SHAMSHER SINGH & ANR. versus LT. COL. NAHAR SINGH (D) THR. LRS. & ORS. on 29 July 2019

1. This appeal has been filed against the Division Bench Judgmentof Calcutta High Court in FMA No.720 of 2005, by which the appealfiled by the respondent No.1 has been allowed setting aside the order ofCExecuting Court dated 10.08.2004 rejecting the application filed byrespondent No.1 under Order XXI Rules 98, 99 and 100 of the Code ofCivil Procedure (hereinafter referred to as “CPC”).

2. Brief facts of the case giving rise to this appeal are:- 2.1One Tarapada Dutta owned premises No.15, Sahanagar Road,DP.S. Tollygunge, Calcutta. An agreement for sale wasexecuted by Anadi Dutt, who claimed to be son of TarapadaDutta in favour of Rajvindar Singh in respect of 4 Kh. 4 Ch.and 00 sft. of land and structures at premises No.15.Another agreement for sale was entered by Anadi Dutt withShamsher Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of landEand structures of premises No.15.

2.2The respondent had filed a T.S. No.211 of 1990 before the 3[rd]Munsif at Alipore praying for decree of declaration of hisright with regard to premises in question on the basis ofadverse possession.

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2.3Anadi Dutt having not executed the sale deed in pursuance ofagreement for sale dated 07.05.1990, two title suits beingSuit No.50 of 1994 and 51 of 1994 were filed by RajvindarSingh and Shamsher Singh, which were decreed ex-parte on20.12.1994. In pursuance of decree of the Court, twoGseparate Deeds of Conveyance were executed in favour ofDayal Singh (Nominee of Rajvindar Singh) and in favour ofShamsher Singh. Decree holders filed two execution casesvide Execution no. T.Ex. No.09 of 1995 and T.Ex. No.10 of1995 seeking delivery of possession of the suit property. First H

SHAMSHER SINGH v. LT. COL. NAHAR SINGH (D)THR. LRS. [ASHOK BHUSHAN, J.]

Time Court Bailiff could not succeed in deliveringpossession, however, subsequently the Court Bailiff with thehelp of police delivered Khas vacant possession of the suitpremises to the Decree Holder on 12.04.1996.

2.4 After lapse of 30 days, respondent No.1 filed two Misc. casesNos. 10 of 1996 and 11 of 1996 against Rajvindar Singh,Shamsher Singh, Dayal Singh and Asis Dutt under Order XXIRules 98, 99 and 100 CPC before the 6[th] Assistant DistrictJudge, Alipore. In the said two Misc. cases, respondent No.1claimed that his father Sardar Iqbal Singh was the occupierand was running his business under the name and style asPublic Transport Business in the suit premises and after hisdeath, respondent No.1 has been running a business underthe name and style of Ex-Service United Coal Enterprise (P)Ltd. In the above said Misc. Case No.10 of 1996, therespondent No.1 claimed that Anadi Dutt was not the son ofTarapada and it was Asis Kumar Dutt, who was the onlyson, owner and only legal heir of Late Tarapada. It was alsoclaimed that a T.S. No.211 of 1990 was pending before 3[rd]Munsiff at Alipore filed by respondent No.1, in which heclaimed right and title of the suit premises on the basis ofadverse possession. It was further claimed that ShamsherSingh, Rajvindar Singh and Dayal Singh had fraudulentlyobtained decree in collusion with Anadi Dutt and has evictedthe respondent No.1 from the suit property.

2.5 In Misc. proceeding application, although, the respondent No.1has impleaded Asis Kumar Dutt but he neither contested theMisc. application nor challenged the title of Anadi Dutt,against whom an ex-parte decree was passed. On21.01.1999, Dayal Singh also got a deed of conveyanceexecuted in his favour by Asis Kumar Dutt, alleged true legalheir of the Late Tarapada Dutta. Dayal Singh got his namemutated in Kolkata Municipal Corporation.

