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2026 Supreme(All) 813
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SANDEEP JAIN, J.
Poonam Pandey and Another – Appellants
Versus
Kulsum and Others – Respondents
First Appeal No. 306 of 2026
Decided On : 23-04-2026
For the Appellants : Arpit Malviya, Awadhesh Kumar Malviya
An executing court must adjudicate the independent rights of a third-party objector under Order 21, Rule 97, regardless of whether they have been dispossessed. However, the applicant must demonstrate a prima facie claim; otherwise, the court may dismiss the objection as frivolous or mala fide.
Headnote:(A) Civil Procedure Code, 1908 - Order 21, Rules 97, 98, 99, 101, 103 - Execution of decree for possession - Obstruction by third party - Whether third party can challenge execution prior to being dispossessed - Held, yes - Executing court is required to adjudicate upon the claim of independent right, title, or interest under the statutory scheme - Dismissal of such application on ground of non-maintainability due to lack of actual dispossession is erroneous and legally unsustainable. (Paras 14, 16)
(B) Civil Procedure Code, 1908 - Execution proceedings - Burden of proof - Third party claimant must demonstrate a prima facie independent right, title, or interest to resist execution - Where the application is found to be mala fide, collusive, or lacking in substantive documentary proof, the court may dismiss the objection without ordering a full-fledged trial to avoid abuse of process and ensure realization of fruits of the decree. (Paras 17, 20, 23)
Facts of the case:
The appellants filed an application under Order 21, Rules 97 and 99 of the Civil Procedure Code, claiming independent ownership of the disputed property as legal heirs and asserting that the decree obtained in the original suit was collusive and not binding upon them as they were not parties thereto. The executing court dismissed the application on the ground of maintainability, ruling that since the appellants had not yet been dispossessed, they had no standing to file the application. The appellants challenged this order in appeal.
Findings of Court:
The High Court held that the trial court’s rejection of the application on the ground of maintainability was legally flawed. The Court affirmed that an objector does not need to wait until they are dispossessed to approach the executing court for an adjudication of their independent rights. However, upon examining the merits, the Court found that the appellants failed to provide any documentary evidence to substantiate their claim of ownership or independent interest in the property. The Court concluded that the application was a collusive attempt to delay the execution proceedings.
Issues: The main issues were whether an application under Order 21, Rules 97 and 99 is maintainable by a third party prior to their actual dispossession, and whether the appellants successfully established a prima facie independent right, title, or interest in the property to warrant the obstruction of the decree execution.
Ratio Decidendi: The court ruled that while the statutory scheme of Order 21 allows a third party to seek adjudication of their independent rights in the property before or after dispossession, the court is not obligated to entertain the application if the claimant fails to demonstrate a prima facie case; where a claim is found to be unsubstantiated and meant to frustrate the execution, it must be dismissed to prevent the abuse of procedural laws and ensure the timely enforcement of the decree.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. procedural background and history of the current execution appeal. (Para 1 , 2 , 3) |
| 2. appellant's claim of independent ownership and non-binding nature of previous decree. (Para 4 , 5) |
| 3. historical factual overview of the original suit, the execution, and the impugned order. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 4. interpretation of order 21 rules 97 and 99 regarding the maintainability of obstructionist applications and the requirement of dispossession. (Para 14 , 15 , 16) |
| 5. evaluation of merit regarding the appellant's claims, lack of evidence, and failure to assert rights during the original trial. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 6. final outcome and dismissal of the appeal at the admission stage. (Para 24 , 25 , 26) |
JUDGMENT :
SANDEEP JAIN, J.
1. Supplementary affidavit filed is taken on record.
2. The instant appeal has been filed by the appellants under Order 21 Rule 103 C.P.C. challenging the impugned order dated 06.01.2026 passed by the Court of Civil Judge (Senior Division)/Fast Track Court, Ghazipur in Misc. Case No. 57 of 2023 ( Poonam Pandey and others vs. Nizamuddin and others ), whereby appellants' application under Order 21 Rule 97 and 99 C.P.C. was rejected on the ground that it was not maintainable.
3. Earlier, the appellants had preferred a writ petition being Matters Under Article 227 No. 2578 of 2026 ( Smt. Poonam Pandey and another vs. Kalrun and others ) before this Court, which was disposed of by order dated 25.02.2026 on the ground that it was not maintainable since the impugned order was a decree under Order 21 Rule 103 CPC, which was appealable.
4. Learned counsel for the appellants submitted that the appellants were residing in the disputed property, who are having ownership in it being the legal heirs of their deceased father Paramhans Pandey, but they were not made a party to the suit no.348 of 1988 and as such, the decree passed in that suit was not binding upon them. It was further submitted that the decree passed in the above suit was a collusive decree, which has been passed in collusion with the defendants.
5. Learned counsel submitted that since the appellants were having vested independent right in the property, as such, they cannot be evicted from the property in the execution proceedings initiated by the decree holder of Original Suit No.348 of 1988.
6. I have heard the learned counsel for the appellants and perused the documents submitted with the appeal.
7. It is apparent from the documents submitted with the appeal that the plaintiff/decree holder Nizamuddin filed O.S. No.348 of 1988 against defendants Shivanand Bharti son of Raja Ram Bharti, Shri Ram, Ramji and Basant Kumar sons of Shivanand Pandey (Bharti) for the relief of permanent injunction and for getting possession of the disputed property on the ground that he is the owner of the disputed property and the defendants are threatening to dispossess him and the defendants have also made encroachment on his land to which he is entitled to reclaim the possession. The defendants submitted their written statement in this suit with the averments that they are the owners on the basis of adverse possession in the disputed property.
8. It was further averred by the defendants that the plaintiff is neither the owner nor in possession of the disputed property. The defendants admitted that they are in possession of the disputed property. It is relevant to mention here that the dispute is in relation to Arazi No.2299 situated in Village Karimuddinpur, Pargana Muhammadabad, District Ghazipur.
9. The trial court decreed the suit on 22.12.2011 and it has recorded a specific finding that the plaintiff is the owner of the disputed property on the basis of sale deed executed in his favour, in which the defendants have made illegal construction and in view of the evidence on record, the original suit of the plaintiff was decreed and the defendants were directed to remove their illegal construction on the disputed property and hand its po
