http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: BABULAL

       Vs.

RESPONDENT: RAJ KUMAR & ORS.

DATE OF JUDGMENT:       16/02/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Though the  respondents have  been served,  the  second respondent has filed a photocopy of the Power of Attorney on behalf of  respondent Nos.1 and 3 to 6 but when the Registry directed him  to produce  the original  he failed  to do the same. He  is also  not present  in the Court. One Shyam Lal, son of  Prabhu Lal  Kayasth had  laid the  suit for specific performance; the  Civil Judge  dismissed  the  suit  but  on appeal No.16/1973  by judgment  and decree dated October 18, 1973, the suit was decreed as under:      "Appeal  is   accepted  with  cost.      Judgment and decree under appeal is      set aside  and  suit  for  specific      performance of  contract is decreed      with costs  that defendants  as per      contract  Ex.1   at  1.9.66   shall      execute sale  deed within  3 months      and plaintiff shall pay the balance      sum to  the defendant  in the  said      period, otherwise  plaintiff  shall      be entitled  to get  the sale  deed      executed of the dispute property as      per the  law depositing the balance      amount  in  the  court  within  two      months."      In the  suit there  was prayer for specific performance with possession of the property in prayer 1 thus:      "It  be   decreed  that  defendants      should performs  their part  of the      contract regarding the land and for      this  purpose  get  the  sale  deed      registered after receiving a sum of      Rs.1100/-    and    handover    the      possession of the disputed house to      the plaintiff." Under Section  22(1)  of  the  Specific  Relief  Act,  1963, notwithstanding anything  contained in Civil Procedure Code, the plaintiff  suing  for  the  specific  performance  of  a contract for  transfer of  immovable  property  may,  in  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

appropriate case,  ask  for  possession  or  partition  with specific possession  of the  property, in  addition to  such specific performance.  Sub-section (2)  puts fetters  on the power of  the court to grant such relief without there being the relief  specifically claimed  in the  plaint. As seen in the decree,  though prayer  for possession  was claimed,  no decree for possession was granted which had become final.      It would  appear that  in execution  of the  decree the legal  representatives   of  the   decree-holder  sought  to dispossess the appellant from the property said to be in his possession. Apprehending  his dispossession,  the  appellant had filed  another suit  for injunction  based on possessory title obtained  an adinterim  injunction on  July 2, 1991 as under:      "Counsel for the applicant present.      The  Presiding   Officer  has  been      transferred. Notice  be  issued  to      non-applicant on filing the process      fee. File be Put up on ...... After      writing  this,  non-applicant  No.2      Subhash   Saxena    appeared    and      informed the  court that he has not      received copy  of stay application.      Copy of  stay application  is given      to   him   today.   Rest   of   the      applicants Nos. 1, 3, 4, 5 and 6 be      summoned through  notices on filing      the   Registry   fees   and   other      expenses.  Meanwhile  non-applicant      No.2   would    not    dispossessed      applicant   Babu   Lal   from   the      disputed house  (except the  decree      of  the   court).   Put   file   on      17.8.91." We are informed that the injunction is still subsisting.      In the  execution application filed under Order 21 Rule 32 of the CPC the appellant filed an objection on the ground that he could not be dispossessed. It is not in dispute that the appellant  was not  a party  to the  decree for specific performance. His  objection was  over-ruled by the executing Court holding  that since  he  had  not  been  dispossessed, application under Order 21 Rule 97 is not maintainable. That view was  affirmed by  the High  Court in the impugned order dated May  9, 1995  in CRP  No.656/94 by  the High  Court of Rajasthan at  Jaipur Bench.  Thus, this  appeal  by  special leave.      The controversy is no longer res integra. This Court in Bhanwar  Lal   v.  Satyanarain  &  Anr.  [(1995)  1  SCC  6] considered  the  controversy  and  had  held  that  even  an application filed  under Order  21 Rule  35(3) or  one filed under Section  47 would  be treated  as an application under Order 21  Rule 97  and an  adjudication is  required  to  be conducted under Rule 98. Dispossession of the applicant from the property  in execution  is not a condition for declining to entertain  the application.  The reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct  of a  regular adjudication, finding recorded thereon would  be a  decree and  bind the parties. In Para 7 thereof it was held thus:           "In the  above  view  we  have      taken, the High Court has committed      grievous error  of jurisdiction and      also patent  illegality in treating      the  application   filed   by   the      appellant as  barred by  limitation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    and the  third one on res judicata.      Once   the    application,    dated      25.5.1979  was   made,  the   Court      should have  treated it  to be  one      filed under  Order 21,  Rule 97 (1)      CPC. The  question of  res judicata      for filing  the  second  and  third      applications does  not arise. Under      these circumstances,  the appellate      court, though for different reasons      was  justified   in  directing   an      enquiry to be conducted for removal      of the  obstruction  or  resistance      caused by  Satyanarain under  Order      21, Rules 35(3) and Order 21, Rules      101 and 102 of CPC". It would,  therefore,  be  clear  that  an  adjudication  is required to  be conducted  under Order  21, Rule  98  before removal of  the obstruction  caused by  the  object  or  the appellant and  a finding  is required to be recorded in that behalf. The  order is  treated as  a decree  under Order 21, Rule 103  and it  shall be  subject to  an appeal.  Prior to 1976, the  order was subject to suit under 1976 Amendment to CPC that  may be  pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended  Code, right  of suit under Order 21, Rule 63 of old Code  has been  taken away.  The  determination  of  the question of  the right, title or interest of the objector in the  immovable   property  under   execution  needs   to  be adjudicated under Order 21, Rule 98 which is an order and is a decree  under Order 21, Rule 103 for the purpose of appeal subject to  the same conditions as to an appeal or otherwise as if  it were a decree. Thus, the procedure prescribed is a complete code  in itself.  Therefore, the executing Court is required to  determine the question, when the appellants had objected to  the execution  of the  decree  as  against  the appellants who  were not  parties to the decree for specific performance.      The appeal  is accordingly allowed. The executing Court is directed  to enquire into the matter and record a finding after giving opportunity to the parties. No costs.