IMPORTANT POINT
Even though objector was not in actual and physical possession of vacant land but decree holder got its possession, he will have to be treated to have been dispossessed within the meaning of Order 21 Rule 99 of Code.

Headnote:(i) Civil Procedure Code, 1973-Order 21 Rule 99-Decree passed in a suit for specific performance on 8.11.1990 and decree holder respondent got possession of suit property an open plot on 5.9.1996-Appellant objector filed objections in executing Court claiming title in suit plot by registered sale deed executed in 1985, subsequent to agreement for sale dated 12.7.1984 under which respondent had claimed suit for specific performance-Whether objections could be said maintainable and appellant "dispossessed" of suit plot? Yes.
       Held : The High Court in the impugned judgment dated 23.4.2001 has construed the word "dispossessed" under Order XXI Rule 99 of the Code to mean actual and physical dispossession. The reasoning adopted is that if the expression `dispossessed is thus not narrowly construed, `anybody apprehensive of dispossession or anybody claiming right although not actually dispossessed can come within the purview of Rule 99 and there would be flood-gate and a decree holder who obtained a decree by due process of law would be frustrated in not getting the fruit of the decree . There is fallacy in the above reasoning. As has been held by this Court in the case of Brahmdeo Chaudhary (supra), a third party resisting or obstructing the execution of the decree can also seek adjudication of his rights under Order XXI Rule 97 in the same way as the Decree Holder. If that be so, it seems illogical that the third party which complains of actual dispossession because of the delivery of possession in execution to the Decree Holder should not be allowed to claim adjudication of his rights through the executing court. An interpretation of the provision which promotes or fulfils the object of the amended provisions of the Code of curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under Order XXI Rule 99 of the Code. From the trend and ratio of decisions of this Court surveyed above, if the Objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under Order XXI Rule 97. On the same legal position and reasoning even though the Objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree holder, lost their right and control over the land to put it to their use, they will have to be treated to have been "dispossessed" within the meaning of Order XXI Rule 99 of the Code. Such interpretation would fulfil aim and object of the amended provisions of the Code by allowing adjudication of disputes of title between the decree holder and the third party in the executing court itself without relegating them to an independent litigation. (Paras 26 and 27)
       (ii) Civil Procedure Code, 1908-Order 21 Rules 97 and 99-Third party who is resisting or obstructing the execution of decree can also seek adjudication of his claims and rights by making application under Rule 97 Order XXI CPC-Provisions are to be widely and liberally construed to enable executing Court to adjudicate the inter se claims of decree holder and third parties in executing proceedings to avoid prolongation of litigation by driving parties to independent suits. (Paras 19 to 21)

JUDGMENT

Dharmadhikari, J.-This appeal and the connected special leave petition arise out of the same execution proceedings and the impugned order dated 23.4.2001 passed by the High Court of Patna.

2. The principle question involved is whether a purchaser of a vacant land under registered Sale Deed and claiming to be in possession of the land can maintain an application under Order 21 Rule 97 of the Code of Civil Procedure complaining of his alleged dispossession in execution of the decree of specific performance of contract of sale obtained ex parte by the decree holder against the original owner of the suit property?

3. For the sake of easy understanding, the parties shall be described in their status in the executing proceedings as Decree Holder, Judgment Debtor and Objector. For the purpose of these appeals, we do not consider it necessary to go into greater details of the proceedings in the suit which resulted in passing of the decree of specific performance of the contract.

4. Bare facts necessary for the purpose of decision are as under :-

According to the decree holder, an Agreement of Sale was obtained on 12.7.1984 from the judgment debtor in respect of the suit lands which are now potential building sites on the outskirts of Patna city. The case of the decree holder is that when she filed the suit No. 22/87 against her vendors for specific performance of Agreement of Sale dated 12.7.1984, she was not aware that the Objectors had obtained title to the suit property by four separate sale deeds in the year 1985 and got them registered in Calcutta where the vendors resided. The purchasers were not made parties to the suit.

5. The case of the Objectors is that pursuant to the execution of the registered sale deeds, they obtained possession of the land and got their names mutated in the records of the Patna Municipality. According to them, they had no knowledge of any prior agreement of sale existing in favour of the Decree Holder.

6. The vendors did not contest the suit for specific performance of agreement of sale filed by the Decree Holder. An ex-parte decree of specific performance of contract was passed on 8.11.1990 in favour of the Decree Holder. The decree was put in execution by Decree Holder by depositing the balance consideration of sale in the court. A registered sale deed was executed by the court in favour of the decree holder as the judgment debtors absented despite notice and failed to execute it. According to the Decree Holder, on 5.9.1996, through the process issued by the executing Court, possession of the decreed property was obtained by the Decree Holder through Court Nazir without any obstruction or resistance from any one.

7. On 21.9.1996, the Objectors filed an application under Order XXI Rule 99 before the executing court complaining their illegal dispossession and seeking restoration of possession to them. It was urged that they were not parties to suit for specific performance of the contract and could not have been dispossessed in execution of the decree. Their case was that they had no knowledge of any alleged prior agreement in relation to the same property existing in favour of the Decree Holder. It was alleged that the suit for specific performance and the decree obtained ex-parte against the judgment debtors were collusive.

8. The application under Order XXI Rule 99 filed by the Objectors was opposed by the Decree Holder stating that with prior knowledge of the agreement of sale, the Objectors having obtained the sale deeds, the decree of specific performance can be executed against them in accordance with section 19(b) of the Specific Relief Act, 1963. Preliminary objection was also raised by the Decree Holder on the maintainability of application under Order XXI Rule 99 of the Code. It was urged that since the Objectors did not offer any resistance or obstruction to the execution of the decree and were not present at the time of its execution through court, they cannot be held to have been disposs

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2003 Supreme(SC) 1173

IMPORTANT POINTEven though objector was not in actual and physical possession of vacant land but decree holder got its possession, he will have to be treated to have been dispossessed within the meaning of Order 21 Rule 99 of Code.

Cases Referred (6)

IMPORTANT POINT
Even though objector was not in actual and physical possession of vacant land but decree holder got its possession, he will have to be treated to have been dispossessed within the meaning of Order 21 Rule 99 of Code.