1994 Supreme(SC) 1008

SUPREME COURT OF INDIA
K. Ramaswamy and N. Venkatachala, JJ.
Civil Appeal No. 7466 of 1994
Decided On: 06.10.1994
Noorduddin Appellants
Vs.
Dr K.L. Anand Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: B.D. Sharma, Adv.
For Respondents/Defendant: Rajiv Sawhey, Senior Adv., Sanjeev Anand, R.P. Wadhwani and Kajol Chandra Advs.

Headnote:

Civil Procedure Code,1908 - Order 21 - Rules 90(15),97,97(1),98, 100,101,103,104 - Section 151 - Displaced Persons (compensation and Rehabilitation) Act, 1954 - Section 20 - Application - Whether executing court and High Court had properly appreciated scheme under Order 21, Rule 97 and declined to entertain and adjudicate claim of appellant? - Properties bearing were confirmed in favour of respondent - Challenged said sales in Delhi High Court contending that properties sold pursuant to declaration of those properties being evacuee on February were not in fact correct they had interest in sold properties and that therefore sale made in favour of respondent was illegal - Writ petition came to be dismissed by Single Judge which was affirmed by Division Bench by order - That order had become final - Therein though Nanu was impleaded as respondent no relief of any sort was claimed against him nor any finding adverse to him in that behalf was recorded - In meanwhile respondent had filed Suit in District Court Delhi against for possession of properties bearing as indicated hereinbefore - Though suit was dismissed on appeal Division Bench of Delhi High Court decreed suit for possession and decree had become final - Therefore now in execution respondent sought to take possession of properties in - Resisting execution and delivery of possession appellant made an application under Order 21, Rules 97 and 98 read with Section 151 of CPC contending that his father and members of his family had not migrated to Pakistan though Custodian had declared certain ancestral properties to be evacuee properties of which were later sold to respondent under has obtained collusive decree against others land was not demarcated land bears and in accordance with it is in his possession as an owner by virtue of his share in ancestral property separated by competent authority which never vested in custodian nor it is sold to respondent - Whether executing court was right in dismissing application on ground that dispute was adjudicated in - Question whether property in is part of and if so whether respondent while executing decree tranched into his property and sought to dispossess him - Appellants possession pending adjudication needs to be protected by interim orders - Whether is part of or independent of latter - Whether is part of and if not whether in executing decree respondent is entitled to take possession of Survey - Held, Parliament intended to shorten litigation and to give effect to it simplified procedure was devised for adjudication - On basis of fact-situation and nature of controversy claim has to be adjudicated expeditiously in a period not exceeding six months and - Orders of courts below are accordingly set aside - Matter is remitted to executing court to go into question raised by appellant - In nature of dispute a Commissioner may be appointed by court by issuing a warrant to demarcate respective properties in and as claimed by appellant to find whether is part of or independent of latter - From averments in S.L.P. as well as in petition filed before executing court appellant had not made claim in respect of - Therefore question of going into boundaries and extent of land covered by sale certificates which have become final cannot arise - As stated earlier only limited question is whether is part of and if not whether in executing decree respondent is entitled to take possession of - Court is enjoined to adjudicate upon right title and interest churned in property arising between parties to a proceeding or between decree-holder and person claiming independent right title or interest in immovable property and an order in that behalf be made - Determination shall be conclusive between parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit- In other words no other proceedings were allowed to be taken - It has to be remembered that preceding CPC Amendment Act right of suit under Order 21, Rule 103 of Code was available which has been now taken away - By necessary implication legislature relegated parties to an adjudication of right title or interest in immovable property under execution and finality has been accorded to it - Scheme of Code appears to be to put an end to protraction of execution and to shorten litigation between parties or persons claiming right title and interest in immovable property in execution - It may be open to respondent to make an application to executing court to appoint a Commissioner for demarcating respective properties and for submitting a report and plan in that behalf according to rules - Executing court is directed to dispose of this application within a period of six months from date of receipt of this order - Appeal Allowed