JINI DHANRAJGIR & ANR versus SHIBU MATHEW & ANR. ETC. on 16 May 2023

[2023] 5 S.C.R. 551

JINI DHANRAJGIR & ANR.

v.

SHIBU MATHEW & ANR. ETC.

(Civil Appeal Nos. 3758 – 3796 of 2023)

MAY 16, 2023

[A. S. BOPANNA AND DIPANKAR DATTA, JJ.]

Code of Civil Procedure, 1908 : s. 47, Ord. XXI r. 97 –Execution of decrees– Resistance to delivery of possession to decree-holder or purchaser – Original plaintiff filed suit for declarationof title and recovery of possession against the defendants – Suitdecreed in favour of the plaintiff and the defendants directed to putthe plaintiff in possession of the suit property – In appeal, decreemodified to the extent of paying compensation to defendants in lieuof part-payment of purchase consideration made by defendant no.1 and thereafter, the defendants would surrender the vacantpossession of the property – Execution application by the appellant-son and daughter of the plaintiff – Executing Court held that theobjections filed by the respondents, who had purchased the propertyfrom defendant no. 1 to be maintainable and deemed it necessaryto adjudicate the same on their own merits – On appeal, held: Claimregarding right, title and interest in respect of their respective sharesin the decretal property, as raised by the respondents, cannot bethrown out at the threshold since it is well within their rights tocontest the application u/ Ord. XXI r. 97 filed by the appellants –Since evidence is required to be led before it, the Executing Courtwas justified in holding the objections to be maintainable at thisstage not in the sense that the decree cannot be executed againstthem but in the sense that a prima facie case had been set up for anenquiry to be conducted, and posting the matter for evidence to beled by the parties – Upon determination of the questions referred toin r. 101, the Executing Court would proceed in the mannermandated by r. 98 –Thus, interference with the order under challengenot called for – Executing Court to deal with the application of theappellants u/Ord. XXI r. 97 together with the objections raised bythe respondents on their own merits – Appellants have been deprivedof the fruits of the decree for over two decades, it would be just and

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Aproper that the Executing Court decides the issue as early aspossible.

Constitution of India : Art. 136 – Power to grant leave under– Appellant directly coming before this Court against the order ofthe Executing Court without subjecting such orders to any challengeBbefore the High Court – Permissibility of – Held: This Court shouldnot entertain such matters – Litigants should not be indulged tohop, skip and jump to reach the Supreme Court for the remedy isquick and more efficacious – Supreme Court in its discretion doesentertain special leave petitions directly from orders of tribunals/courts without the High Court having been approached only inCmatters where substantial questions of general importance areinvolved or where a similar issue is pending for its consideration –This Court would not allow a party invoking the ‘special leave’jurisdiction to bypass the remedy available – Alternative remedy.

Dismissing the appeals and Contempt petition, the CourtD

Conclusion

Dismissing the appeals and Contempt petition, the CourtD

HELD : 1.1 Section 47 CPC, being one of the most importantprovisions relating to execution of decrees, mandates that thecourt executing the decree shall determine all questions arisingbetween the parties to the suit or their representatives in relationto the execution, discharge, or satisfaction of the decree and thatEsuch questions may not be adjudicated in a separate suit. What isintended by conferring exclusive jurisdiction on the executingcourt is to prevent needless and unnecessary litigation and toachieve speedy disposal of the questions arising for discussionin relation to the execution, discharge or satisfaction of theFdecree. Should there be any resistance offered or obstructionraised impeding due execution of a decree made by a court ofcompetent jurisdiction, the provisions of Rules 97, 101 and 98 ofOrder XXI enable the executing court to adjudicate the inter seclaims of the decre appellants have been deprived of the fruits ofthe Decree for over two decades, it would only be just and properGto request the Executing Court to proceed to decide thecontentious issues in accordance with law e-holder and the thirdparties in the execution proceedings themselves to avoidprolongation of litigation by driving the parties to instituteindependent suits. No wonder, the provisions contained in RulesH97 to 106 of Order XXI CPC under the sub-heading “Resistance to delivery of possession to decree-holder or purchaser” have beenheld to be a complete code in itself. Rules 97 to 103 of OrderXXI provide the sole remedy both to parties to a suit as well asto a stranger to the decree put to execution. [Para 17][565-F-G;566-A-C]

1.2 In terms of the ordainment of Rule 102 of Order XXI,Rules 98 and 100 thereof would not apply to resistance orobstruction in execution of a decree for the possession ofimmovable property by a person to whom the judgment-debtorhas transferred the property after the institution of the suit inwhich the decree was passed. [Para 23][567-E]