2.6 The Executing Court by order dated 10.08.2004 rejected Misc.Case No.10 of 1996 and Misc. Case No.11 of 1996 filed byrespondent No.1. Executing court held that respondent No.1failed to prove that he has acquired title by way of adversepossession. Against the order dated 10.08.2004 rejecting the A

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Misc. applications filed by respondent No.1, first appeal, FMANo. 720 of 2005 was filed by respondent No.1 in the CalcuttaHigh Court, which appeal has been allowed by Calcutta HighCourt by the impugned judgment dated 15.12.2009. The HighCourt by impugned judgment has set aside the order of theExecuting Court dated 10.08.2004 disposing the applicationfiled by respondent No.1 under Order XXI Rules 98, 99 and100 with a direction that appellant (respondent No.1 in thisappeal) should be put back into possession of the suitproperty. Aggrieved by the judgment of the High Court, thisappeal has been filed.

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3. We have heard Shri Debal Banerji, learned senior counsel forthe appellant and learned counsel appearing for the respondent.

4. Shri Debal Banerji, learned senior counsel appearing for theappellant submits that Executing Court had rightly rejected theapplication of respondent No.1 filed under Order XXI Rules 98, 99 andD100 CPC, he having failed to prove his title over suit premises. It issubmitted that the appellants were put in possession of the property inexecution of decree of the Court. The Executing Court having held thatrespondent No.1 failed to prove his title by adverse possession, theapplication was rightly rejected. It is further submitted that T.S.No.211Eof 1990 filed by respondent No.1 claiming for declaration of the title onthe basis of adverse possession has been subsequently dismissed on16.03.2009. It is submitted that High Court committed error in allowingthe appeal filed by respondent No.1 without any valid ground. It issubmitted that High Court has in its impugned judgment erred in takingthe view that the question whether the appellant has obtained any title inFrespect of the suit property by way of adverse possession or not, neednot be gone into in the appeal. It is submitted that decree passed by CivilCourt in favour of the appellant was never challenged by anyoneincluding the respondent No.1 or Asis Kumar Dutt, who is claimed byrespondent No.1 as son of Tarapada Dutta. Respondent No.1 havingGfailed to prove his title to the property, he was not entitled to put back inthe possession and High court committed error in allowing the appeal ofrespondent No.1.

5. Learned counsel for the respondent refuting the submissions ofthe learned counsel for the appellant contends that the fact is that H

respondent No.1 was in long possession of the premises and hadacquired possessory title. It is submitted that several documents werefiled by the respondent No.1 before the Executing Court to prove hispossession. It having been found that respondent No.1 was inpossession prior to he being dispossessed in execution of the decree, hewas entitled to be put back into possession. It is submitted that it wasnot necessary for respondent No.1 to establish his title to the land indispute for purposes of Order XXI Rules 98, 99 and 100 CPC. It wassufficient for the respondent No.1 to prove that he was in possessionprior to his dis-possession, which was sufficient for putting him back intopossession. He submitted that the High Court did not commit any errorin putting back the appellants into possession by allowing the appeal. Hesubmits that the appellants have obtained a fraudulent decree against aperson Anadi Dutt, claiming to be son of Late Tarapada Dutta, whereasthe real son is Asis Kumar Dutt. The respondent No.1 has beendispossessed on the basis of a fraudulent ex-parte decree, on the strengthof agreement of sale executed by a person, who has no title to theproperty.

