Is Second Appeal Allowed Under Order 21 Rule 97 & 99 CPC?

In the complex world of civil execution proceedings under the Code of Civil Procedure, 1908 (CPC), disputes often arise when third parties resist or obstruct the delivery of possession of immovable property. A common query among litigants is: Whether Second Appeal is Permissible against Order Passed under Order 21 Rule 97 and 99? This question becomes critical when executing courts pass orders adjudicating such resistances, and parties seek higher remedies.

This post delves into the legal framework, key circumstances where applications under these rules may not be entertained, appeal mechanisms, and practical insights. Note that this is general information based on judicial precedents and should not be construed as specific legal advice—consult a qualified lawyer for your case.

Understanding Order 21 Rules 97, 98, and 99 CPC

Order 21 Rule 97 CPC allows the decree holder or purchaser in an execution sale to apply to the court if resisted or obstructed by any person in obtaining possession of immovable property. The court then adjudicates the matter under Rule 98, which provides for inquiry and orders. Rule 99 addresses dispossession during execution and restoration rights.

These provisions form a complete code for resolving execution disputes, as held in various cases. However, their applicability is not absolute. Courts must scrutinize if the application is maintainable before proceeding. 2022 0 Supreme(All) 116

The provisions of Order 21 Rules 97 to 103 CPC provide a complete code for resolving disputes pertaining to execution of decree for possession and the executing court is under obligation to adjudicate the right, title or interest of the obstructionist/resister in the manner prescribed under these rules. 2022 0 Supreme(All) 116

Circumstances Where Order 21 Rule 97 and 98 Applications Cannot Be Allowed

Executing courts cannot entertain applications under Order 21 Rule 97 and 98 in certain scenarios, directing parties to file separate suits instead. Here are the key circumstances:

1. Objector Has Filed a Separate Suit for Title Declaration

When the objector has already instituted a separate suit claiming independent right, title, and interest over the property, Rule 97 does not apply. The executing court lacks jurisdiction to inquire into title disputes pending elsewhere. 2008 0 Supreme(Jhk) 1464 2008 0 Supreme(Jhk) 1472

The court cannot call for evidence on rival title claims, as it would interfere with the title suit. 2008 0 Supreme(Jhk) 1464 2008 0 Supreme(Jhk) 1472

2. Objector is Neither Decree Holder Nor Purchaser

Only the decree holder or auction purchaser can file under Rule 97 complaining of resistance. Third parties without this status cannot invoke it. 2016 0 Supreme(Jhk) 759

3. Objector Lost a Prior Title Suit

If a separate title declaration suit by the objector was dismissed, the executing court cannot re-litigate the issue under Rule 97. 2008 0 Supreme(Jhk) 1464 2008 0 Supreme(Jhk) 1472

4. Objector Not Bound by the Decree

While Rule 97 covers persons resisting possession, including those not bound by the decree, if the objector claims independence unbound by the decree, a separate suit may be mandated rather than Rule 97 adjudication. 2002 6 Supreme 109 2004 0 Supreme(SC) 1288 1998 6 Supreme 92

Order 21 Rule 97 CPC allows the executing court to adjudicate claims of any person resisting or obstructing the delivery of possession, including those not bound by the decree. 2002 6 Supreme 109 2004 0 Supreme(SC) 1288

In such cases, courts emphasize avoiding parallel proceedings and prolonging litigation.

Appealability of Orders Under Order 21 Rule 97 and 99

Orders passed under Rules 97, 98, and 99 are appealable. Importantly, courts have clarified their nature:

• Appeals under Order 21 Rules 58 and 97-101 are treated as regular first appeals under Section 96 CPC, not miscellaneous appeals. This rejects contrary High Court views and aligns with legislative intent. 2024 0 Supreme(Mad) 2560

Court clarifies that appeals under Order 21 Rules 58 and 97-101 should be treated as regular appeals under Section 96, rejecting contrary views from other High Courts. 2024 0 Supreme(Mad) 2560

The practice labels them as Civil Miscellaneous Appeals procedurally, but they carry decree-like status for appeals. 2024 0 Supreme(Mad) 2560

Rule 103 CPC explicitly provides appeals from orders under Rules 97, 98, 99, 100, and 101, lying as if from decrees.

Is Second Appeal Permissible?

Since first appeals against these orders are regular appeals under Section 96 (to the District Court or High Court, depending on value), second appeals under Section 100 CPC may lie if a substantial question of law arises. Section 100 permits second appeals against appellate decrees involving such questions.

However, second appeals are not a matter of right and require certification of substantial law questions. Courts discourage routine second appeals in execution matters to prevent delays. Precedents affirm this pathway, given the decree-equivalent status. 2024 0 Supreme(Mad) 2560

Limitations from Other Scenarios

• Transferee Pendente Lite: Rule 102 bars Rules 98/100 application to post-suit transferees. Obstruction applications fail limine. 2015 0 Supreme(Mad) 1466 2015 0 Supreme(Mad) 499 2015 0 Supreme(Mad) 2179

Rules not applicable to transferee pendente lite... Nothing in rules 98 and 100 shall apply to resistance or obstruction... by a person to whom judgment-debtor has transferred the property after institution of suit. 2015 0 Supreme(Mad) 1466

• Non-Possession Decrees: Simple partition decrees (e.g., under Kerala Act Sec 37(2)) aren't executable against strangers via Rule 97. 2020 0 Supreme(Ker) 456

A decree for partition falling under Section 37(2) of the Kerala Act cannot be executed against a stranger/obstructor or a third person. 2020 0 Supreme(Ker) 456

• Independent rights claims are maintainable even without decree holder complaint. 2022 0 Supreme(All) 116

Practical Recommendations for Litigants

• Examine Maintainability First: Before filing under Rule 97, check if a title suit pends or if you're eligible (decree holder/purchaser).
• Appeal Strategically: Treat first appeals as regular; prepare for potential second appeals on law questions.
• Avoid Abuse: Transfers pendente lite (Sec 52 TPA) invite rejection. 2015 0 Supreme(Mad) 499

Executing courts must factually analyze to direct separate suits where apt, curbing litigation prolongation.

Key Takeaways

| Scenario | Rule 97/98 Maintainable? | Appeal Path ||----------|---------------------------|-------------|| Separate title suit filed | No 2008 0 Supreme(Jhk) 1464 2008 0 Supreme(Jhk) 1472 | Separate suit appeal || Not decree holder/purchaser | No 2016 0 Supreme(Jhk) 759 | N/A || Lost prior title suit | No 2008 0 Supreme(Jhk) 1464 2008 0 Supreme(Jhk) 1472 | Review dismissal || Not bound by decree | Generally separate suit 1998 6 Supreme 92 | Regular appeals chain || Regular resistance | Yes 2022 0 Supreme(All) 116 | Sec 96 first, Sec 100 second possible 2024 0 Supreme(Mad) 2560 |

In summary, while applications under Order 21 Rule 97 and 98 face strict limits, orders thereunder permit regular first appeals, opening doors to second appeals on substantial law questions. Adhere to precedents for efficient execution.

This analysis draws from cited judgments; outcomes vary by facts. Seek professional advice.