BANGALORE DEVELOPMENT AUTHORITY versus N. NANJAPPA AND ANOTHER on 6 December 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 21.03.2016 passed by the High Court of Karnataka atBengaluru in Writ Petition Nos. 37943-37944/2015 (GM-CPC), by whichthe High Court has dismissed the said writ petitions preferred by theoriginal applicant – Bangalore Development Authority (for short, ‘BDA’)and has confirmed the order passed by the Executing Court dismissingthe applications filed by BDA under Order XXI Rule 97 CPC in ExecutionCase No. 2713/2012 filed by respondent No.1 herein (decree holder)against respondent No.2 herein (judgment debtor), the BDA has preferredthe present appeals.

2. The facts leading to the present appeals in a nutshell are asunder:

That land admeasuring 01 acre 15 guntas (disputed land inquestion) in Survey No. 12/2 of Geddalahalli Village was acquired byBDA in the year 1977 under Section 17 of the Bangalore DevelopmentAuthority Act, 1976 (hereinafter referred to as the ‘1976 Act’). A finalnotification came to be issued in respect of the said land vide notificationdated 02.08.1978 under Section 19 of the 1976 Act. Award came to bepassed vide award dated 12.06.1981 awarding compensation ofRs.17,393.75. According to the appellant – BDA, possession of theacquired land was taken over by the Government as per the mahazardated 16.07.1981 and was handed over to the Engineering Section ofBDA. Thereafter, a notification under Section 16(2) of the LandAcquisition Act, 1894 came to be issued on 01.04.1982 evidencing thefactum of taking possession of the acquired land. It appears that after aperiod of approximately 17 years and after vesting of the acquired landin question in favour of BDA, respondent no.1 herein entered into an

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Aagreement of lease with respondent no.2 herein in respect of part of theland in question vide agreement of lease dated 16.08.1999. Thatrespondent no.1 herein thereafter filed a civil suit being O.S. No. 3797/2000 against respondent no.2 herein before the City Civil Court, Bangalorefor ejectment. It is to be noted that in the said suit, the appellant-BDAwas not arrayed as a party.B

2.1 The Trial Court vide judgment and decree dated 20.03.2008dismissed the said suit. However, by judgment and order dated 13.06.2012,the High Court allowed the Regular First Appeal No. 468/2008 filed byrespondent no.1 herein and consequently decreed the suit filed byrespondent no.1 herein. Respondent No.2 herein challenged the judgmentCand order passed by the High Court before this Court by way of specialleave petition, which came to be dismissed by this Court vide order dated11.02.2013. Thereafter, respondent no.1 herein – decree holder filedExecution Petition being E.P.No. 2713/2012. It appears that having cometo know of the judgment and decree passed by the High Court allowingDthe appeal, the appellant-BDA filed a suit being O.S. No. 2070/2013before the City Civil Court, Bangalore, seeking a declaration that thelease agreement between respondent no.1 herein-decree holder andrespondent no.2 herein – judgment debtor vide agreement of lease dated16.08.1999 in respect of the suit schedule property is null and void andalso prayed for permanent injunction to restrain respondent no.1 herein-Eoriginal landowner–decree holder from executing the decree passed inO.S. No. 3797/2000.

2.2 BDA also filed two applications under Order XXI Rule 97read with Section 151 CPC in the execution proceedings for impleadmentand for deferring the execution proceedings till disposal of suit filed by itFbeing O.S. No. 2070/2013. The aforesaid two applications filed by BDAcame to be rejected by the Executing Court vide common order dated29.01.2015 mainly on the ground that there was no material on record toshow that pursuant to the acquisition, the BDA had taken possession ofthe said land and therefore the BDA cannot obstruct or object to theGexecution of the decree passed by the competent Court.