6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

7. There is no dispute between the parties that the premises inquestion was originally owned by one Tarapada Dutta. The case of therespondent No.1 is that his father Late Iqbal Singh has trespassed intothe premises No.15, Sahanagar Road and after his death in 1965, it wasrespondent No.1, who was in occupation and possession of thepremises. In pursuance of decree for specific performance of contractpassed in T.S. No. 50 of 1994 and T.S. No.51 of 1994, in executionproceedings, the decree holders were put in possession on 12.04.1996.At the time of taking possession, one Shri Gopal Adak was found presentin the premises, who had claimed to be employee of respondent No.1.Respondent No.1 had filed a suit for declaration of the title on the basisof adverse possession being T.S. No. 211 of 1990. Copy of the plaint ofthe suit filed in the Court of 3[rd] Munsiff, 24 Parganas is brought onrecord as Annexure P-1. In the suit, following reliefs had been claimedby the respondent No.1, who was plaintiff in the suit:-

“a) A declaratory decree that the plaintiff has absolutepossessory title in the suit premises No.15, Shahanagar Road, AB

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ACalcutta under P.S. Tollygunge as fully described in the Schedule‘A’ of the plaint since the year 1965 to the exclusion of all otherperson or persons.

b) Decree for permanent injunction restraining the defendant and/or any person on its behalf and agent, its men, for interfering with theBplaintiff’s possession and occupation of the suit premises fully describedin Schedule ‘A’ of the plaint in any manner whatsoever.

c) Temporary injunction.

d) Ad-interim injunction in terms of prayer (c) above.

Ce) Commission.

f)Receiver.

g) Costs.”

8. In the application, which was filed by respondent No.1 forputting him back into possession under Order XXI Rules 98, 99 and 100DCPC, the respondent No.1 has claimed his possession since 1965 afterdeath of his father. The respondent No.1 in his application has alsorelied on filing of suit for declaration of his title being Suit No.211 of1990. There is no dispute between the parties that in execution ofdecree of specific performance, the appellants were put in possessionEand respondent No.1 aggrieved by his dispossession had filed an appli-cation under Order XXI Rules 98, 99 and 100.

9. Before we proceed further, it is necessary to look into theprovisions of Order XXI Rules 98, 99 and 100, as it existed at therelevant time. It is to be noted that by Code of Civil ProcedureF(Amendment) Act, 1976, there has been amendment in Order XXI Rules97 to 103. Order XXI Rule 97 deals with the resistance or obstruction topossession of immovable property, with which we are not concerned.Present is a case where the respondent No.1 alleged his dispossessionby decree holders.G10.Order XXI Rules 97 to 103 was substantially amended by

10. Order XXI Rules 97 to 103 was substantially amended byCode of Civil Procedure Amendment Act, 1976, Act No.104 of 1976w.e.f. 01.02.1977. The bill further to amend the code of Civil Procedureof 1908 was introduced in Parliament as Bill No.27 of 1974 on 08.04.1974.The statement of objects and reasons of the bill is relevant to be noticed.The statement of objects and reasons as well as notes on clauses were H

published in the Gazette of India extraordinary Part II Section (2) on08.04.1974. Notes of clauses with regard to amendment of Rules 97 to103 of Order XXI of Civil Procedure Code is contained in Clause 75(sub-clause xxxiii), which is to the following effect: - “Sub-clause(xxxiii). – The general scheme of rules 97 to 103has been altered on the lines of the amendments proposed torules 58 to 63. The main feature is that questions (including aquestion relating to right, title or interest in the property)arising between the parties to a proceeding under rule 97 orrule 99 is to be determined in execution proceeding itself andnot left to be decided by way of separate suit. Rule 98 hasbeen amplified to cover cases of resistance, etc., by a personacting under any instigation by the judgment-debtor.”

11. In the present case, the Rule which has fallen forinterpretation is Rule 101 of Order XXI. What was the Rule 101 prior to1976 Amendment and subsequent to 1976 amendment is relevant to benoticed to mark the difference into legislative scheme.

12. Rule 101 prior to amendment contained marginal note “Bonafide claimant to be restored to possession” which Rule is as follows: - A

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“101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.”

Bona fide Eclaimant to be restored to possession.

13. After the 1976 amendment both the marginal note and Rule101 was substantially changed. Rule 101 after 1976 Amendment is asfollows: - “Question to be determined

101. 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 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.”

