# Poonam Pandey & Anr v. Kulsum & Ors

- **Citation:** (2026) 4 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-23
- **Case number:** First Appeal No. 306 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/poonam-pandey-anr-v-kulsum-ors-54912
- **Pages:** 17

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296 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The respondents are directed to release the Vehicle No.DL-1L-AL1964 within three days
to the petitioner.
----------
(2026) 4 ILRA 296
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 306 of 2026

Poonam Pandey & Anr. ...Appellants
Versus
Kulsum & Ors. ...Respondents

Issue for consideration
The matter pertains to execution of decree for possession of immovable property and the right of thirdparty/strangers to resist execution under Order XXI Rules, 97,99, 101, 103 CPC.

Headnotes
A. Code of Civil Procedure,1908-Order XXI Rules 97, 99, 101 & 103-Execution of decree for
possession-Stranger's/third party objection maintainable under Order XXI Rules 97/99 CPCIndependent right must be prima facie established-Mere claim without documentary support
insufficient-Objections filed to obstruct execution liable to rejection-Appeal dismissed. (Para 16
to 25)
Held
 The court ruled that A stranger claiming independent right, title or interest in the decretal property is entitled
to resist execution and seek adjudication of such claim in execution proceedings itself. Rejection of objections
solely on the ground that the objector is neither a decree-holder under Rule 97 nor a person already
dispossessed under Rule 99 is legally unsustainable. However, where the objector fails to produce any
material establishing a prima facie independent right or interest in the property and the objections appear
intended merely to frustrate execution of a decree that has attained finality, the executing court is justified in
rejecting such objections. Though the executing court erred on the question of maintainability, the appellants
having failed to substantiate their alleged ownership or inheritance rights, the order rejecting their objections
was liable to be affirmed. Appeal dismissed. (E-6)

Case law Cited
Periyammal (Dead) Thru LRs. And Others Vs. V. Rajamani and Another (2025) SCC OnLine SC 507, N.S.S.
Narayan Sharma Vs. Goldstone Exports (P) Ltd. (2002) 1 SCC 662, Sameer Singh Vs. Abdul Rab (2015) 1 SCC
379: (2015) 1 SCC (Civ) 509, Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694, Silverline
Forum (P) Ltd Vs. Rajiv Trust, (1998) 3 SCC 723, Bhanwar Lal Vs. Satyanarain (1995) 1 SCC 6, Rahul S. Shah
Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418 : (2021) 3 SCC (Civ) 569, Alka Shrirang Chavan and Another Vs.
Hemchandra Rajaram Bhonsle and Others (2026) SCC Online SC 55, Usha Sinha Vs. Dina Ram (2008) 7 SCC
144-referred to.

List of Acts
Code of Civil Procedure,1908, Transfer of Property Act,1882.

List of Keywords
4 All. Poonam Pandey & Anr. Vs. Kulsum & Ors.
297
Execution Proceedings, Decree for Possession, Obstruction to execution, Stranger to Decree, Third-Party
rights, Independent title, Order XXI Rule 97,99,101, Deemed Decree, Collusive Decree, Lis Pendens,
Resistance to Possession, Frivolous objections, Decree-holder, Judgment debtor, Possession of Immovable
property, Objection in Execution.

Case Arising from
CIVIL JURISDICITON: FIRST APPEAL No. -306 OF 2026
Poonam Pandey And Another Vs. Kulsum And 9 Others
From the judgment and order dated 23.04.2026 of the High Court of judicature at Allahabad.

Appearances for Parties
Advs, for Appellant
 Arpit Malviya, Awadesh Kumar Malviya
Adv. for Respondent:-

(Delivered by Hon'ble Sandeep Jain, J.)

1. Supplementary affidavit filed is taken on record.

2. The instant appeal has been filed by the appellants under Order 21 Rule 103 C.P.C.
challenging the impugned order dated 06.01.2026 passed by the Court of Civil Judge (Senior
Division)/Fast Track Court, Ghazipur in Misc. Case No.57 of 2023 (Poonam Pandey and others vs.
Nizamuddin and others), whereby appellants' application under Order 21 Rule 97 and 99 C.P.C.
was rejected on the ground that it was not maintainable.

