IMPORTANT POINT
A stranger occupying decretal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor qua such property can request the executing court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI Rule 99 Code of Civil Procedure.

Headnote:Civil Procedure Code, 1908-Order XXI, Rules 97 to 99 and 101-Execution of decree for possession-Resistance offered by a stranger to the decree-Proper procedure required to be followed by decree holder is the one contemplated by Order XXI Rule 97-Words any person as contemplated by Order XXI Rule 97 sub-rule (1) are comprehensive enough to include apart from judgment debtor, total strangers to the decree-Dispute to be adjudicated upon as enjoined by Order XXI Rule 97 sub-rule (2)-Decree holder cannot bypass such obstruction-Application for re-issuance of warrant for possession under Order XXI Rule 35 with the help of police force-Not maintainable-High Court committed error in holding that stranger s only remedy was to move an application under Order XXI Rule 99 after handing over possession-Patent breach of principles of natural justice. (Paras 4 and 5)

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

A stranger occupying decretal premises in his own right and resisting the execution of a decree can request the executing court to adjudicate upon his resistance and obstruction without the necessity of first handing over possession and then applying under Order XXI Rule 99 CPC (!) (!) .
The proper procedure in case of resistance by a stranger is under Order XXI Rule 97 CPC, which mandates that the court must adjudicate upon the resistance or obstruction before proceeding further (!) .
The words "any person" in Order XXI Rule 97 CPC are comprehensive enough to include strangers to the decree, not just judgment debtors or those claiming through them (!) .
Resistance or obstruction offered by a person claiming independent rights in the property, who is not a judgment debtor, falls within the scope of Order XXI Rule 97, and such resistance must be adjudicated upon before dispossession (!) (!) .
The application seeking police aid for the removal of obstruction cannot bypass the procedure laid down in Order XXI Rule 97 CPC; it must follow the adjudication process under that rule (!) .
The remedy for a stranger who has been dispossessed before having the chance to resist or claim rights is under Order XXI Rule 99 CPC, which allows such a person to file an application claiming illegal dispossession and seeking restoration of possession (!) .
The statutory scheme of Order XXI Rules 97 to 103 provides a complete code for resolving disputes related to execution of decrees for possession, including resistance by strangers (!) .
The court must follow the prescribed procedure when a resistance or obstruction is encountered, including adjudication on merits, to avoid breach of natural justice principles and ensure a fair hearing for all parties involved (!) (!) .
The remedy for a stranger claiming rights in the property and resisting execution is available at the stage of resistance, prior to actual dispossession, and not only after losing possession (!) .
The court must consider objections and claims of a stranger to the decree on merits before dispossession, following the statutory procedure, rather than dismissing them as premature or directing a separate application under Rule 99 (!) .
The statutory provisions aim to prevent arbitrary dispossession and ensure that objections based on independent rights are adjudicated properly within the execution proceedings (!) .
The court must decide upon the resistance or claim of the stranger within a reasonable timeframe, especially given the age of the decree and pending proceedings, to prevent unnecessary delays (!) .
The appellate court emphasized that the existing legal framework provides adequate procedures for resolving resistance and objections during execution, and these procedures must be followed to uphold principles of justice and fairness (!) .
The order of the executing court and the High Court dismissing the objections of the stranger and directing only a subsequent application under Rule 99 was found to be improper, and the proceedings were remanded for proper adjudication under Order XXI Rule 97 (!) .
The sole surviving obstructionist in the case was the appellant, and the court directed that only his claim and objections be considered in the remanded proceedings (!) .
The court emphasized the importance of adjudicating objections on merits before dispossession to avoid violations of natural justice and to ensure fair opportunity for all parties (!) .
The appeal was allowed, and the proceedings were remanded to the lower court for re-evaluation of the application under the correct procedural provisions, ensuring that the resistance by the appellant is properly adjudicated (!) .

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JUDGMENT

S.B. Majmudar, J.-In this appeal by special leave the appellant has posed a short question for our consideration. It runs as under :

"Whether the appellant who claims to be a stranger, occupying decretal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree-holder against the judgment-debtor qua such property can request the Executing Court to adjudicate upon his resistance and obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI Rule 99 Code of Civil Procedure ( CPC for short) ?"

The High Court agreeing with the Executing Court has negatived the aforesaid request of the appellant by holding that such stranger to the decree who has put forward his obstruction in the execution proceedings has the only remedy under Order XXI Rule 99, CPC after his obstruction is first removed and he is dispossessed of the premises. This Court granted special leave to appeal to the appellant under Article 136 of the Constitution of India and granted stay of dispossession by its order dated 17th September 1996. Shri Sanyal, learned senior counsel for the appellant has raised a serious grievance against the aforesaid view of the High Court.

2. For resolving the aforesaid controversy between the appellant on the one hand and respondent No. 1 decree-holder on the other a few introductory facts deserve to be noted at the outset.

Respondent No. 1 filed an Eviction Suit No. 54 of 1988 in relation to six and a half dhurs of the suit land against respondent No. 2 and his mother Bachani Devi. A decree was passed in favour of respondent No. 1 against the judgment-debtor respondent No. 2 in 1988 by the Court of Munsif II, Munger. Respondent No. 1 filed execution proceedings in 1990 against respondent No. 2 judgment-debtor. These proceedings were registered as Execution Case No. 25 of 1990. On 25th April 1991 respondent No. 1 decree-holder obtained warrant for delivery of possession from the Executing Court against respondent No. 2. When the bailiff went on spot to execute the warrant on 28th April 1991 he was resisted by the present appellant as well as his brothers Sitaram Choudhary and Jago Choudhary along with 20-25 persons and because of the resistance offered by them and on account of abuses and throwing of bricks and stones indulged into by them it was impossible to execute the warrant for possession. Under these circumstances the decree-holder by his application dated 6th May 1991 requested that help of Magistrate and armed force be made available at his cost for execution of the decree. It appears that the said application remained lingering on the file of Executing Court for number of years and ultimately the Executing Court directed execution of the warrant for possession by affording help of police force to the decree-holder. It was at that stage that the present appellant filed a written application on 22nd January 1996 before the Executing Court to stay operation of the said warrant and to decide his objections. By a rejoinder dated 1st February 1996 respondent No. 1 decree-holder raised the question of maintainability of such an application before handing over actual possession to the decree-holder. The Executing Court without adjucating upon the objections of the appellant on merits and without deciding whether the obstruction or resistance offered by him was legally justified or not dismissed the appellant s application dated 22nd January 1996 by order dated 15th February 1996. The Executing Court took the view that the remedy of the appellant was to move an application under Order XXI Rule 99, CPC only after he was dispossessed and as that stage was not still reached the request of the appellant to adjudicate his claim could not be entertained. It is this order of the Executing Court which has come to be confirmed by the High Court of Judicature at Patna by the impugned order dated 17th May 1996.

3. In the

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1997 Supreme(SC) 95

Cases Referred (1)