1.3 The submission that the respondents are pendente litetransferees, the doctrine of lis pendens applies, and in view of theclear terms of Rule 102, the objections were not maintainable;therefore, the respondents are not entitled to the protection ofhaving an adjudication of their claims in terms of Rule 98, thoughattractive at first blush, pales into insignificance in view of thepeculiar facts obtaining here. If, indeed, there have been transferspost dismissal of the Suit during the time when there was nopending lis, it would be most appropriate for the Executing Courtto determine the question as to whether any of the transfers madeby defendant no. 3 to the respondents would attract Rule 102.This would indeed involve an exercise of leading of evidence bythe parties and merely because the Suit was ultimately decreedon 21st October 2000 and ultimately was upheld by this Courtwith a minor modification of the amount of compensation, thatwould not be sufficient justification to throw out the objectionsraised by the respondents as being devoid of merit. [Paras 24and 25][567-F-G; 568-A-B]

1.4 The impugned order of the Executing Court bearing inmind the unchallenged order dated 5th April 2018 passed by theHigh Court has found the objections to be maintainable, at leastwarranting an enquiry. On facts, there is no legal infirmity in suchorder deserving interference. [Para 27][568-E]

1.5 Simply because this Court did not interfere with thefirst appellate decree dated 11th February 2014 is no ground to A

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Ahold that such order would bar an enquiry of the naturecontemplated by Rule 101. This Court would not allow its visionto be colored by treating the order dated 13th October 2014 asbringing an end to the controversies between the decree-holdersand the strangers/third parties, who were not before it. While itcannot be gainsaid that the dignity, prestige and majesty of thisBCourt has to be maintained, yet, merely because the issuebetween the Appellants on the one hand and defendant nos. 2and 3 on the other has attained finality, the same would not affordany justification for this Court, much less sufficient justification,to uphold the contention of the appellants which has the effect ofCsubverting, rather than effectuating, the substantive right thatRules 97 to 103 of Order XXI confer on strangers/third partiesnot bound by the decree for recovery of possession. The claimregarding right, title and interest in respect of their respectiveshares in the decretal property, as raised by the respondents,cannot be thrown out at the threshold since it is well within theirDrights to contest the application under Order XXI Rule 97, CPCfiled by the appellants. Since evidence is required to be led beforeit, the Executing Court was well-nigh justified in holding theobjections to be maintainable at this stage not in the sense thatthe decree cannot be executed against them but in the senseEthat a prima facie case had been set up for an enquiry to beconducted, and posting the matter for evidence to be led by theparties. Upon determination of the questions referred to in Rule101, the Executing Court would proceed in the manner mandatedby Rule 98. [Para 28][568-E-H; 569-A-C]

F1.6 This Court should not entertain the appeals against theorder of the Executing Court without such order having beensubjected to any challenge by the Appellants before the HighCourt. Litigants should not be indulged to hop, skip and jump toreach the Supreme Court for no better reason than the remedy is quick and more efficacious. As a matter of practice, the SupremeGCourt in its discretion does entertain special leave petitionsdirectly from orders of tribunals/courts without the High Courthaving been approached only in matters where substantialquestions of general importance are involved or where a similarissue is pending for its (the Supreme Court’s) consideration. TheH

power to grant leave under Article 136 itself being discretionary,this Court would not allow a party invoking the ‘special leave’jurisdiction to bypass the remedy available at the level of theHigh Court without the two situations being satisfied. Indeed,this is not one such case. [Para 29][569-D-F]

1.7 There is no reason to interfere with the order underchallenge. It is upheld. The Executing Court shall proceed todeal with the application of the appellants under Rule 97 of OrderXXI CPC together with the objections raised by the respondentson their own merits and without being influenced by anyobservation made in this order which has been necessitated onlyfor disposal of the present appeals. Having regard to the fact thatthe appellants have been deprived of the fruits of the Decree forover two decades, it would only be just and proper to request theExecuting Court to proceed to decide the contentious issues inaccordance with law as early as possible without grantingunnecessary adjournments to any of the parties. [Para 30-32][569-G-H; 570-A-B]

1.8 The Contempt Petition initiated by the appellants topunish defendant nos. 2 and 3 for willful disobedience of the orderpassed by this Court in Special Leave Petition (C) No. 24344/2014, at this stage, does not survive; hence, is dismissed. [Para33][570-C]