3. Earlier, the appellants had preferred a writ petition being Matters Under Article 227
No.2578 of 2026 (Smt. Poonam Pandey and another vs. Kalrun and others) before this Court,
which was disposed of by order dated 25.02.2026 on the ground that it was not maintainable since
the impugned order was a decree under Order 21 Rule 103 CPC, which was appealable.

4. Learned counsel for the appellants submitted that the appellants were residing in the
disputed property, who are having ownership in it being the legal heirs of their deceased father
Paramhans Pandey, but they were not made a party to the suit no.348 of 1988 and as such, the
decree passed in that suit was not binding upon them. It was further submitted that the decree
passed in the above suit was a collusive decree, which has been passed in collusion with the
defendants.

5. Learned counsel submitted that since the appellants were having vested independent right in
the property, as such, they cannot be evicted from the property in the execution proceedings
initiated by the decree holder of Original Suit No.348 of 1988.

6. I have heard the learned counsel for the appellants and perused the documents submitted
with the appeal.

7. It is apparent from the documents submitted with the appeal that the plaintiff/decree holder
Nizamuddin filed O.S. No.348 of 1988 against defendants Shivanand Bharti son of Raja Ram
Bharti, Shri Ram, Ramji and Basant Kumar sons of Shivanand Pandey(Bharti) for the relief of
298 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent injunction and for getting possession of the disputed property on the ground that he is
the owner of the disputed property and the defendants are threatening to dispossess him and the
defendants have also made encroachment on his land to which he is entitled to reclaim the
possession. The defendants submitted their written statement in this suit with the averments that
they are the owners on the basis of adverse possession in the disputed property.

8. It was further averred by the defendants that the plaintiff is neither the owner nor in
possession of the disputed property. The defendants admitted that they are in possession of the
disputed property. It is relevant to mention here that the dispute is in relation to Arazi No.2299
situated in Village Karimuddinpur, Pargana Muhammadabad, District Ghazipur.

9. The trial court decreed the suit on 22.12.2011 and it has recorded a specific finding that the
plaintiff is the owner of the disputed property on the basis of sale deed executed in his favour, in
which the defendants have made illegal construction and in view of the evidence on record, the
original suit of the plaintiff was decreed and the defendants were directed to remove their illegal
construction on the disputed property and hand its possession to the plaintiff, failing which, the
plaintiff was held entitled to get the relief through court.

10. It is further apparent that the defendants challenged the impugned decree of the trial court
by filing Civil Appeal No.7 of 2012 (Shivanand Bharti and others vs. Nizamuddin), which was
dismissed on merits on 21.10.2019 by the Additional District Judge, Court No.1, Ghazipur, as such,
the decree passed by the trial court has been affirmed.

11. The appellate court also specifically concluded that the defendants failed to prove their
ownership of the disputed property.

12. It is further apparent that the decree passed in Original Suit No.348 of 1988 was put in
execution by the plaintiff/decree holder by filing Execution Case No. 03 of 2020 for getting
possession of the disputed land, which was illegally in possession of the defendants in which the
appellants moved an application under Order 21 Rule 97 and 99 C.P.C. on the basis that they are
the owners of the disputed property, they are having vested right in it, but they were not impleaded
in the original suit as defendants, as such, the decree passed in the original suit, which was affirmed
by the appellate court, was not binding on them.

13. The appellants' application under Order 21 Rule 97 and 99 C.P.C. has been dismissed by
the execution court by impugned order dated 06.01.2026 on the ground that the appellants are
alleging to be in possession of the disputed property. A finding has been recorded that since the
appellants were never dispossessed from the disputed property, as such, the application moved by
them was not legally maintainable. It was further held that the appellants are not decree holders as
per Order 21 Rule 97 C.P.C. and as per Rule 99, they have not been dispossessed from the disputed
property, hence, they have no right to raise objection in execution proceedings under Order 21 Rule
97 and 99 C.P.C. Aggrieved against which, the instant appeal has been filed by the appellants.
4 All. Poonam Pandey & Anr. Vs. Kulsum & Ors.
299

14. The Apex Court in the case of Periyammal (Dead) Through LRs. And Others vs. V.
Rajamani and Another 2025 SCC OnLine SC 507 while interpreting Order 21 Rule 97 and Rule
99 C.P.C., held as under:-

"43. It is a settled position of law that an application under Order 21 Rule 97 may be
made in respect of obstruction raised by any person in obtaining possession of the decretal
property. The courts adjudicating such application have to do so in accordance with Rule 101 and
hold a full-fledged inquiry to determine all questions including questions relating to right, title or
interest in the property arising between the parties.

