IMPORTANT POINT
High Court s orders dismissing appellant s objections under Order 21 Rule 98 read with Rule 101 C.P.C., 1908 are based on a complete mis-reading of the case of the appellants and mis-conception of the legal position relevant in the matter hence the matter is remanded for fresh consideration in accordance with law.

Headnote:(i) Civil Procedure Code, 1908-Order 21 Rules 35 and 36, Order 21 Rules 97 to 103-Delivery of possession of immovable property in execution of a decree and matters relating thereto-Scope of provisions.
       Held : Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from "any person". From the provisions in these rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with "all issues" relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. (Para 15)
       (ii) Civil Procedure Code, 1908-Order 21 Rules 97 to 103-Dispute over immovable property-Contest between appellants and respondents-Respondents claiming under some decree-Holders in suit for partition of the suit property-Appellants claiming independent title-Objections filed by appellants in execution of said decree-Dismissed by High Court as non-maintainable-Appeal against to Supreme Court-Whether High Court was right? (No)-Appeal allowed-Case remanded to High Court for fresh consideration of the objection petitions filed by appellants in accordance with law-Case law referred to.
       Held : From the facts narrated in the impugned judgment it is clear that the appellants claimed to have become absolute owners of the land on the basis of their purchase of the same from the pattadarsmuch prior to the Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958 came into force. It was the further case of the appellants that they were in possession of the lands and had constructed pucca houses thereon. They contended that their right, title and interest in the property could not have been affected by the preliminary decree passed in C.S. No.14 of 1958 in which they were not parties. (Para 7)
       After referring to case law
       Held : From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructing the attempt by the decree-holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing Court it is dear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simplicitor. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned single Judge and the Division Bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Paigah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State Government under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the single Judge as well as Division Bench of the High Court, we are constrained to observe that the said orders are based on a complete mis-reading of the case of the appellants and mis-conception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a single Judge at the first instance. Accordingly, the appeals are allowed. The order dated 28th December, 1995 of the learned single Judge in C.S. No.14 of 1958 which was confirmed by the Division Bench in the order dated 10th November, 1998 in O.S.A. Nos. 10, 11, 18, 20/1996 and 35, 36 and 37 of 1998 (appealed from) is set aside and the matter is remitted to the High Court for fresh consideration of the petitions filed by the appellants and disposal in accordance with law. The matters shall be placed before a single Judge of the High Court other than the learned Judge who passed the order, at the first instance. The contesting respondents shall pay to the appellants a sum of a Rs. 10,000/- as costs of these appeals. (Paras 19 & 20)

JUDGMENT

D.P. Mohapatra, J.-Leave is granted in all the SLPs.

2. The judgment rendered by a Division Bench of the Andhra Pradesh High Court on 10th November, 1998 disposing of a batch of appeals filed under Clause 15 of the Letter Patent, against the judgment of a single Judge is under challenge in these appeals. Since common questions of fact and law were raised by the parties in all the cases the High Court disposed of the appeals by a common judgment. The dispute relates to a property extending over 196.20 guntas under Survey No. 172 of Hydernagar village. The contest is between two sets of transferees of the property, while the appellants claim to be transferees of holders of pattas issued in their favour by the Pygah Committee of Nawab Khurshed Jah Pygah, the respondents trace their title to transfers by some decree-holders in the suit. The objections filed by the appellants under Order 21 Rule 99 read with Rule 101 of the Civil Procedure Code (for shore the CPC ) having been dismissed by the High Court as non-maintainable, the appellants are before this Court assailing the judgment of the High Court.

3. The genesis of the proceedings leading to the present cases shorn of unnecessary details, may be stated thus: One Dildar Unnisa Begum filed OS No. 41/1955 in the City Civil Court, Hyderabad against the defendants for a decree of partition of the suit properties which according to the plaintiff were Matruka property of the late Nawab Khurshed Jan Pygah. The High Court transferred the suit to its file and on such transfer the suit was re-numbered as C.S. No. 14 of 1958. A preliminary decree was passed in the suit on 28th June, 1963 on the basis of the compromise entered into between the parties. No appeal having been filed against the preliminary decree it attained finality. The subject matter of the present proceeding is included as Item No. 38 of Schedule IV of the plaint. Item No. 38 corresponding to Survey No. 172 of Hydernagar village to an extent of 196 acres 25 guntas was allotted to plaintiff No. 2/defendants Nos. 27, 50, 51, 52, and 116 in the preliminary decree. In pursuance of the preliminary decree the High Court appointed a Commissioner for division of the property in terms of the decree.

4. M/s. M.S. Cyrus Investments Ltd. is stated to have purchased 50 shares of HEH Nizam who himself was a purchaser of certain shares from the original decree-holder and thus became defendant No. 206 in the suit. Subsequently, the said M/s. M.S. Cyrus Investments Ltd. assigned its assets in favour of M/s. Goldstone Exports and some others who are respondents herein. After the said assignment M/s. Goldstone Exports and others filed applications before the High Court for certain reliefs including delivery of possession of the property of their share and for mutation of their names in the revenue records. A single Judge of the High Court allowed the applications filed by M/s. Goldstone Exports and other assignees for being impleaded as defendants in the suit. Thereafter the applicants so impleaded as defendants in the suit filed E.P.No.3/96 seeking delivery of possession. A single Judge of the High Court by the order passed on 29th March, 1996 ordered delivery of possession of the property in favour of the applicants. The Bailiff appointed by the court is stated to have delivered possession of the property to the respondents.

5. The appellants tried to obstruct delivery of possession of the property to the applicants. The gist of their case was that the late Nawab Khurshed Jah Pygah administration had granted pattas in favour of several cultivators and supplementary sethwar was also issued, wherein the names of the pattadars were recorded. Since the supplementary sethwar had not been implemented the lands were erroneously shown as government lands. Subsequently, however the supplementary sethwar was implemented and their names were recorded as transferees of the property in the year 1980. Thereafter the pattadars entered into an

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2001 Supreme(SC) 1609

Cases Referred (3)