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CASE NO.: Appeal (civil)  3130 of 2002 Special Leave Petition (civil)  8261 of 2001

PETITIONER: Ashan Devi & Anr.                                        

RESPONDENT: Phulwasi Devi & Ors.             

DATE OF JUDGMENT: 19/11/2003

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       This appeal and the connected special leave petition arise out of  the same execution proceedings and the impugned order dated  23.4.2001 passed by the High Court of Patna.  

       The principle question involved is whether a purchaser of a  vacant land under registered Sale Deed and claiming to be in  possession of the land can maintain an application under  Order 21  Rule 97 of the Code of Civil Procedure complaining of his alleged  dispossession in execution of the decree of specific performance of  contract of sale obtained ex parte by the decree holder against the  original owner of the suit property?  

       For the sake of easy understanding, the parties shall be  described in their status in the executing proceedings as Decree  Holder, Judgement Debtor and Objector.  For the purpose of these  appeals, we do not consider it necessary to go into greater details of  the proceedings in the suit which resulted in passing of the  decree of  specific performance of the contract.  

Bare facts necessary for the purpose of decision are as under :-  

       According to the decree holder, an Agreement of  Sale was  obtained  on 12.07.1984 from the judgment debtor in respect of the  suit lands which are now potential building sites on the outskirts of  Patna city. The case of the decree holder is that when she filed the  suit no. 22/87 against her vendors for specific performance of  Agreement of Sale dated 12.7.1984, she was not aware that the  Objectors had obtained title to the suit property by four separate sale  deeds in the year 1985 and got them registered in Calcutta where the  vendors resided. The purchasers were not made parties to the suit.

       The case of the Objectors is that pursuant to the execution of  the registered sale deeds, they obtained possession of the land and  got their names mutated in the records of the Patna Municipality.  According to them, they had no knowledge of any prior agreement of  sale existing in favour of the Decree Holder.  

       The vendors did not contest the suit for specific performance of  agreement of sale filed by the Decree Holder. An ex-parte decree of  specific performance of contract was passed on 08.11.1990 in favour  of the Decree Holder. The decree was put in execution by Decree  Holder by depositing the balance consideration of sale in the court.  A  registered sale deed was executed by the court in favour of the  decree holder as the judgment debtors absented despite notice and

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failed to execute it. According to the Decree Holder, on 5.9.1996,  through the process issued by the executing court, possession of the  decreed property was obtained by the Decree Holder through Court  Nazir without any obstruction or resistance from any one.  

       On 21.9.1996, the Objectors filed an application under Order  XXI Rule 99 before the executing court complaining their illegal  dispossession and seeking restoration of possession to them. It was  urged that they were not parties to suit for specific performance of  the contract and could not have been dispossessed in execution of  the decree. Their case was that they had no knowledge of any alleged  prior agreement in relation to the same property existing in favour of  the Decree Holder. It was alleged that the suit for specific  performance and the decree obtained ex-parte against the judgement  debtors were collusive.  

       The application under Order XXI Rule 99 filed by the Objectors  was opposed by the Decree Holder stating that with prior knowledge  of the agreement of sale, the Objectors having obtained the sale  deeds, the decree of specific performance can be executed against  them in accordance with section 19(b) of the Specific Relief Act,  1963. Preliminary objection was also raised by the Decree Holder on  the maintainability of application  under Order XXI Rule 99 of the  Code. It was urged that since the Objectors did not offer any  resistance or obstruction to the execution of the decree and were not  present at the time of its execution through court, they cannot be  held to have been ’dispossessed’ physically or actually within the  meaning of Order XXI Rule 99 of the Code.  

       On the basis of the pleadings of the Objectors in their  application under Order XXI Rule 99 of the Code and the reply  submitted by the Decree Holder to the same, the executing court  framed a preliminary issue on the maintainability of the application  filed by the Objectors. Issues on merits were also framed; as to  whether the suit for specific performance was filed with knowledge of  execution of registered sale deeds and deliberately the registered  purchasers were not impleaded as parties to the suit   OR   whether  Objectors purchased the property with full knowledge of prior  agreement of sale with the decree holder. The executing court  decided all the contesting issues including preliminary objection on  maintainability of application under Order XXI Rule 99 of the Code in  favour of the Objectors. By order dated 02.6.2000, it directed  restoration of possession of the property in dispute to the Objectors.   