44. This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 694,
has held that: (SCC pp. 701-703 & 705, paras 8-10)

"8. A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following
picture:

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession
with the result that the decree for possession could not be executed in the normal manner by
obtaining warrant for possession under Order 21 Rule 35, then the decree-holder has to move an
application under Order 21 Rule 97 for removal of such obstruction and after hearing the decreeholder and the obstructionist the court can pass appropriate orders after adjudicating upon the
controversy between the parties as enjoined by Order 21 Rule 97 sub-rule (2) read with Order 21
Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction
was occasioned without a just cause by the judgment-debtor or by some other person at his
instigation or on his behalf then such obstruction or resistance would be removed as per Order 21
Rule 98 sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in
such an eventuality the order passed would be treated as a decree under Order 21 Rule 101 and no
separate suit would lie against such order meaning thereby the only remedy would be to prefer an
appeal before the appropriate appellate court against such deemed decree.

(2) If for any reason a stranger to the decree is already dispossessed of the suit property
relating to which he claims any right, title or interest before his getting any opportunity to resist or
offer obstruction on spot on account of his absence from the place or for any other valid reason
then his remedy would lie in filing an application under Order 21 Rule 99CPC claiming that his
dispossession was illegal and that possession deserves to be restored to him. If such an application
is allowed after adjudication then as enjoined by Order 21 Rule 98 sub-rule (1) CPC the executing
court can direct the stranger applicant under Order 21 Rule 99 to be put in possession of the
property or if his application is found to be substanceless it has to be dismissed. Such an order
passed by the executing court disposing of the application one way or the other under Order 21
Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order 21 Rule 103 and would
be appealable before appropriate appellate forum. But no separate suit would lie against such
orders as clearly enjoined by Order 21 Rule 101.

5. In short the aforesaid statutory provisions of Order 21 lay down a complete code for
resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder and whose attempts at executing the said decree meet with rough weather. Once resistance
is offered by a purported stranger to the decree and which comes to be noted by the executing court
as well as by the decree-holder the remedy available to the decree-holder against such an
obstructionist in only under Order 21 Rule 97 sub-rule (1) and he cannot bypass such obstruction
and insist on reissuance of warrant for possession under Order 21 Rule 35 with the help of police
300 INDIAN LAW REPORTS ALLAHABAD SERIES
force, as that course would amount to bypassing and circumventing the procedure laid down under
Order 21 Rule 97 in connection with removal of obstruction of purported strangers to the decree.
Once such an obstruction is on the record of the executing court it is difficult to appreciate how
the executing court can tell such obstructionist that he must first lose possession and then only
his remedy is to move an application under Order 21 Rule 99CPC and pray for restoration of
possession. The High Court by the impugned order and judgment has taken the view that the only
remedy available to a stranger to the decree who claims any independent right, title or interest in
the decretal property is to go by Order 21 Rule 99. This view of the High Court on the aforesaid
statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who
claims an independent right, title and interest in the decretal property can offer his resistance
before getting actually dispossessed. He can equally agitate his grievance and claim for
adjudication of his independent right, title and interest in the decretal property even after losing
possession as per Order 21 Rule 99. Order 21 Rule 97 deals with a stage which is prior to the
actual execution of the decree for possession wherein the grievance of the obstructionist can be
adjudicated upon before actual delivery of possession to the decree-holder. While Order 21 Rule
99 on the other hand deals with the subsequent stage in the execution proceedings where a
stranger claiming any right, title and interest in the decretal property might have got actually
dispossessed and claims restoration of possession on adjudication of his independent right, title
and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection
with the right, title and interest of a stranger to the decree are clearly contemplated by the
aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the
picture only at the final stage after losing the possession and not before it if he is vigilant enough to
raise his objection and obstruction before the warrant for possession gets actually executed against
him. With respect the High Court has totally ignored the scheme of Order 21 Rule 97 in this
connection by taking the view that only remedy of such stranger to the decree lies under Order 21
Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of
possession to the decree-holder in the execution proceedings. The view taken by the High Court in
this connection also results in patent breach of principles of natural justice as the obstructionist,
who alleges to have any independent right, title and interest in the decretal property and who is
admittedly not a party to the decree even though making a grievance right in time before the
warrant for execution is actually executed, would be told off the gates and his grievance would not
be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police
force by the decree-holder. That would obviously result in irreparable injury to such obstructionist
whose grievance would go overboard without being considered on merits and such obstructionist
would be condemned totally unheard. Such an order of the executing court, therefore, would fail
also on the ground of non-compliance with basic principles of natural justice. On the contrary the
statutory scheme envisaged by Order 21 Rule 97CPC as discussed earlier clearly guards against
such a pitfall and provides a statutory remedy both to the decree-holder as well as to the
obstructionist to have their respective say in the matter and to get proper adjudication before the
executing court and it is that adjudication which subject to the hierarchy of appeals would
remain binding between the parties to such proceedings and separate suit would be barred with a
view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the
gamut laid down by Order 21 Rules 97 and 103 would remain a complete code and the sole
remedy for the parties concerned to have their grievances once and for all finally resolved in
execution proceedings themselves.
4 All. Poonam Pandey & Anr. Vs. Kulsum & Ors.
301

