The Executing Court must dispose of objections under Order 21, Rule 97 CPC before issuing a writ of possession.

Manoj Kumar Gupta, J.

Respondent No. 1 obtained a decree for possession in a suit filed by him and it was put to execution vide Executing Case No. 1 of 2013. While the execution was pending, respondent No. 1 approached this Court by way of an application under Article 227 bearing No. 2616 of 2014 for a direction to the Executing Court to expedite the execution proceedings. The petition was disposed of by an order dated 13 October 2014 with the following directions: -

"Having regards to the nature of the dispute and age of the petitioner it is expected that the execution court shall proceed expeditiously and seek enforcement of judgment and decree passed in favour of the petitioner in accordance with law and without granting any unnecessary adjournment.

The writ petition is accordingly disposed of."

2. The Executing Court, after taking notice of the order of this Court, passed an order on 13 March 2015, which is to the following effect: -

"Called out. DH through Ld counsel appeared. Misc. Case 41/13 is pending before this court which needs to be disposed of first. Put up on 17-3-17 for F.O."

3. Misc. Case No. 41 of 2013, referred to above in the order of the Executing Court dated 13 March 2015 was registered on the basis of an application filed by the petitioner purportedly under Order 21, Rule 97, 99 & 103 read with section 151 CPC. However, the Executing Court without deciding the objections filed by the petitioner under Order 21, Rule 97 CPC, on a subsequent date i.e. 20 March 2015 issued a writ of possession to the Court Amin. It seems that in pursuance of the said order, the formal possession of the suit property had been delivered to the decree holder. The articles found in the premises were not removed, but were given in the superdgi of the Manager of the judgment debtor. At this stage, the petitioner, who is the third party objector, having filed objections under Order 21, Rule 97 & 99 CPC, made an application before the Executing Court for staying the execution proceedings until the decision on her objections. By the impugned order, the Executing Court rejected the application filed by the petitioner being of the opinion that it is bound to comply with the directions given by this Court.

4. Learned counsel for the petitioner submitted that once the objections under Order 21, Rule 97 & 99 are pending, it is incumbent upon the Executing Court to dispose of the objections before issuing a writ of possession. In support of his contention, he has placed reliance on the judgment of the Supreme Court in the case of Brahmadev Chaudhary Versus Rishikesh Prasad Jaiswal, AIR 1997 SC 856 , wherein, it is held as under: -

“Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree holder the remedy available to the decree holder against such an obstruction is only Order XXI, Rule 97 sub-rule (1) and he can not by pass such obstruction and insist on re-issuance of warrant for possession under Order XXI. Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI. Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99 CPC and pray for restoration of possession.”(emphasis supplied)

5. He has also placed reliance on another judgment of the Supreme Court in the case of Anwarbi Versus Pramod D.A. Joshi, (2000) 10 SCC 405 , wherein, the Supreme Court has held that once the decree is obstructed by a third party by moving an application under Order 21, Rule 97 CPC, then he cannot be dispossessed till his rights are adjudicated in the execution proceedings. It is submitted that this Court while pas