1. Obstruction by third parties claiming title in execution proceedings under Order 21 Rules 97 and 99 CPC. (Para 1 , 3 )
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2022 Supreme(Online)(MAD) 6877
HIGH COURT OF MADRAS
S. Ananthi, J
G. Ramesh – Appellant
Versus
A. Kamatchi @ Kamatchia Pillai – Respondent
CR.P.(MD)No.625 of 2022|C.M.P.(MD)No.2589 of 2022
Advocates:
For the Appellants/Petitioners: R. Suriya Narayanan
For the Respondents: K.K. Ravie
For the Appellants/Petitioners: R. Suriya Narayanan
For the Respondents: K.K. Ravie
The executing court is mandated to adjudicate the independent right, title, and interest of a third-party objector under Order XXI Rules 97 and 99 of the CPC, even before actual dispossession, to avoid multiplicity of proceedings and ensure justice to the true owner.
Headnote:(A) Civil Procedure Code, 1908 - Order XXI Rules 97, 98, 99, 100, 101 and 103 - Section 115 - Execution Proceedings - Right, title and interest of third party - The executing court is empowered to adjudicate all questions pertaining to right, title, or interest in the property arising between the parties, including the claim of a stranger who apprehends dispossession or has already been dispossessed. Such adjudication is intended to avoid multiplicity of proceedings and is a mandatory requirement before the recovery of possession can be ordered. (Paras 10, 11)
(B) Order XXI Rule 97 and Rule 99 - Scope - A stranger to a decree who claims an independent right, title, and interest in the decretal property can offer resistance before actually being dispossessed under Rule 97, or seek restoration of possession after being dispossessed under Rule 99. The determination under these rules has the force of a decree under Order XXI Rule 103. (Para 11)
Facts of the case:
The petitioners, claiming title and possession of a property in S.No.13/2 based on documents dating back to 1954, filed an application under Order 21 Rule 97 and 99 of the Civil Procedure Code to declare their rights. The executing court dismissed the application on the grounds that the petitioners were not judgment debtors and had not yet been dispossessed, rendering the petition premature.
Findings of Court:
The court held that the executing court must protect the rights of the true owner and decide the matter on merits regarding the title of the objectors before proceeding with the execution of the decree.
Issues: Whether the executing court can dismiss an application for adjudication of title and possession filed by a third party on the ground that such party has not yet been dispossessed.
Ratio Decidendi: Following the 1976 amendment to the CPC, the executing court is required to determine all questions regarding the right, title, and interest of an objector under Order XXI Rule 97, and this adjudication is intended to be conclusive as a decree under Rule 103, thereby preventing the need for separate suits.
Result: Civil Revision Petition allowed.
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Table of Contents
2. Petitioners claimed title and possession; execution court dismissed for lack of locus standi and being premature. Decree-holder opposed. (Para 3 , 5 )
3. Execution court must adjudicate claims of third parties in possession before ordering recovery. Multiplicity of proceedings must be avoided. (Para 7 , 8 , 10 , 12 )
4. An execution court has jurisdiction to adjudicate the right, title, and interest of a stranger claiming independent rights under Order 21, Rules 97 and 99 CPC. (Para 7 , 8 , 11 )
5. Civil Revision Petition allowed. Impugned order set aside. Execution court directed to decide the matter on merits. (Para 13 )
6. Can an executing court adjudicate the right, title, and interest of a third-party objector claiming independent rights?
Yes. Order 21, Rules 97 to 103 CPC empower the executing court to adjudicate such claims to avoid multiplicity of proceedings. (Para 7 , 8 , 11 )
7. Is a stranger to the decree required to be dispossessed before filing an obstruction application under Order 21, Rule 97?
No. A stranger claiming independent rights can object even before actual dispossession if he is vigilant. (Para 3 , 5 , 11 )
8. What is the status of an order passed under Order 21, Rule 98 or 100 of CPC?
It is deemed to be a decree under Order 21, Rule 103 and is appealable. (Para 11 )
PRAYER: Civil Revision Petition under Section 115 of Civil Procedure Code to set aside the fair and executable order dated 02.03.2022, made in E.A.No.53 of 2021 in E.P.No.27 of 2008 on the file of the learned District Munif, Vadipatti.
ORDER
This Civil Revision Petition has been filed by the revision petitioners to set aside the fair and executable order, dated 02.03.2022 in E.A.No.53 of 2021 in E.P.No.27 of 2008 on the file of the learned District Munif, Vadipatti.
2.The parties are referred to as per the rank mentioned before the Court below.
3.The petitioners have filed an application in E.A.No.53 of 2021 in E.P.No.27 of 2008 under Order 21 Rule 97 & 99 of Civil Procedure Code to declare the properties in S.No.13/2 belonged to them on the basis that part of the E.P. schedule property was purchased by these petitioners on 17.12.2012. The vendor of the petitioners had purchased the property on 24.02.2000. The previous title holders were also in possession from 1954 and without impleading them, the present suit was filed.
4.Heard on either side. Perused the material documents available on record.
5.This Civil Revision Petition is filed on the ground that the Court below has dismissed the petition on the ground that the petitioner is not a Judgment debtor and he has not been dispossessed and hence no locus standi or the petition is premature one, is incorrect and illegal. The Court below has failed to see that the suit and the decree obtained by the respondents are fraudulent one, as the original owner of the suit property sold out the same even in the year 1965 but suppressed the said fact the suit is filed and collusive decree is obtained against and support of the alleged lessee, and in execution petition trying to take possession of the petitioner's property, hence illegal. The order passed by the Court below is liable to be set aside.
6.To prove their claim the petitioners have filed documents from the year 1954.
7.All the Judgment discussed in the order of the Execution Court is to avoid false claim by way of obstruction. But, in this case the petitioners have filed documents to support their petition.
8.So, the Execution Court must decide the title of the objectors as claimed in the petition and only after deciding the title, it can proceed with the execution petition.
9.The learned counsel appearing for the respondent/decree holder relied upon the Judgment reported in 2021(2) MWN (Civil ) 578, Rahul S.Shah Vs. Jinendra Kumar Gandhi & Others, in which the Hon'ble Supreme Court has issued the following guidelines:
42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:
1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
5. The Court must, before passing the decree, pertaining to
6. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property:
