendant’s stand was that the possession of the Suit Property was with the Defendant but the demolition of school building on the Suit Property would cause grave prejudice to students, therefore, instead of delivering the possession, the Defendant had initiated the process of acquiring the Suit Property. However, subsequently, on 18-09-2009, for the first time, the Defendant-Corporation informed the Executing Court that the Suit Property is not in their possession and that the same has been encroached upon.
3) That the Executing Court then directed the Defendant to disclose as to with whom the Suit Property presently lies and that when it will be handed over to the Plaintiff. Further, if at all the Suit Property has been encroached by a third party, as alleged by the Defendant, then the latter is liable to establish as to how the possession passed over to a third party, when it was admittedly earlier in possession of the Defendant. But the Defendant failed to respond properly to the Executing Court.
4) Furthermore, during the Execution Proceedings, no third party ever resisted the execution of the Decree and in fact, it was the Defendant’s employees who had obstructed the execution of the Warrants of Attachment.
5) Hence, the Bench observed that under Order XXI of the Code of Civil Procedure 1908 (CPC) (Execution of decrees and orders) Rules 97 to 103, the Executing Court has the authority to adjudicate the questions pertaining to right, title and interest in a property arising between parties including claims of strangers / third parties who apprehend dispossession from the property. This is to avoid multiplicity of proceedings.
6) Applying the aforesaid principles to the present case, the Bench observed that the Executing Court ought to have issued a warrant of possession for effecting physical delivery of the Suit Property to the Plaintiff and in the event any third party resists the execution of such warrant, the same to be adjudicated in accordance with Rules 97 to 101 of Order XXI of CPC.
7) Further, the Bench held as follows:
10…In the absence of such resistance, the Executing Court had no occasion to invoke Order XXI, Rules 97 to 101, at the instance of the decree holder or otherwise. Unless, this procedure is adopted, the Executing Court could not have closed the Execution Proceedings by observing that the decree is inexecutable.
Thus, based on the aforesaid observations, the Supreme Court held that the Executing Court could not have dismissed the Execution Petition by treating the Decree to be inexecutable merely on the ground that the Plaintiff-Decree Holder had lost possession to a third party / encroacher. If such an approach is allowed, then every judgment debtor would pass over / hand over possession of the property to a third party / stranger to defeat the decree holder’s right and entitlement in respect of such property.
Hence, the Apex Court directed the Executing Court to execute the Decree by effecting delivery of physical vacant possession of the Suit Property to the Plaintiff, in accordance with Order XXI CPC.
As a result, the Appeals filed by the Plaintiff were allowed and the High Court Orders dated 07-04-2016 and 04-11-2016 upholding the Order of the Executing Court dated 11-09-2012, thereby dismissing the Execution Petition, were set aside.
Generally Executing Courts have limited powers while executing a decree. However in this case the Court upheld that the Executing Court has the authority to adjudicate the questions pertaining to right, title and interest in a property arising between parties including claims of strangers / third parties who apprehend dispossession from the property. This is to avoid multiplicity of proceedings. The Apex Court finally did justice to a litigant who had fought for 34 years to recover her property.
The Indian Lawyer
Sushila Ram Varma
The Indian Lawyer