The General Manager of The Raj Durbhunga, Underthe Court of Wards vs. Maharajah Coomar RamaputSingh (1871-72) 14 Moo IA 605; Kuer Jang Bahadurvs. Bank of Upper India Ltd. Lucknow AIR 1925 Oudh448; Martin Burn Ltd. vs. Corporation of Calcutta AIR1966 SC 529 : [1966] SCR 543; Usha Sinha vs. DinaRam (2008) 7 SCC 144 : [2008] 4 SCR 1192; Board ofTrustees vs. Nikhil Gupta (2015) 10 SCC 1339; SriramHousing Finance and Investments India Ltd. vs. OmeshMishra Memorial Charitable Trust (2022) SCC OnLineSC 794; Firm Ganpat Ram Rajkumar vs. Kalu Ram andOrs. (1989) Supp 2 SCC 418 : [1989] 1 Suppl. SCR223; Cheeranthoodika Ahmmedkutty & Anr. vs.Parambur Mariakutty Umma & Ors. (2000) 2 SCC 417

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556SUPREME COURT REPORTS

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3758-3796 of 2023.

From the Judgment and Order dated 29.06.2018 of the PrincipalSub-Judge, Kottayam, Kerala in EA Nos. 299, 300, 302, 303, 304, 305,307, 308, 309, 310, 311, 312, 313, 319, 320, 321, 322, 323, 324, 325, 335,344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358,364, 365 of 2017 and 127 of 2018.

With

Contempt Petition (C) No. 2091 of 2018 in Special Leave Petition(C) No. 24344 of 2014.

Shyam Divan, Arvind Minocha, Sr. Advs., George Cherian,Mayank Kshirsagar, Ms. Abha Goel, Ms. Anshula Laroiya, Advs. forthe Appellants.

V. Chitambaresh, Sr. Adv., T. G. Narayanan Nair, M. T. George,Mrs. Susy Abraham, Johns George, C. Venugopal, Ms. Sonal Gupta, K.V. Mohan, Ms. Tessy Varghese, Ms. Tatwender Kaur, K.K. Vinosh,Advs. for the Respondents.

The Judgment of the Court was delivered by DIPANKAR DATTA, J.

Leave granted.

2. More than a century and a half back, the Privy Council (speakingthrough the Right Hon. Sir James Colville) in The General Managerof The Raj Durbhunga, Under the Court of Wards vs. MaharajahCoomar Ramaput Singh[1] lamented that the difficulties of litigants inIndia indeed begin when they have obtained a decree. A reference tothe above observation is also found in the decision of the Oudh JudicialCommissioner’s Court in Kuer Jang Bahadur vs. Bank of UpperIndia Ltd. Lucknow[2]. It was ruled there that the Courts had to becareful to ensure that the process of the Court and the laws of procedurewere not abused by judgment-debtors in such a way as to make thecourts of law instrumental in defrauding creditors, who had obtaineddecrees in accordance with their rights.

1 (1871-72) 14 Moo IA 605

2 AIR 1925 Oudh 448

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A3. Notwithstanding the enormous lapse of time, we are leftawestruck at the observation of the Privy Council which seems to haveproved prophetic. The observation still holds true in present times andthis case is no different from cases of decree-holders’ woes commencingwhile they are in pursuit of enforcing valid and binding decrees passedby civil courts of competent jurisdiction. The situation is indeed disquieting,Bviewed from the perspective of the decree-holders, but the law, as itstands, has to be given effect whether the court likes the result or not. InMartin Burn Ltd. vs. Corporation of Calcutta[3], this Court held thata court has no power to ignore that provision to relieve what it considersa distress resulting from its operation.C

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4. The challenge in these civil appeals by the Appellants herein,daughter and son of Mrs. Tara Cherian (“Mrs. Cherian”, hereafter), isto the common interim order of the Principal Sub-Judge, Kottayam, (“theExecuting Court”, hereafter) dated 29[th] June, 2018. The Executing Courtwas seized of an execution application under Section 47 read with OrderDXXI Rule 97 of the Civil Procedure Code, 1908 (“CPC”, hereafter) filedby the Appellants, seeking enforcement of the decree dated 21[st] October,2000 (“Decree”, hereafter) and removal of resistance put forth by thecontesting respondents herein (“Respondents”, hereafter). By theimpugned order, the Executing Court held several objections filed by theRespondents to be maintainable and deemed it necessary to adjudicateEthe same on their own merits, after due recording of evidence.

5. Having regard to the nature and extent of controversy raised, adecision on these appeals should not have necessitated noting the factstriggering the appeals and the rival contentions advanced across the barin any great depth; however, since the parties have addressed us atFlength, we propose to briefly narrate the essential facts and refer to therival claims as advanced by learned senior counsel for the parties beforerecording our conclusions on such claims.