2.3 Feeling aggrieved and dissatisfied with the common orderpassed by the Executing Court rejecting the applications filed by BDAunder Order XXI Rule 97 r/w Rule 101 CPC, the obstructor-BDA filedtwo writ petitions before the High Court being Writ Petition Nos. 37943-H37944/2015. By the impugned judgment and order, the High Court has dismissed the aforesaid two writ petitions. Hence, the present appealsare at the instance of the obstructor-BDA.

3. Learned counsel appearing on behalf of the appellant-BDAhas vehemently submitted that while rejecting the applications filed byBDA to implead BDA in the execution petition as obstructor, both, theHigh Court as well as the learned Executing Court have misread andmisinterpreted Order XXI Rule 97 r/w Rule 101 CPC.

3.1 It is submitted that for raising the obstruction/objection to thedecree which is sought to be executed, the obstructor need not be inpossession and it is enough that the obstructor claims title with respectto the said property. Though in the present case it is the case of BDAthat possession was handed over by Government to BDA – EngineeringSection.

3.2 It is submitted that in the present case as such the property/land in question has already been acquired by BDA and even the awardwas also declared way back on 12.06.1981 and even according to BDAthe possession of the land in question was already taken over and washanded over to the Engineering Section and thereafter even notificationunder Section 16(2) of the Land Acquisition Act, 1894 was also issuedvesting the suit land absolutely with BDA and thereafter collusively and/or illegally respondent no.1 herein entered into agreement of lease withrespondent no.2 herein.

3.3 It is submitted that as such in the present case even thesubstantive suit filed by BDA being O.S. No. 2070/2013 to declare theagreement of lease between the decree holder and judgment debtor isnull and void is pending. It is submitted that therefore the ExecutingCourt ought to have allowed the impleadment application filed by BDA,who claims the title on the basis of the acquisition of the land under the1976 Act.

3.4 It is further submitted that Order XXI Rule 97 and Rule 101CPC are to be read together. It is submitted that as per Order XXI Rule101, all questions including questions relating to right, title or interest inthe property arising between the parties to a proceeding on an applicationunder Order XXI rule 97 or rule 99 or their representatives, and relevantto the adjudication of the application, shall be determined by the ExecutingCourt dealing with the applications. It is further submitted that whileraising an obstruction/objection to the execution of the decree, the AB

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Aobstructor need not prove his/its possession but when it claims right, titleor interest in the suit property, the same is required to be determined,decided and/or adjudicated upon by the Executing Court in such anapplication.

3.5 Making the above submissions, it is prayed to allow the presentBappeals.

4. Learned counsel appearing on behalf of the respondents havetried to support the orders passed by the High Court as well as theExecuting Court. It is submitted that according to the decree holder –original landowner, the actual possession of the land in question has notCbeen taken over by BDA and the possession of the land in question iswith the judgment debtor – respondent no.2 herein, which is required tobe handed over to respondent no.1 herein – decree holder, pursuant tothe judgment passed by the High Court. It is submitted that the ExecutingCourt rightly rejected the applications filed by BDA under Order XXIRule 97 CPC. It is submitted that as rightly observed by the ExecutingDCourt and confirmed by the High Court that though the land in questionmight have been acquired, unless and until the possession by theobstructionist is established and proved, such an application under OrderXXI Rule 97 CPC is liable to be dismissed and the same was rightlydismissed by the Executing Court and is rightly confirmed by the HighECourt.

5. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that the BDA is claimingright, title or interest in the land in question being acquired under theFprovisions of the 1976 Act. It is required to be noted that the leaseagreement between the decree holder and the judgment debtor issubsequent to the acquisition of the suit land. Therefore, it is the case onbehalf of the appellant – BDA that such a transaction is null and voidonce the suit land for which the lease agreement was executed wasGacquired under the provisions of the 1976 Act. Moreover, the awardwas also declared and a notification under Section 16(2) of the LandAcquisition Act evidencing taking over possession of the land by BDAwas also published. Therefore, when the appellant-BDA which hassubmitted the obstruction/objection in the execution proceedings filed bythe decree holder against the judgment debtor with respect to suit landH