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A14.The scope and ambit of Rule 101 prior to amendment wasentirely different as compared to Rule 101 as was brought into statuteafter 1976 amendment. Under unamended Rule 101, a bonafideclaimant had to be restored to possession and by virtue of Rule 103,Orders passed under Rule 101 was conclusive subject to the result ofthe suit to be filed by any party not being the judgment-debtor.BUnamended Rule 103 was as follows: - “103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99, or rule 101 may institute a suit to establish the right which he claims to the present possession of the Cproperty; but, subject to the result of such suit(if any), the order shall be conclusive.”

Orders conclusive subject to regular suit.

15. Rule 103 was also amended by 1976 amendment and afterthe amendment, Rule 103 now is as follows: - D

“Orders 103. Where any application has been adjudicated upon to be under rule 98 or rule 100, the order made thereon shall treated have the same force and be subject to the same as conditions as to an appeal or otherwise as if it were a decrees.decree.”

16. There is a marked difference between Rule 101 as it existedEprior to amendment and as it now exists after 1976 amendment. Earliera person who was a bona fide claimant and who satisfied that he was inpossession of the property on his own account or on account of someother person then the judgment-debtor could have been put inpossession of the property on an application under Rules 100 and 101,Fwhereas now after the amendment for putting back into possession anapplicant has not only to prove that he is in bona fide possession ratherhe has to prove his right, title or interest in the property. What wasearlier to be adjudicated in a suit under unamended Rule 103 is now tobe adjudicated in Rule 101 itself, thus, for being put in possession, anapplicant has to prove his right, title or interest in the property and byGsimply proving that he was in possession prior to the date he wasdispossessed by decree-holder, he is not entitled to be put back inpossession.

17. In view of the statutory scheme which is delineated byamended provisions of Rule 101, the submissions of the counsel of the H

respondent that by simply proving the fact that he was in possessionprior to he being dispossessed by decree-holder, he should be put back inpossession cannot be accepted. The respondent-applicant had to provehis right, title or interest in the property to be put back in possession.

18. Now, for ready reference, Order XXI Rules 99, 100 and 101are quoted below:- “99.Dispossession by decree-holder or purchaser— (1)Where any person other than the judgment-debtor is dispossessedof immovable property by the holder of a decree for possessionof such property or, where such property has been sold inexecution of a decree, by the purchaser thereof, he may make anapplication to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceedto adjudicate upon the application in accordance with the provisionsherein contained.

100. Order to be passed upon application complaining ofdispossession— Upon the determination of the questions referredto in rule 101, the Court shall, in accordance with suchdetermination,—

(a) make an order allowing the application and directing thatthe applicant be put into the possession of the property ordismissing the application; or (b) pass such other order as, in the circumstances of the case,it may deem fit.

101. Question to be determined— All questions (includingquestions relating to right, title or interest in the property) arisingbetween the parties to a proceeding on an application under rule97 or rule 99 or their representatives, and relevant to theadjudication of the application, shall be determined by the Courtdealing with the application and not by a separate suit and for thispurpose, the Court shall, notwithstanding anything to the contrarycontained in any other law for the time being in force, be deemedto have jurisdiction to decide such questions.”

19. Whether in the facts of the present case, Executing Courtwas required to determine questions relating to right, title or interest in A

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Athe property or on mere finding that respondent No.1 was in possessionprior to he being dispossessed from the property, he was entitled to putback into possession ? The Executing Court while determining the Misc.application of the respondent No.1 has considered the entire case of therespondent No.1 including the documents filed by him for proving hispossession. The Executing Court noticed that respondent No.1 hasBalready filed a Suit No.211 of 1990 for declaration of his title on the basisof adverse possession. After considering the oral evidence anddocumentary evidence, the Executing Court returned the findings thatrespondent No.1 had failed to establish his case that he has clear right,title and interest over the suit property by way of adverse possession.CFollowing observations of the trial court may be referred to in thiscontext:- “Next we have to examine the other aspect of the matter, i.e., weare required to determine all the questions including questionrelating to right, title and interest of the suit property which arisesDunder application u/R 97 or 99. We have initially observed thatthere is a title suit pending where the question about theacquisition of title by the petitioner by way of adverse possessionis the subject matter. It is to be carefully thought whether at thisstage it will be proper to pass any observation on a matter whichis already pending before a competent Court of law. We cannotEignore that title suit is yet to be decided conclusively and pendingthe suit we should not pass any comment about petitioner’s claim.