6. The basic facts arising from the two sets of proceedings, whichwe would presently advert to, are intertwined; hence, it is consideredGappropriate to dissect the same for facility of appreciation.

7. The first part of the factual matrix is that:

a.Mrs. Cherian, as the original plaintiff, instituted OS No. 28/1987 (“the Suit”, hereafter) inter alia against Mr. V.T.

H3 AIR 1966 SC 529

Mathew [defendant no.1], his sons [defendant no. 2, Mr.Thomas Mathew (“Mr. Thomas”, hereafter) and defendantno. 3, Mr. Abraham Mathew (“Mr. Abraham”, hereafter),and Mr. Mathew’s assistant defendant no. 4, Mr. K.T.Joseph (“the Defendants”, wherever referred to collectively,hereafter) for declaration of title of Mrs. Cherian in respectof land measuring in excess of 2.81 acres in VillageNattakom, Kottayam, Taluk, Kottayam District, Kerala(“Suit Property”, hereafter), and recovery of possessionwith mesne profits from the Defendants.

b.Mrs. Cherian contended that Mr. Mathew, the caretaker ofthe Suit Property, had intended to purchase the same fromher deceased husband, that the sale had not been completedas balance consideration was still to be paid, and that in theinterim the Defendants had made constructions on the SuitProperty. The Defendants contended that they were tenantsin respect of the Suit Property through an oral leaseagreement with Mrs. Cherian’s deceased husband and hisbrothers and were entitled to fixity of tenure under theprovisions of the Kerala Land Reform Act, 1963 (for brevity“KLR Act”, hereafter).

c.In course of trial of the Suit, the question of tenancy wasreferred by the trial court to the Land Tribunal under Section125(3) of the KLR Act. In R.C. No. 84/1988, the LandTribunal found that Mr. Mathew was a cultivating tenantentitled to protection under the KLR Act. Based on theobservation of the Land Tribunal, the Suit was dismissedby the trial court on 16[th] November 1989. Challenging thedismissal of the Suit, Mrs. Cherian filed A.S. No. 27/1991before the High Court.

d.Mr. Mathew passed away on 18[th] January 1998, and theproceedings before the High Court continued with his sonsMr. Thomas and Mr. Abraham contesting the appeal.

e.The High Court, allowed A.S. No. 27/1991 on 18[th] December1998, and opined that the Defendants were not entitled tofixity of tenure. The Suit was remanded to the trial courtfor adjudication on other issues.

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Af.A Division Bench of the High Court while hearing CMANo. 34/1999, being an appeal against the aforementionedorder of the Single Judge, dismissed the same on 13[th]December 1999, and confirmed that Mr. Mathew had onlybeen the caretaker of the Suit Property.

Bg.Upon remand, the Suit was decreed on 21[st] October 2000,in favour of Mrs. Cherian and the Defendants were directedto put Mrs. Cherian in possession of the Suit Property.

h.Mr. Thomas and Mr. Abraham filed A.S. No. 219/2001before the High Court. It was partly allowed on 11[th]CFebruary 2014, inter alia, to the extent that the Decreewas modified whereby Mrs. Cherian was required to depositRs. 25,99,250 as compensation in lieu of part-payment ofthe purchase consideration paid by Mr. Mathew, after whichthe Defendants would surrender vacant possession of thedecretal property to her.D

i.The order dated 11[th] February 2014 was carried beforethis Court by Mr. Thomas and Mr. Abraham in S.L.P. (C)No. 24344/2014. On 13[th] October 2014, this Court whiledisposing of the said petition marginally enhanced thecompensation to Rs. 30,00,000.00. The Appellants wereEdirected to deposit the balance compensation, whereafterthe Defendants were required to handover possession ofthe decretal property to the Appellants; the Decree wasotherwise kept undisturbed.

8. This being one part of the factual matrix, we proceed to noticeFthe other part. It begins with proceedings under the KLR Act, beingS.M. Nos. 107/1992 and 55-56/1989 before the Land Tribunal. On 23[rd]January 1993, the Land Tribunal issued a Purchase Certificate to Mr.Mathew in S.M. No. 107/1992, whereby Mr. Mathew was conferredthe status of a cultivating tenant. Pertinently, Mrs. Cherian was put onGnotice but did not ultimately contest the proceedings. After obtaining thePurchase Certificate, parcels of the decretal property were sold by Mr.Mathew to some of the Respondents. Certain other Respondents werealso issued Purchase Certificates in S.M. No. 55/1989 and S.M. No. 56/1989 qua parcels of the decretal property during the period interveningbetween institution of the Suit and much before the same was decreedHon 21[st] October 2000.

JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.[DIPANKAR DATTA, J.]

9. The following subsequent events are of further importance tothe instant case:

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a.The Executing Court on 27[th] May 2017, in E.P. No. 379/2012, accepted the Appellants’ prayers for delivery of thedecretal property, appointed an Advocate Commissioner,and issued directions to deliver possession of the decretalBproperty within 10 days of the order, with the help of therelevant Sub-Inspector of Police.

b.The Commissioner, on 23[rd] June 2017, submitted a report tothe effect that the Respondents objected to the delivery ofpossession to the Appellants.

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c.Subsequently, certain Respondents as objectors filed multipleobjections in the main execution proceedings objecting tothe execution of the Decree and refusing to give possessionto the Appellants. They inter alia contended that they werenot aware of the proceedings in the Suit and became awareof the same only when the Commissioner attempted to takedelivery of possession as per the order of the ExecutingCourt on 27[th] May 2017.

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d.The Appellants then filed a petition before the High Courtunder Article 227 of the Constitution of India. On 5[th] April2018, a Single Judge of the High Court directed theExecuting Court to consider the Appellants’ contentions onthe objections filed by the Respondents and decide the sameon or before 30[th] June 2018.

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e.Upon a contested hearing, the Principal Sub-Judge,Kottayam, being the Executing Court, passed the presentimpugned interim order on 29[th] June 2018.

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10. Mr. Diwan, learned senior counsel for the Appellantscontended that:

a.The pleadings in S.L.P. (C) No. 24344/2014, filed by Mr.Thomas and Mr. Abraham, made no disclosure of anyoneelse being in possession of the decretal property. Further,the conduct of the Respondents was in wilful disobedienceof the Decree passed by the trial court and its affirmationup to and by this Court. The Respondents had no rights in G

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562SUPREME COURT REPORTS

Athe decretal property and hence no locus standi in thematter to resist the Decree which was made two decadesback.

b.The contentions of the Respondents are based on PurchaseCertificate being SM No. 197/1992, obtained by Mr.BMathew from the Land Tribunal, Kottayam. However, theRespondents held no title to the said properties as the personfrom whom the title flowed, i.e., Mr. Mathew himself hadno title to the decretal property.

c.The persons alleging to have purchased different plots inCthe decretal property from Mr. Mathew did not producedocuments of title along with their objection petitions in theExecuting Court.

d.The objections are frivolous and not maintainable and inthe light of the order of this Court dated 13[th] October 2014,Din SLP (C) No. 24344/2014, which had given finality to theseproceedings, the conduct of the Respondents has the effectof nullifying such order.

e.The Appellants had already deposited Rs. 30,00,000 withthe trial court in compliance with this Court’s directions on13[th] October 2014, and that the Respondents were enjoyingEthe decretal property without delivering possession to theAppellants.

f.As per Section 52 of the Transfer of Property Act, 1882,the aforesaid transfers are hit by lis pendens, and wereimpermissible; also, in view of Rule 102 of Order XXI ofFthe CPC, Rules 98 and 100 thereof would not be attractedand the Executing Court misdirected itself in holding theobjections of the Respondents to be maintainable.

11. Mr. Diwan cited the following decisions of this Court in supportof his contentions:G

a.Usha Sinha vs. Dina Ram[4], where this Court, inter alia,held that a pendente lite purchaser had no right to offerresistance or cause obstruction as the purchaser’s rightshad not been crystallised in a decree.

H4 (2008) 7 SCC 144

b.Board of Trustees vs. Nikhil Gupta[5], where this Courtissued directions to the obstructionists to handoverpossession to the petitioner therein in a case where a decreeof eviction was obtained after three decades of litigation.

c.Sriram Housing Finance and Investments India Ltd.vs. Omesh Mishra Memorial Charitable Trust[6], wherethis Court expounded that Order XXI Rule 97 empowers adecree-holder to make an application complaining about anyresistance or obstruction in possession of immovableproperty and that Rule 102 also clarified that Rules 98 and100 would not apply in cases where resistance or obstructionin execution was offered by a transferee pendente lite,where the property was transferred by a judgment debtorto such a person after the institution of a suit in which thedecree sought to be executed was passed.

d.Firm Ganpat Ram Rajkumar vs. Kalu Ram and Ors[7],where this Court held that non-compliance of the orders ofthe Supreme Court, with an objective to mislead the Court,should not lead to frustration of the order.