BANGALORE DEVELOPMENT AUTHORITY v. N. NANJAPPAAND ANOTHER [M. R. SHAH, J.]

which was acquired by BDA and when the BDA claims right, title orinterest in the suit property, such obstruction/objection was required tobe adjudicated upon by the Executing Court while considering theapplication/obstruction under Order XXI Rule 97 or Rule 99 CPC. Atthis stage, Order XXI Rule 97 and Order XXI Rule 101 CPC are requiredto be referred to and which read as under:

“97. Resistance or obstruction to possession of immovable property– (1) Where the holder of a decree for the possession of immovableproperty or the purchaser of any such property sold in executionof a decree is resisted or obstructed by any person obtainingpossession of the property, he may make an application to theCourt complaining of such resistance or obstruction.

2. Where any application is made under sub-rule (1), the Courtshall proceed to adjudicate upon the application in accordancewith the provisions herein contained.

101. Question to be determined – All questions (including questionsrelating to right, title or interest in the property) arising betweenthe parties to a proceeding on an application under rule 97 or rule99 or their representatives, and relevant to the adjudication of theapplication, shall be determined by the Court dealing with theapplication, and not by a separate suit and for this purpose, theCourt shall, notwithstanding anything to the contrary contained inany other law for the time being in force, be deemed to havejurisdiction to decide such questions.”

5.1 Therefore, as per Order XXI Rule 101 CPC, all questionsincluding questions relating to right, title or interest in the property arisingbetween the parties to a proceeding on an application under Order XXIrule 97 or rule 99 CPC and relevant to the adjudication of the applicationshall have to be determined by the Court dealing with the application.For that a separate suit is not required to be filed. Order XXI Rule 97 iswith respect to resistance/obstruction to possession of immovableproperty.

6. In the instant case, it is the specific case of the appellant –BDA that pursuant to the acquisition of the land in question, the BDAhas become the absolute owner and the said land is vested in the BDAand possession was already taken over by the BDA and the land washanded over to the Engineering Section. Therefore, the applications A

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Asubmitted by BDA for impleadment in the execution proceedings andthe obstruction against handing over the possession to the decree holderwere required to be adjudicated upon by the Executing Court by impleadingthe BDA as a party to the execution proceedings. Though, in the presentcase, a substantive suit being O.S. No. 2070/2013 filed by the BDAagainst the decree holder and the judgment debtor to declare the leaseBagreement as null and void is pending, irrespective of the same,considering Order XXI Rule 101 CPC, the question relating to right, titleor interest of the BDA in the suit property was required to be adjudicatedupon by the Executing Court.

6.1 In view of the above, the order passed by the Executing CourtCdismissing the applications filed by the BDA for impleadment in theexecution proceedings and/or dismissing the obstruction application, andthe impugned order passed by the High Court, are unsustainable and thesame deserve to be quashed and set aside.

7. Accordingly, the present appeals succeed. The impugnedDjudgment and order passed by the High Court dated 21.03.2016 dismissingthe writ petitions filed by the appellant herein – BDA and order dated29.01.2015 passed by the Executing Court dismissing the applicationfiled by BDA for impleadment as well as dismissing obstruction applicationare hereby quashed and set aside. The appellant is permitted to beEimpleaded in the execution proceedings. The Executing Court is directedto implead the appellant herein – BDA in the execution petition andthereafter adjudicate upon the obstruction/objection raised by BDAincluding the question relating to right, title or interest claimed by BDA inthe suit land on the basis of the acquisition of the suit property/landacquired under the provisions of the 1976 Act, in exercise of powersFunder Order XXI rule 97 r/w Rule 101 CPC. The aforesaid shall becompleted within a period of six months from the date of receipt of acopy of this judgment.

8. The instant appeals are allowed to the aforesaid extent.However, in the facts and circumstances of the case, there shall be noGorder as to costs.

Devika Gujral

Appeals allowed.

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