Be that as it may, let us find out as to how far the petitioner hasbeen able to establish his assertion that he has acquired right, titleand interest over the suit property by way of adverse possession.

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Therefore, we find from the evidence of PW1 that it is not whollytrustworthy and from his oral evidence it is very difficult to appre-ciate the petitioner’s case. It is not clear as to how and on whatdate Tarapada Dutta, the admitted owner was disposed or in whatmanner Iqbal Singh came to possess and occupy the suitGproperty. The elements for asserting right by adverse possessionhave not at all been proved in this case. Rather, there has beenno attempt by the petitioner to establish his acquisition of title byway of adverse possession.

In a proceeding u/s 21 Rules 98 and 99 it is even more essential toestablish his right so as to seek relief. The whole burden wasupon the PW1 but he failed miserably.”

20. Thus, the executing court returned categorical finding thatappellant has failed to prove his right, title and interest and hisapplication deserves to be rejected. The High Court in appeal filed byrespondent No.1 without upsetting the finding of the Executing Courtthat respondent No.1 failed to prove his title by adverse possessionallowed the appeal by making following observations:- “Be that as it may, the question whether the appellant hasobtained any title in respect of the suit property by way ofadverse possession or not is not being decided by this Court andthus this Court is not going into the said question. But the factremains that the appellant was very much in possession of thesuit property when the respondent No.1 took delivery ofpossession of the suit property through the Court’s bailiff withoutany proceeding being initiated against the appellant and withoutthe appellant being served with any prior notice with regard tosuch delivery of possession…………..”

21. The amendments made in Order XXI Rules 97 to 103 byCode of Civil Procedure (Amendment) Act, 1976 came to beconsidered by this Court in Shreenath and Another Vs. Rajesh andOthers, (1998) 4 SCC543. This Court while noticing the question,which had arisen in the above case has made following observations inparagraph Nos. 2, 3 and 5:- “2. The courts within their limitation have been interpreting theprocedural laws so as to conclude all possible disputes pertainingto the decretal property which is within its fold in an executionproceeding, i.e., including what may be raised later by way ofanother bout of litigations through a fresh suit. Similarlylegislatures equally are also endeavouring by amendments toachieve the same objective. The present case is one in thisregard. Keeping this in view, we now proceed to examine thepresent case.

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3. In interpreting any procedural law, where more than oneinterpretation is possible, the one which curtails the procedurewithout eluding justice is to be adopted. The procedural law isalways subservient to and is in aid of justice. Any interpretationwhich eludes or frustrates the recipient of justice is not to befollowed.

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5. The question raised is, whether the third party in possession ofa property claiming independent right as a tenant not party to adecree under execution could resist such decree by seekingadjudication of his objections under Order 21 Rule 97 of the CivilProcedure Code?”

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22. In the above case, respondent No.1 filed a suit forredemption of mortgage against respondent No.2, which was decreed.The decree directed the delivery of vacant possession of the mortgagedproperty to the applicant (respondent No. 1). In the said suit, theappellants were not parties. The appellant, who claimed to be inDpossession, obstructed the execution of the decree on the ground thatthey were the tenants in the shop from much before the execution of themortgage. In the above context, this Court noticed the amendmentsmade in Order XXI. In paragraph Nos. 11, 13 and 16, following was laiddown:- E