12. Mr. Diwan, accordingly, appealed that justice of the casedemands setting aside of the impugned order and a direction on theExecuting Court to put the Appellants in possession of the decretalproperty after removing the obstructions raised by the Respondents.

13. Per contra, Mr. Chitambaresh, learned senior counselappearing for the Respondents contended that:

a.Mr. Mathew was a tenant of the entire decretal propertyand on a part thereof he along with Mr. Thomas and Mr.Abraham Mathew had constructed buildings. In S.M. No.107/1992 before the Land Tribunal, Mrs. Cherian was aparty, yet, she did not challenge the Purchase Certificateafter it was issued in favour of Mr. Mathew. Further, twoother Purchase Certificates had been issued by the LandTribunal to certain Respondents in the proceedings beingSM Nos. 55 and 56/1989.

5 (2015) 10 SCC 1339

6 (2022) SCC OnLine SC 794

7 (1989) Supp 2 SCC 418

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Ab.In terms of the decision of this Court in CheeranthoodikaAhmmedkutty & Anr. vs. Parambur MariakuttyUmma & Ors[8], where it was held that in the absence ofany material to doubt the veracity of the PurchaseCertificates due weight should have been given to them asper law, it was submitted that the Purchase Certificate issuedBin suo motu proceedings under Section 72K of the KLRAct in favour of inter alia Mr. Mathew was conclusiveproof of his title, and since the same has remainedunchallenged, would operate as res judicata.

c.The Respondents as objectors had set up title, independentCof the judgment-debtors, and that their objection deservedto be adjudicated by the Executing Court.

d.That apart, the Executing Court had only held the objectors’applications to be maintainable; in such circumstances, thisCourt ought not to interfere when adjudication on meritsDwas yet to be made.

e.Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal[9],is an authority for the proposition that a claim filed pursuantto Section 47 read with Order XXI Rule 97 CPC ismaintainable despite the right being independent of that ofEthe judgment-debtor.

f.The decision in T Vijendradas & Anr. vs. M.Subramanian & Ors[10 ]has held that if any judgment ororder was obtained by fraud, then the same is a nullity; andsince the judgment in A.S. No. 27/1991 was obtained withoutimpleading all the legal representatives of Mr. Mathew, forFthis reason, the proceedings are vitiated by fraud and a nullitydue to suppressio veri.

g.In ITI Ltd. v. Siemens Public CommunicationsNetwork Ltd[11], this Court had noted that despite the vastpowers it had to directly entertain an appeal, litigants shouldGnot be encouraged to bypass other available remedies inthe potential hope of a more efficacious remedy.

8 (2000) 2 SCC 4179 (1997) 3 SCC 69410 (2007) 8 SCC 751H11 (2002) 5 SCC 510

h.The Appellants’ conduct in directly approaching this Courtunder Article 136 of the Constitution of India withoutinvoking the revisional or appellate jurisdiction of theappropriate forum is open to criticism based on the decisionin Columbia Sportswear Company v. Director ofIncome Tax, Bangalore[12], where this Court opined thatthe scope of discretionunder Article 136 of the Constitutionof India while granting special leave was such that only asubstantial question of general importance or one alreadypending before this Court should be entertained, especiallywhen remedies under Article 226 and/or 227 were availableon the same grounds before the High Court.

i.The question of application of lis pendens doctrine doesnot arise on facts and in the circumstances of the presentcase since the sale transactions were effected when no liswas pending.

14. Resting on the aforesaid contentions, Mr. Chitambaresh urgedthat no case for interference has been set up by the Appellants and thatthe Executing Court ought to be left free to decide the objections onmerits.

15. The only issue that we are tasked to decide at this stage is,whether interference with the common order under appeal is called foror not.

16. In our considered view, for more reason than one, relief claimedby the Appellants ought to be declined.

17. Section 47 of the CPC, being one of the most importantprovisions relating to execution of decrees, mandates that the courtexecuting the decree shall determine all questions arising between theparties to the suit or their representatives in relation to the execution,discharge, or satisfaction of the decree and that such questions may notbe adjudicated in a separate suit. What is intended by conferring exclusivejurisdiction on the executing court is to prevent needless and unnecessarylitigation and to achieve speedy disposal of the questions arising fordiscussion in relation to the execution, discharge or satisfaction of thedecree. Should there be any resistance offered or obstruction raised A

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Aimpeding due execution of a decree made by a court of competentjurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI enablethe executing court to adjudicate the inter se claims of the decree-holderand the third parties in the execution proceedings themselves to avoidprolongation of litigation by driving the parties to institute independentsuits. No wonder, the provisions contained in Rules 97 to 106 of OrderBXXI of the CPC under the sub-heading “Resistance to delivery ofpossession to decree-holder or purchaser” have been held by thisCourt to be a complete code in itself in Brahmdeo Chaudhary (supra)as well as in a decision of recent origin in Asgar vs. Mohan Verma[13].In the latter decision, it has been noted that Rules 97 to 103 of OrderCXXI provide the sole remedy both to parties to a suit as well as to astranger to the decree put to execution.