10. " "5. " A reading of Order 21 Rule 97CPC clearly envisages that "any person" even
including the judgment-debtor irrespective whether he claims derivative title from the judgmentdebtor or sets up his own right, title or interest dehors the judgment-debtor and he resists execution
of a decree, then the court in addition to the power under Rule 35(3) has been empowered to
conduct an enquiry whether the obstruction by that person in obtaining possession of immovable
property was legal or not. The decree-holder gets a right under Rule 97 to make an application
against third parties to have his obstruction removed and an enquiry thereon could be done. Each
occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an
application for removal of the obstruction or resistance by such person." [Ed.: As observed in
Bhanwar Lal v. Satyanarain, (1995) 1 SCC 6, p. 9, para 5.] "

45. In Shreenath [Shreenath v. Rajesh, (1998) 4 SCC 543], the application under Order
21 Rule 97 was filed by the tenants who were not parties to the suit. The question was whether the
tenants could maintain an application under Order 21 Rule 97. This Court while interpreting the
words "any person" held that any person includes even persons not bound by the decree. Paras 10
and 11 read thus: (SCC pp. 548-49, paras 10-11)

"10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical
possession of the disputed property to the decree-holder and, if necessary, by removing any person
bound by the decree who refuses to vacate the said property. The significant words are by
removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property
when in occupancy of a tenant or other person not bound by the decree, the court delivers
possession by fixing a copy of the warrant in some conspicuous place of the said property and
proclaiming to the occupant by beat of drum or other customary mode at some convenient place,
the substance of the decree in regard to the property. In other words, the decree-holder gets the
symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of
immovable property when made in execution of a decree by "any person". This may be either by
the person bound by the decree, claiming title through the judgment-debtor or claiming
independent right of his own including a tenant not party to the suit or even a stranger. A
decree-holder, in such a case, may make an application to the executing court complaining such
resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution
empowers the executing courts when such claim is made to proceed to adjudicate upon the
applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21
Rule 101 (as amended by the 1976 Act) under which all questions relating to right, title or interest
in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined
by the court and not by a separate suit, By the amendment, one has not to go for a fresh suit but all
matter pertaining to that property even if obstruction by a stranger is adjudicated and finality given
even in the executing proceedings. We find the expression "any person" under sub-clause (1) is
used deliberately for widening the scope of power so that the executing court could adjudicate the
claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any
person" it includes all persons resisting the delivery of possession, claiming right in the property
even those not bound by the decree, includes tenants or other persons claiming right on their own
including a stranger.