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“11. So, under Order 21 Rule 101 all disputes between thedecree-holder and any such person is to be adjudicated by theexecuting court. A party is not thrown out to relegate itself to thelong-drawn-out arduous procedure of a fresh suit. This is tosalvage the possible hardship both to the decree-holder and theother person claiming title on their own right to get it adjudicatedin the very execution proceedings. We find that Order 21 Rule 35deals with cases of delivery of possession of an immovableproperty to the decree-holder by delivery of actual physicalpossession and by removing any person in possession who is boundby a decree, while under Order 21 Rule 36 only symbolicpossession is given where the tenant is in actual possession.Order 21 Rule 97, as aforesaid, conceives of cases wheredelivery of possession to the decree-holder or purchaser isresisted by any person. “Any person”, as aforesaid, is wide enoughto include even a person not bound by a decree or claiming right F

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in the property on his own including that of a tenant including astranger.

13. So far sub-clause (1) of Rule 97 the provision is the same butafter the 1976 Amendment all disputes relating to the propertymade under Rules 97 and 99 are to be adjudicated under Rule101, while under unamended provision under sub-clause (2) ofRule 97, the executing court issues summons to any such personobstructing possession over the decretal property. Afterinvestigation under Rule 98 the court puts back a decree-holder inpossession where the court finds obstruction was occasionedwithout any just cause, while under Rule 99 where obstructionwas by a person claiming in good faith to be in possession of theproperty on his own right, the court has to dismiss thedecree-holder’s application. Thus even prior to 1976, right of anyperson claiming right on his own or as a tenant, not party to thesuit, such person’s right has to be adjudicated under Rule 99 andhe need not fall back to file a separate suit. By this, he is savedfrom a long litigation. So a tenant or any person claiming a right inthe property on the own, if resists delivery of possession to thedecree-holder, the dispute and his claim has to be decided afterthe 1976 Amendment under Rule 97 read with Rule 101 and priorto the amendment under Rule 97 read with Rule 99. However,under the old law, in case order is passed against the personresisting possession under Rule 97 read with Rule 99 then byvirtue of Rule 103, as it then was, he was to file a suit to establishhis right. But now after the amendment one need not file suiteven in such cases as all disputes are to be settled by theexecuting court itself finally under Rule 101.

16. In Noorduddin v. Dr K.L. Anand, (1995) 1 SCC 242 it isheld: (SCC p. 249, para 8)

“8. Thus, the scheme of the Code clearly adumbrates that whenan application has been made under Order 21 Rule 97, thecourt is enjoined to adjudicate upon the right, title and interestclaimed in the property arising between the parties to aproceeding or between the decree-holder and the personclaiming independent right, title or interest in the immovable AB

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Aproperty and an order in that behalf be made. Thedetermination shall be conclusive between the parties as if itwas a decree subject to right of appeal and not a matter to beagitated by a separate suit. In other words, no otherproceedings were allowed to be taken. It has to beremembered that preceding Civil Procedure Code AmendmentBAct, 1976, right of suit under Order 21 Rule 103 of 1908 Codewas available which has been now taken away. By necessaryimplication, the legislature relegated the parties to anadjudication of right, title or interest in the immovable propertyunder execution and finality has been accorded to it. Thus, theCscheme of the Code appears to be to put an end to theprotraction of the execution and to shorten the litigationbetween the parties or persons claiming right, title and interestin the immovable property in execution.”

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23. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust andDAnother, (1998) 3 SCC 723, a Three-Judge Bench had occasion toconsider provisions of Order XXI Rules 97, 101, 102 and 103 as amendedby Code of Civil Procedure (Amendment) Act, 1976. In paragraphNos. 9 and 10, following was laid down:- “9. At the outset, we may observe that it is difficult to agree withEthe High Court that resistance or obstructions made by a thirdparty to the decree of execution cannot be gone into under Order21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Codeare subsumed under the caption “Resistance to delivery ofpossession to decree-holder or purchaser”. Those rules areintended to deal with every sort of resistance or obstructionsFoffered by any person. Rule 97 specifically provides that whenthe holder of a decree for possession of immovable property isresisted or obstructed by “any person” in obtaining possession ofthe property such decree-holder has to make an applicationcomplaining of the resistance or obstruction. Sub-rule (2) makesGit incumbent on the court to proceed to adjudicate upon suchcomplaint in accordance with the procedure laid down.