18. In Bhanwar Lal vs. Satyanarain[14], this Court held that whenany person, whether claiming derivative title from the judgment-debtoror sets up his own right, title or interest de hors the judgment debtor, theDexecuting court whilst executing the decree, in addition to the powerunder Rule 35(3), is empowered to conduct an enquiry whether theobstruction by that person is legal or not.

19. This Court in Noorduddin v. Dr. K.L. Anand[15 ]reiteratedthat the executing court was bound to adjudicate the claim of anEobstructionist and to record a finding allowing or rejecting the claim whichwas laid before the executing court, the person being neither a party tothe earlier proceedings nor the decree being passed against him.

20. Yet again, in Babulal v. Raj Kumar & Ors.[16], this Courtafter setting aside the order impugned held that a determination is requiredto be conducted under Order XXI Rule 98 before removal of theFobstruction caused by the objector and a finding is required to be recordedin that regard. It was also held that the executing court was required todetermine the question relating to when the appellants had objected tothe execution of the decree as against those appellants who were notparties to the decree for specific performance.

G21. The decision in Brahmdeo Chaudhary (supra)cited by Mr.Chitambaresh, is also to the same effect.

13 (2020) 16 SCC 23014 (1995) 1 SCC 615 (1995) 1 SCC 242H16 (1996) 3 SCC 154

22. Considering the scheme of Order XXI Rules 97 to 106, thisCourt in Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr.[17] found itdifficult to agree with the High Court that resistance or obstruction madeby a third party to the decree put to execution cannot be gone into underOrder XXI Rule 97. Referring to Rules 97 to 106, this Court further heldthat they were intended to deal with every sort of resistance or obstructionraised by any person and that Rule 97(2) made it incumbent on the courtto adjudicate upon such complaint in accordance with the procedure laiddown. This Court also proceeded to observe:

“It is clear that executing court can decide whether theresistor or obstructer is a person bound by the decree and herefuses to vacate the property. That question also squarelyfalls within the adjudicatory process contemplated in Order21, Rule 97(2) of the Code. The adjudication. mentionedtherein need not necessarily involve a detailed enquiry orcollection of evidence. Court can make the adjudication onadmitted facts or even on the averments made by the resistor.Of course, the Court can direct the parties to adduce evidencefor such determination if the Court deems it necessary”.

23. The long line of precedents notwithstanding, it is indeed truethat in terms of the ordainment of Rule 102 of Order XXI, Rules 98 and100 thereof would not apply to resistance or obstruction in execution ofa decree for the possession of immovable property by a person to whomthe judgment-debtor has transferred the property after the institution ofthe suit in which the decree was passed.

24. The thrust of Mr. Divan’s argument has been that theRespondents are pendente lite transferees, the doctrine of lis pendensapplies, and in view of the clear terms of Rule 102, the objections werenot maintainable; therefore, the Respondents are not entitled to theprotection of having an adjudication of their claims in terms of Rule 98.

25. The argument, though attractive at first blush, pales intoinsignificance in view of the peculiar facts obtaining here. From thefactual narrative, it appears that the Suit instituted by Mrs. Cherian in1987 was initially dismissed on 16[th] November 1989 and upon an appealbeing preferred in 1991, the Suit was restored to the file of the trial courtby the order of the High Court dated 18[th] December 1998. If, indeed, A

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Athere have been transfers post dismissal of the Suit during the time whenthere was no pending lis, it would be most appropriate for the ExecutingCourt to determine the question as to whether any of the transfers madeby Mr. Mathew to the Respondents would attract Rule 102. This wouldindeed involve an exercise of leading of evidence by the parties andmerely because the Suit was ultimately decreed on 21[st] October 2000Band ultimately was upheld by this Court with a minor modification of theamount of compensation, that would not be sufficient justification to throwout the objections raised by the Respondents as being devoid of merit.