11. So, under Order 21 Rule 101 all disputes between the decree-holder and any such
person is to be adjudicated by the executing court. A party is not thrown out to relegate itself to the
long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to
the decree-holder and other person claiming title on their own right to get it adjudicated in the very
302 INDIAN LAW REPORTS ALLAHABAD SERIES
execution proceedings. We find that Order 21 Rule 35 deals with cases of delivery of possession of
an immovable property to the decree-holder by delivery of actual physical possession and by
removing any person in possession who is bound by a decree, while under Order 21 Rule 36 only
symbolic possession is given where the tenant is in actual possession. Order 21 Rule 97 as
aforesaid, conceives of cases where delivery of possession to decree-holder or purchaser is resisted
by any person. "Any person", as aforesaid, is wide enough to include even a person not bound by a
decree or claiming right in the property on his own including that of a tenant including a
stranger."

46. In Silverline Forum (P) Ltd. v. Rajiv Trust (1998) 3 SCC 723 , a three-Judge Bench of
this Court has observed that a third party to the decree including the transferee pendente lite can
offer resistance or obstruction and his right has to be adjudicated under Order 21 Rule 97CPC.
The relevant portion of the said judgment is reproduced below: (SCC pp. 727-29, paras 9-10 & 14)

"9. At the outset, we may observe that it is difficult to agree with the High Court
[Silverline Forum (P) Ltd. v. Rajiv Trust, 1997 SCC OnLine Cal 152] that resistance or
obstructions made by a third party to the decree of execution cannot be gone into under Order 21
Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption
"Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to
deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically
provides that when the holder of a decree for possession of immovable property is resisted or
obstructed by "any person" in obtaining possession of the property such decree-holder has to make
an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the
court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.

10. It is true that Rule 99 of Order 21 is not available to any person until he is
dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions
"arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall
be determined by the executing court, if such questions are "relevant to the adjudication of the
application". A third party to the decree who offers resistance would thus fall within the ambit of
Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made
by him to the execution of the decree. No doubt if the resistance was made by a transferee
pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the
limited question whether he is such a transferee and on a finding in the affirmative regarding
that point the executing court has to hold that he has no right to resist in view of the clear
language contained in Rule 102. Exclusion of such a transferee from raising further contentions
is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act.
***

14. It is clear that the executing court can decide whether the resister or obstructor is a
person bound by the decree and he refused to vacate the property. That question also squarely
falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The
adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of
evidence. Court can make the adjudication on admitted facts or even on the averments made by
the resister. Of course the court can direct the parties to adduce evidence for such determination
if the court deems it necessary."

47. This Court in N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd. (2002) 1 SCC
662 , has held as under: (SCC pp. 668-69, paras 15 & 19)
4 All. Poonam Pandey & Anr. Vs. Kulsum & Ors.
303

"15. Provision is made in the Civil Procedure Code for delivery of possession of
immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35
provisions are made empowering the executing court to deliver possession of the property to the
decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the
property. In Rule 36 provision is made for delivery of formal or symbolical possession of the
property in occupancy of a tenant or other person entitled to occupy the same and not bound by the
decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling
the executing court to deal with a situation when a decree-holder entitled to possession of the
property encounters obstruction from "any person". From the provisions in these Rules which have
been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing
court to deal with "all issues" relating to such matters. It is a general impression prevailing
amongst the litigant public that difficulties of a litigant are by no means over on his getting a
decree for immovable property in his favour. Indeed, his difficulties in real and practical sense,
arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension
in the minds of litigant public that it takes years and years for the decree-holder to enjoy fruits of
the decree, the legislature made drastic amendments in provisions in the aforementioned Rules,
particularly, the provision in Rule 101 in which it is categorically declared that 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 [Ed.: The matter between two asterisks has been emphasised in
original.] shall be determined by the Court dealing with the application and not by a separate suit
[Ed.: The matter between two asterisks has been emphasised in original.] 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. On a fair reading of the Rule it is
manifest that the legislature has enacted the provision with a view to remove, as far as possible,
technical objections to an application filed by the aggrieved party whether he is the decree-holder
or any other person in possession of the immovable property under execution and has vested the
power in the executing court to deal with all questions arising in the matter irrespective of whether
the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory
mandate and the object and purpose of the provisions should not be lost sight of by the courts
seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant
issues arising in the case.
***

19. From the principles laid down in the decisions noted above, the position is manifest
that when any person claiming title to the property in his possession obstructs the attempt by the
decree-holder to dispossess him from the said property the executing court is competent to consider
all questions raised by the persons offering obstruction against execution of the decree and pass
appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree."