10. It is true that Rule 99 of Order 21 is not available to anyperson until he is dispossessed of immovable property by thedecree-holder. Rule 101 stipulates that all questions “arisingbetween the parties to a proceeding on an application under Rule H

97 or Rule 99” shall be determined by the executing court, if suchquestions are “relevant to the adjudication of the application”. Athird party to the decree who offers resistance would thus fallwithin the ambit of Rule 101 if an adjudication is warranted as aconsequence of the resistance or obstruction made by him to theexecution of the decree. No doubt if the resistance was made bya transferee pendente lite of the judgment-debtor, the scope ofthe adjudication would be shrunk to the limited question whetherhe is such a transferee and on a finding in the affirmativeregarding that point the execution court has to hold that he has noright to resist in view of the clear language contained in Rule 102.Exclusion of such a transferee from raising further contentions isbased on the salutary principle adumbrated in Section 52 of theTransfer of Property Act.

24. To the same effect is the judgment of this Court in GhasiRam and Others Vs. Chait Ram Saini and Others, (1998) 6 SCC200. Another judgment, which need to be noticed is judgment of thisCourt in Ashan Devi and Another Vs. Phulwasi Devi and Others,(2003) 12 SCC 219. In the above case, a decree of specificperformance of contract was obtained on 08.11.1990. Decree was putin execution by the decree-holder, in pursuance of which execution,possession was also obtained on 05.09.1996 through Court. A petitionwas filed under Order XXI Rule 99 before the Executing Court claimingthat the objector being not party to the suit for specific performance,they cannot be dispossessed in execution of the decree. It wascontended by the objector that they have purchased the property by saledeed in the year 1985 and decree in the absence of the Objectors whowere necessary parties to the suit, is not executable. The applicationwas allowed by the Executing Court and objectors were put inpossession, against which order, an appeal was filed in the High Court.High Court had allowed the appeal holding that the Objectors were notactually and physically dispossessed, the application under Order XXIRule 99 of the Code was not maintainable and the executing court couldnot have decided the competing claims of the parties to the property inthe course of execution proceedings. The matter was taken to thisCourt, where this Court after noticing the relevant provisions haveinterpreted the provisions of Order XXI Rules 99 and 101. This Courtheld that the purpose of amendment brought by Code of Civil Procedure AB

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A(Amendment) Act, 1976 was to enable the third parties to seekadjudication of their rights in execution proceedings with a view to cur-tail the prolongation of litigation. Following was laid down in paragraphNos. 25, 28, 29 and 30:- “25. In interpreting the provisions of Order 21 Rule 97 of theCode and the other provisions in the said order, the aims and objectsfor introducing amendment to the Code cannot be lost sight of.Under the unamended Code, third parties adversely affected ordispossessed from the property involved, were required to fileindependent suits for claiming title and possession. The legislaturepurposely amended provisions in Order 21 to enable the third partiesto seek adjudication of their rights in execution proceedingsthemselves with a view to curtail the prolongation of litigation andarrest delay caused in execution of decrees. See Bhag Mal v.Ch. Parbhu Ram, (1985) 1 SCC 61.

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28. In view of the discussion aforesaid, in our opinion, the executingcourt was well within law in recording evidence and adjudicatingthe claim of the third party. The executing court rightly rejectedthe preliminary objection to the maintainability of application ofthe objectors under Order 21 Rule 99 of the Code and decidedthe other issues on merits of their claims arising between thedecree-holder and the objectors.