26. That apart, the effect of the Purchase Certificate obtained byMr. Mathew in proceedings before the Land Tribunal where Mrs. CherianCwas noticed on the transfers made in favour of the Respondents, wouldalso have to be examined by the Executing Court. Notably, it is thecontention of the Respondents that the said Purchase Certificate wasissued in terms of the KLR Act and not only the same went unchallengedat the instance of Mrs. Cherian, she did not make any disclosure thereofDat any stage of the civil proceedings.

27. The impugned order of the Executing Court bearing in mindthe unchallenged order dated 5[th] April 2018 passed by the High Courthas found the objections to be maintainable, at least warranting an enquiry.On facts, this Court finds no legal infirmity in such order deservingEinterference.

28. Now, it is time to consider the effect of the order of this Courtdated 13[th] October 2014, whereby the special leave petition of Mr.Thomas and Mr. Abraham was disposed of enhancing the compensationby a marginal amount. Simply because this Court did not interfere withFthe first appellate decree dated 11[th] February 2014 is no ground to holdthat such order would bar an enquiry of the nature contemplated byRule 101. This Court would not allow its vision to be colored by treatingthe order dated 13[th] October 2014 as bringing an end to the controversiesbetween the decree-holders and the strangers/third parties, who werenot before it. While it cannot be gainsaid that the dignity, prestige andGmajesty of this Court has to be maintained, yet, merely because theissue between the Appellants on the one hand and Mr. Thomas and Mr.Abraham on the other has attained finality, the same would not affordany justification for this Court, much less sufficient justification, to upholdthe contention of the Appellants which has the effect of subverting, ratherHthan effectuating, the substantive right that Rules 97 to 103 of Order XXI confer on strangers/third parties not bound by the decree for recoveryof possession. The claim regarding right, title and interest in respect oftheir respective shares in the decretal property, as raised by theRespondents, cannot be thrown out at the threshold since it is well withintheir rights to contest the application under Order XXI Rule 97, CPCfiled by the Appellants. Since evidence is required to be led before it, theExecuting Court was well-nigh justified in holding the objections to bemaintainable at this stage not in the sense that the decree cannot beexecuted against them but in the sense that a prima facie case hadbeen set up for an enquiry to be conducted, and posting the matter forevidence to be led by the parties. We are sure that upon determinationof the questions referred to in Rule 101, the Executing Court wouldproceed in the manner mandated by Rule 98.

29. Further, Mr. Chitambaresh is right when he submits that thisCourt should not entertain the aforesaid appeals against the order of theExecuting Court without such order having been subjected to any challengeby the Appellants before the High Court. In the decision cited by Mr.Chitambaresh, viz., ITI Ltd. (supra), it was observed that litigants shouldnot be indulged to hop, skip and jump to reach the Supreme Court forno better reason than the remedy is quick and more efficacious. As amatter of practice, the Supreme Court in its discretion does entertainspecial leave petitions directly from orders of tribunals/courts withoutthe High Court having been approached only in matters where substantialquestions of general importance are involved or where a similar issue ispending for its (the Supreme Court’s) consideration. The decision inColumbia Sportswear Company (supra)is to that effect. However,these are cases which are few and far between. The power to grantleave under Article 136 itself being discretionary, this Court would notallow a party invoking the ‘special leave’ jurisdiction to bypass the remedyavailable at the level of the High Court without the two situations, asaforesaid, being satisfied. Indeed, this is not one such case.

30. For the foregoing reasons, we find no reason to interfere withthe order under challenge. It is upheld and the appeals stand dismissed,without any order for costs.

31. It is made clear that the Executing Court shall proceed to dealwith the application of the Appellants under Rule 97 of Order XXI of theCPC together with the objections raised by the Respondents on theirown merits and without being influenced by any observation made in AB

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Athis order which has been necessitated only for disposal of the presentappeals.

32. Having regard to the fact that the Appellants have beendeprived of the fruits of the Decree dated 21[st] October 2000 for overtwo decades, it would only be just and proper to request the ExecutingBCourt to proceed to decide the contentious issues in accordance withlaw as early as possible without granting unnecessary adjournments toany of the parties. It would, thus, be eminently desirable if the proceedingsare completed within 18 months of receipt of a copy of this judgmentand order.

C33. In view of the aforesaid order, Contempt Petition (C) No.2091/2018 initiated by the Appellants to punish Mr. Thomas and Mr.Abraham for willful disobedience of the order dated 13[th] October, 2014passed by this Court in Special Leave Petition (C) No. 24344/2014, atthis stage, does not survive; hence, the same stands dismissed.

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Nidhi JainAppeals and contempt petition dismissed.(Assisted by : Tamana, LCRA)

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