48. In Sameer Singh v. Abdul Rab [(2015) 1 SCC 379 : (2015) 1 SCC (Civ) 509] , this
Court, after considering its previous judgment in Brahmdeo Chaudhary [Brahmdeo Chaudhary v.
Rishikesh Prasad Jaiswal, (1997) 3 SCC 694] has held thus: (SCC p. 389, para 26)

"26. The aforesaid authorities clearly spell out that the court has the authority to
adjudicate all the questions pertaining to right, title or interest in the property arising between the
parties. It also includes the claim of a stranger who apprehends dispossession or has already
been dispossessed from the immovable property. The self-contained code, as has been emphasised
304 INDIAN LAW REPORTS ALLAHABAD SERIES
by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid
multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was
required to be agitated by filing a suit but after the amendment the entire enquiry has to be
conducted by the executing court. Order 21 Rule 101 provides for the determination of necessary
issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or
Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed
decree. If a court declines to adjudicate on the ground that it does not have jurisdiction, the said
order cannot earn the status of a decree. If an executing court only expresses its inability to
adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different."

49. A conjoint reading of the relevant provisions and the principles laid down by this
Court makes it clear that in execution of decree for possession of immovable property, the
executing court delivers actual physical possession of the decretal land to the decree-holder. Rule
35 confers jurisdiction on the executing court to remove any person, who is bound by the decree
and who refuses to vacate the property. The words "any person who is bound by the decree",
clearly mandate that removal can only be of a person who is bound by the decree. Rules 97 to 101
deal with situation when execution is obstructed or resisted by "any person" claiming right, title or
interest in the property. The words "any person" include even a stranger to a decree resisting the
decree of possession as not being bound by a decree or by claiming independent right, title or
interest to the property.

50. Thus, Rule 97 not only provides to a decree-holder in obtaining possession of an
immovable property but also to a stranger who obstructs or resists delivery of possession of the
property by claiming derivative title from the judgment debtor or independent right, title or interest
in the decretal property. Whereas, Rule 99 gives right to a third party claiming right, title or
interest in the property to seek restoration of the decretal property. Suffice it to say that the remedy
under Rule 99 is available when a person claiming right to the decretal property is already
dispossessed.

51. Rule 101 enjoins upon the executing court dealing with application under Rule 97 or
99 to determine all questions including questions relating to right, title or interest in the property,
arising between the parties and relevant to the adjudication of the application. As held by this
Court in Silverline Forum (P) Ltd. v. Rajiv Trust, (1998) 3 SCC 723 the question that the executing
court is obliged to determine under Rule 101 must possess two adjuncts viz. (i) that such question
should have legally arisen between the parties, and (ii) such question must be relevant for
consideration and determination between the parties. Upon adjudication of such questions, the
executing court is under an obligation to pass appropriate order as contemplated under Rule 98 or
100, as the case may be. When eventually such order is passed, it would be treated as decree and
no separate suit would lie against such order. It therefore follows that the only remedy is to prefer
an appeal before the appropriate court against such deemed decree.

(iii) Section 47CPC vis-"-vis Order 21 Rule 97CPC

52. Under Section 47CPC, questions arising between the parties to the suit relating to the
execution, discharge or satisfaction of the decree are covered whereas under Order 21 Rule 97
read with Rule 101 CPC, questions including those relating to right, title or interest in the property
arising between the parties to the proceeding on an application under Rule 97 or Rule 99 of Order
21 are to be determined by the executing court. The language of Rule 97 provides that where the
holder of a decree for possession of immovable property is resisted or obstructed by any person in
obtaining possession of the property, he may make an application to the court complaining of such
4 All. Poonam Pandey & Anr. Vs. Kulsum & Ors.
305
resistance or obstruction. The language used is "obstructed by any person". It may be by the
judgment-debtor or by a third person. Sub-rule (2) of the said Rule 97 further provides that where
an application is made under sub-rule (1), the court shall proceed to adjudicate upon the
application in accordance with the provisions thereunder contained. Sub-rule (2) of Rule 98 of
Order 21 further provides that where upon such determination, the court is satisfied that the
resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some
other person at his instigation or on his behalf, he shall direct that the applicant be put into
possession of the property.