       Aggrieved by the order of the executing court allowing  objection under Order XXI Rule 99  of the Code, the Decree Holder  preferred an appeal to the High Court. The learned single Judge of  the High Court of Patna by its impugned order dated 23.4.2001,  allowed the appeal of the Decree Holder. The High Court came to the  conclusion that as in execution of the decree, the Objectors were not  ’actually and physically dispossessed’, the application under Order  XXI Rule 99 of the Code was not maintainable and the executing  court could not have decided the competing claims of the parties to  the property in the course of execution proceedings. The High Court  set aside the order of the executing court and observed that the  Objectors may resort to a separate suit for enforcing their rights and  title to the property. The High Court also observed that if such a suit  is filed, the findings and observations recorded by the executing court  and the High Court would not be binding on the parties nor prejudice  their contentions in that suit that may be filed.  

       Aggrieved by the reversing judgment of the High Court, the  Objectors are in this appeal. The connected special leave petition has  been filed by the Decree Holder as they feel aggrieved only by the  last direction of the High Court giving liberty to the Objectors to file a

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separate suit for their rights, without being prejudiced by findings  and conclusions reached in proceedings under Order XXI Rule 99 of  the Code.  

       We have heard both the learned senior counsel Shri P.S. Mishra  appearing for the Objectors and Shri R.S. Suri for the Decree Holder  at sufficient length. On behalf of the Objectors, it is contended that  they being in possession under registered sale deeds and their names  having also been mutated in records of Patna Municipality, the  delivery of possession of the land in execution of decree of specific  performance to the Decree Holder was clearly a case of  ’dispossession’ within the meaning of Order XXI Rule 99 of the Code.   Reliance is placed on Brahmdeo Chaudhary vs. Rishikesh Prasad  Jaiswal & Anr. [1997 (3) SCC 694]; Shreenath & Anr. vs.  Rajesh & Ors. [1998 (4) SCC 543]; Silverline Forum Pvt. Ltd.,  vs. Rajiv Trust & Anr. [AIR 1998 SC 1754]; and Tanzeem-E- Sufia vs. Bibi Haliman & Ors. [2002 (7) SCC 50]   

       The second contention advanced is that the decree holder had  full knowledge of the registered sale deeds existing in favour of the  Objectors and without impleading the Objectors, an ex-parte decree  of specific performance was obtained against the original vendors. It  is contended that the Objectors being subsequent purchasers under  sale deeds were necessary parties to the suit in accordance with the  provisions of section 19(b) of the Specific Relief Act, 1963. It is  contended that the decree in the absence of the Objectors who were  necessary parties to the suit, is not executable. Reliance is placed on  Ram Sworup Singh vs. Mahabir Mahton [AIR 1960 Patna 235];  Chinna Vanan vs. Alamelu & Ors. [1975 Vol.I Madras Law  Journal Reports 263]; and Vimala Ammal vs. C. Suseela & Ors.  [AIR 1991 Madras 209].

       We need not go into the question whether the Objectors as  subsequent purchasers of the suit properties were necessary parties  to the suit for specific performance based on alleged prior agreement  of sale,  because both parties plead want of knowledge of each  other’s transactions at the time the  registered sale deeds were  obtained by the Objectors and at the time of institution of suit by the  Decree Holder.  

       We would, first, take up for consideration the main question  involved between the parties as to whether the Objectors could have  made application under Order XXI Rule 99 to the executing court and  seek adjudication of their right and title through the executing court  in accordance with Order XXI Rule 101 of the Code or their remedy  lay in filing an independent suit.  Order XXI Rule 99 & 101 read as  under :-  

"O.XXI, Rr.99. Dispossession by decree-holder or  purchaser. \026 (1) Where any person other than the  judgment-debtor is dispossessed of immovable property  by the holder of a decree for the possession of such  property or, where such property has been sold in  execution of a decree, by the purchaser thereof, he may  make an application to the Court complaining of such  dispossession.  (2) Where any such application is made, the Court shall  proceed to adjudicate upon the application in accordance  with the provisions here contained.  

O. XXI, Rr.101. Question to be determined.- All  questions (including questions relating to right, title or  interest in the property) arising between the parties to a  proceeding on an application under rule 97 or rule 99 or  their representatives, and relevant to the adjudication of

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the application, shall be determined by the Court dealing  with the application, and not by a separate suit and for  this purpose, the Court shall, notwithstanding anything to  the contrary contained in any other law for the time being  in force, be deemed to have jurisdiction to decide such  questions."    

       It is necessary at this stage to take into account the objects of  drastic amendments introduced to the Code of Civil Procedure by Act  No. 104 of 1976. This court in the case of Shreenath & Anr. (supra),  has compared the unamended  provisions of the Code in Order XXI   and the provisions introduced after amendment. It is noticed that  earlier under the Code,  third party ’dispossessed’ in the execution of  the decree was required to institute an independent suit for  adjudication of its right and claims. In order to shorten the litigations  concerning same properties between same and third parties, claims  of third parties to the property in execution are now required to be  determined by the executing court itself in accordance with provisions  under Order XXI Rule 101 with right of appeal to the higher court  against such adjudication treating it to be a ’decree’ under Order XXI  Rule 103 of the Code. On the amendments introduced to the Code by  Amendment Act of 1976, this Court observed thus :-  

’In interpreting any procedural law, where more than one  interpretation is possible, the one which curtails the  procedure without eluding justice is to be adopted. The  procedural law is always subservient to and is in aid of  justice. Any interpretation which eludes or frustrates the  recipient of justice is not to be followed.’  