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29. The High Court in appeal mainly concentrated its decision onthe question of tenability of application under Order 21 Rule 99 atthe instance of the objectors and having rejected the said applicationdid not in detail deal with other issues on merits arising betweenFthe decree-holder and the objectors. The issues on merits whichwere liable to be re-examined by the appellate court, as the firstcourt of facts and law, were:

(1) Whether the decree-holder at the time of institution of suithad knowledge of the execution of the registered sale deedsGin favour of the objectors and yet they deliberately avoidedto make them as parties to the suit and thus obtained incollusion with the vendors an ex parte decree of specificperformance of the contract.

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(2) Whether the objectors had full knowledge of existence ofprior agreement of sale executed by the vendors in favourof the decree-holder and despite such knowledge theypurchased the suit property to frustrate the agreementexisting in favour of the decree-holder.

30. As the appellate court, having rejected the objectors’application under Order 21 Rule 99, has not in greater detail goneinto the contested issues on merits, it is necessary to set aside theimpugned order of the High Court and remand the case to it fordecision of the appeal afresh in accordance with law.”

25. The above judgment of this court clearly lays down that allissues between the parties in application under Order XXI Rules 99, 100and 101 need to be examined by executing court and decided.

26. The use of the words “all questions (including the questionsrelating to right, title or interest in the property) arising between theparties to a proceeding on an application under Rule 97 or Rule 99…………” has to be given meaning and full play. It is also relevant tonote that prior to Amendment, 1976, under Rule 103, the aggrieved partycould have brought a suit for determination of rights between them butby Amendment, 1976, Rule 103 has been amended to the followingeffect:- “103.Orders to be treated as decrees.— Where anyapplication has been adjudicated upon under rule 98 or rule 100,the order made thereon shall have the same force and be subjectto the same conditions as to an appeal or otherwise as if it were adecree.”

27. The purpose of amendment under Rule 103 is also that anyadjudication made under Rule 101 shall have same force and be subjectto the same conditions as to an appeal or otherwise as if it was a decree.Rule 101, thus, affords an opportunity to get all issues relating to right,title or interest in the property to be determined. When the respondentNo.1 filed his application claiming to be put back into possession, it wasobliged to establish its right, title or interest in the property without whichhis application could not have been allowed. The Executing Court hasconsidered the application of respondent No.1 in right perspective andhas clearly held that respondent No.1 failed to prove his title by adversepossession, hence application deserves to be rejected.

A

B

C

D

E

F

G

H

A28.High Court committed error in observing that in applicationproceedings under Order XXI Rules 99, 100 and 101, the Court is not todecide such question. Without determination of right, title or interest, theapplication could not have been allowed. We having already extractedthe observations of the High Court, where it clearly held that the title inrespect of the property by way of adverse possession need not be goneBinto in the appeal before it. The above observation of the High Courtwas erroneous. In the proceeding under Order XXI Rules 99, 100 and101, right, title or interest has to be determined and without establishingright, title or interest, the respondent No.1 cannot claim that he should beput back into possession. We do not accept the submission of the learnedCcounsel for the respondent that on mere fact that respondent No.1 wasin possession of the premises prior to being dispossessed, they should beput back into possession. For putting back into possession, therespondent No.1 was obliged to establish his title to the property byadverse possession, without which, he could not have asked the Court toput him back into possession. The High Court clearly erred in allowingDthe appeal and the Executing Court has rightly rejected the applicationfiled by respondent No.1. We may further notice that suit No.211 of1990 filed by respondent No.1 seeking declaration of title to the propertyby adverse possession has been subsequently dismissed by decree on16.03.2009 and no steps have been taken for restoration of the suit.E

29. We do not find any error in the order passed by the ExecutingCourt and the High Court committed error in allowing the appeal,directing the respondent No.1 to be put back into possession. In view ofthe foregoing discussions, we allow this appeal and set aside thejudgment of the High Court dated 15.12.2009 and restore the order ofFthe Executing Court dated 10.08.2004. Parties shall bear theirown costs.

Kalpana Kr. Tripathy

Appeal allowed.

G

H