53. Rule 101 of Order 21 provides as under:

"101. Question to be determined."

All questions (including questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their
representatives, and relevant to the adjudication of 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."

54. Thus the cumulative effect of all these rights read together is that if an application
under Order 21 Rule 97 is made, then its determination will be under Rule 101 and then Rule 103
further provides that where any application has been adjudicated upon under Rules 98 or 100, the
order made thereon shall have the same force and will be subject to the same conditions as to an
appeal or otherwise as if it were a decree. Under Section 47CPC all questions relating to the
execution, discharge or satisfaction of the decree, have to be determined by the executing court
whereas under Rule 101 all questions including question relating to right, title or interest in the
property arising between the parties to the proceedings have to be determined by the executing
court. Section 47 is a general provision whereas Order 21 Rules 97 and 101 deal with a specific
situation. Moreover, Section 47 deals with executions of all kinds of decrees whereas Order 21
Rules 97 and 101 deal only with execution of decree for possession. Apart from that, earlier i.e.
prior to the amendment, every order falling under Section 47 was appealable (as the terms
"decree" included the order under Section 47CPC) whereas now only certain orders as provided
for under Order 21 have been made appealable.

56. This Court in Bhanwar Lal v. Satyanarain (1995) 1 SCC 6 , has held that even an
application filed under Section 47 would be treated as an application under Order 21 Rule 97 and
an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the
property is not a condition for declining to entertain the application. The relevant portion of the
judgment is reproduced below: (SCC p. 9, paras 5-7)

"5. The procedure has been provided in Rules 98 to 103. We are not, at present,
concerned with the question relating to the procedure to be followed and question to be determined
under Order 21 Rules 98 to 102. A reading of Order 21 Rule 97CPC clearly envisages that "any
person" even including the judgment-debtor irrespective whether he claims derivative title from the
judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists
execution of a decree, then the court in addition to the power under Rule 35(3) has been
empowered to conduct an enquiry whether the obstruction by that person in obtaining possession
of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an
application against third parties to have his obstruction removed and an enquiry thereon could be
306 INDIAN LAW REPORTS ALLAHABAD SERIES
done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to
make an application for removal of the obstruction or resistance by such person.

6. When the appellant had made the application on 25-5-1979 against Satyanarain, in
law it must be only the application made under Order 21 Rule 97(1)CPC. The executing court,
obviously, was in error in directing to make a fresh application. It is the duty of the executing court
to consider the averments in the petition and consider the scope of the applicability of the relevant
rule. On technical ground the executing court dismissed the second application on limitation and
also the third application, on the ground of res judicata which the High Court has in the revisions
now upheld. The procedure is the handmaid of substantive justice but in this case it has ruled the
roost.

7. In the above view we have taken, the High Court has committed grievous error of
jurisdiction and also patent illegality in treating the application filed by the appellant as barred by
limitation and the third one on res judicata. Once the application, dated 25-5-1979 was made, the
Court should have treated it to be one filed under Order 21 Rule 97(1)CPC. The question of res
judicata for filing the second and third applications does not arise. Under these circumstances the
appellate court, though for different reasons was justified in directing an enquiry to be conducted
for removal of the obstruction or resistance caused by Satyanarain under Order 21 Rules 35(3) and
97(2) and Order 21 Rules 101 and 102CPC."
****

65. What flows from the position of law, as aforestated, is that the issues that ought to
have been raised by the parties during the adjudication of the original suit cannot be determined by
the executing court as such adjudication may undermine the decree itself. This Court in Rahul S.
Shah v. Jinendra Kumar Gandhi [(2021) 6 SCC 418 : (2021) 3 SCC (Civ) 569] has held that the
benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation of fruits of
the decree.