       In case of Brahmdeo Chaudhary (supra), the provisions of  Order XXI Rule 97 of the Code, as amended, came up for  construction. They read thus :-

"O.XXI, Rr.97. Resistance or obstruction to  possession of immovable property. \026 (1) Where the  holder of a decree for the possession of immovable  property or the purchaser of any such property sold in  execution of a decree is resisted or obstructed by any  person obtaining possession of the property, he may  make an application to the Court complaining of such  resistance or obstruction.  

(2) Where any application is made under sub-rule (1), the  Court shall proceed to adjudicate upon the application in  accordance with the provisions herein contained."   

The question raised in that case was whether the Objector  cannot claim adjudication of his claim being third party to the decree  under execution until he is ’actually dispossessed’. The argument  advanced was that application under Order XXI Rule 97 at the  instance of Objector is not maintainable to the executing court  because such application complaining ’resistance and obstruction’ by  the third party could be filed only by the Decree Holder under  Order XXI Rule 97 of the Code. It was argued that the remedy of the  third party to the executing court is only after he suffers  dispossession in execution of the decree. Thereafter, he has to  complain under Order XXI Rule 99 and seek adjudication of his claims  and rights. This Court negatived that contention and observed thus :-  

’On the contrary the statutory scheme  envisaged by  Order XXI Rule 97 CPC clearly guards against such a  pitfall and provides a statutory remedy both to the

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decree-holder as well as to the obstructionist  to  have their respective say in the matter and to get proper  adjudication before the executing court and it is that  adjudication which subject to the hierarchy  of appeals  would remain binding between the parties to such  proceedings and separate suit would be barred with a  view to seeing that multiplicity of proceedings and parallel  proceedings are avoided and the gamut laid down by  Order XXI Rule 97 to 103 would remain a complete code  and the sole remedy for the parties concerned to have  their grievance once and for all finally resolved in  execution proceedings themselves.’  

                The case of Brahmdeo Chaudhary (supra)  was relied by this  Court in the case of   Silverline Forum Pvt. Ltd.,(supra). It was  held that the remedy under Order XXI Rule 99 in execution is  available to a party only on his dispossession but a third party who is  resisting  or obstructing the execution of decree can also seek  adjudication of his claims and rights by making application under  Order XXI Rule 97 of the Code.  

       In the case of Tanzeem-E-Sufia(supra), the third party who  was in possession of a part of premises  had filed a separate suit for  declaration of  its right and title. In executing proceedings, the  Decree Holder in respect of the entire decretal property, complained  of obstruction and resistance to the execution by the third party.  Even on these facts, this Court held that the application of Decree  Holder required adjudication under Order XXI Rule 97 of the Code  and the application of the third party also necessitated adjudication of  its rights under Order XXI Rule 99 of the Code irrespective of the fact  that for part of the property, the third party had filed an independent  suit for declaration of its title to the suit property.  

       The above mentioned decided cases of this Court clearly  indicate that the provisions of Order XXI Rule 97 and 99 have been  widely and liberally construed to enable the executing court to  adjudicate the inter se claims of the decree holder and the third  parties in the executing proceedings themselves to avoid prolongation  of litigation by driving parties to file independent suits.   

       The word "dispossessed" as used in Order XXI Rule 99 of the  Code has been narrowly construed to be an ouster from actual and  physical possession of the property by several High Courts. See AIR  1954 Mad 516 (519); 1966 (32) Cut. LT 972; and AIR 1978  Goa 48.                    Salmond on jurisprudence explains that the word "possession"  is a word of ’open texture’. Its legal meaning has to be ascertained  from the context. The property involved in the present case is open  vacant land. Such property is possessed by a person who has control  over the same. This ’control’ over the property means ’power to  exclude all others’. The test then for determining whether a man is in  possession of anything is whether he is in ’general control’ of it -  maybe that he is not in actual and physical possession or using the  same.  

       The Objectors have laid evidence before the executing court to  show that after obtaining by recitals in the sale deeds delivery of  possession of the property, the names of purchasers were also  mutated in the municipal’s records. Merely because at the time of  execution of the decree through Court Nazir, the Objectors were not  physically present on the property, it cannot be said that the delivery  of possession to the Decree Holder by the court does not amount to  the Objectors’ legal ouster or ’dispossession’. The word ’possession’,

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therefore, has to be given contextual meaning on facts of a particular  case and the nature of the property involved.  

       In interpreting  the provisions of Order XXI Rule 97 of the Code  and the other provisions in the said order, the aims and objects for  introducing amendment to the Code cannot be lost sight of. Under  the unamended Code, third parties adversely affected or  dispossessed from the property involved, were required to file  independent suits for claiming title and possession. The Legislature  purposely amended provisions in Order XXI to enable the third  parties to seek adjudication of their rights in execution proceedings  themselves with a view to curtail the prolongation of litigation and  arrest delay caused in execution of decrees. See Bhag Mal vs. Ch.  Parbhu Ram [1985 (1) SCC 61].  

       The High Court in the impugned judgment dated 23.4.2001 has  construed the word "dispossessed" under Order XXI Rule 99 of the  Code to mean actual and physical dispossession. The reasoning  adopted is that if the expression ’dispossessed’ is thus not narrowly  construed, ’anybody apprehensive of dispossession or anybody  claiming right although not actually dispossessed can come within the  purview of Rule 99 and there would be flood-gate and a decree holder  who obtained a decree by due process of law would be frustrated in  not getting the fruit of the decree’.  

       There is fallacy in the above reasoning. As has been held by  this court in the case of Brahmdeo Chaudhary (supra),  a third  party resisting or obstructing the execution of the decree can also  seek adjudication of his rights under Order XXI Rule 97 in the same  way as the Decree Holder. If that be so, it seems illogical that the  third party which complains of actual dispossession because of the  delivery of possession in execution to the Decree Holder should not  be allowed to claim adjudication of his rights through the executing  court. An interpretation of the provision which promotes or fulfils the  object of the amended provisions of the Code of curtailing litigation,  has to be preferred to the one which frustrates it. The High Court also  lost sight of the fact that the property involved was a vacant land and  it could have been possessed only by having ownership and control  over it. Mere physical absence of the third party at the time of  execution of the decree was not a relevant fact to reject application  under Order XXI Rule 99 of the Code. From the trend and ratio of  decisions of this Court  surveyed above, if the Objectors would have  been present at or near the vacant land at the time of execution of a  decree and had offered obstruction or resistance to the execution,  they would have been entitled to seek adjudication of their rights and  claims through the executing court under Order XXI Rule 97. On the  same legal position and reasoning even though the Objectors were  not in actual and physical possession of the vacant land, but as a  result of delivery of possession of the land through Nazir to the  decree holder, lost their right and control over the land to put it to  their use, they will have to be treated to have been "dispossessed"  within the meaning of Order XXI Rule 99 of the Code. Such  interpretation would fulfil aim and object of the amended provisions  of the Code by allowing adjudication of disputes of title between the  decree holder and the third party in the executing court itself without  relegating them to an independent litigation.  

       In view of the discussion aforesaid, in our opinion, the  executing court was well within law in recording evidence and  adjudicating the claim of the third party. The executing court rightly  rejected the preliminary objection to the maintainability of application  of the Objectors under Order XXI Rule 99 of the Code and decided  the other issues on merits of their claims arising between the Decree  Holder and the Objectors.

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       The High Court in appeal mainly concentrated its decision on  the question of tenability of application under Order XXI Rule 99 at  the instance of the Objectors and having rejected the said application  did not in detail deal with other issues on merits arising between the  decree holder and the objectors. The issues on merits which were  liable  to be re-examined by the appellate court, as the first court of  facts and law, were :-  

(1)     Whether the decree holder at the time of  institution of suit had knowledge of the execution  of the registered sale deeds in favour of the  Objectors and yet they deliberately avoided to  make them as parties to the suit and thus  obtained in collusion with the vendors an ex-parte  decree of specific performance of the contract;   OR (2)     Whether the Objectors had full knowledge of  existence of prior agreement of sale executed by  the vendors in favour of the decree holder and  despite such knowledge they purchased the suit  property to frustrate the agreement existing in  favour of the decree holder.  

       As the appellate  court, having rejected the Objectors’  application under Order XXI Rule 99, has not in greater details gone  into the contested issues on merits, it is necessary to set aside the  impugned order of the High Court and remand the case to it for  decision of the appeal afresh in accordance with law.  

       In the result, the appeal preferred by the Objectors succeeds  and is allowed. The impugned order of the High Court dated  23.4.2001 is hereby set aside and the case is remanded to the High  Court for deciding the issues on merits in accordance with law.  

       The permission sought by Decree Holder to file the connected  Special Leave Petition \005\005\005\005\005CC 8261/2001 is refused.  

       In the circumstances, the costs incurred in these proceedings  shall abide the final result of the appeal to be decided by the High  Court.