# Salik Ram Singh @ Salik Ram v. A.D.J., Court No. 3, Gonda & Ors

- **Citation:** (2022) 2 ILRA 274
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Case number:** Matter Under Article 227 No. 27153 of 2021
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salik-ram-singh-salik-ram-v-a-d-j-court-no-3-gonda-ors-48115
- **Pages:** 31

## Headnote

A. Code of Civil Procedure, 1908 - Order
XXI Rule 97,98,99 & 101 - A conjoint
reading of Order XXI Rules 97,98,99,101 project
the following picture:

I. If a decree holder is resisted or obstructed in
execution of decree for possession upon
issuance of warrant for possession under Order
XXI Rule 35 CPC then the decree holder has to
move an application under Order XXI Rule 97
CPC for removal of obstruction and after hearing
the decree holder and obstructionist then the
court
can
pass
appropriate
orders
after
adjudicating upon the controversy as enjoined
by Order XXI Rule 97(2) r/w Order XXI Rule 98
C.P.C.

II. If after such adjudication it is found that
resistance or obstruction was without a just
cause then such obstruction or resistance would
be removed under Order XXI Rule 98(2) C.P.C.
and the decree holder would be put in
possession.

III. The order so passed would be treated as a
decree under Order XXI Rule 101 C.P.C. and no
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
275
separate suit will lie and only remedy will be to
file appeal against such deemed decree.

IV. If a stranger to the decree is already
dispossessed before getting any opportunity to
resist or offer obstruction then his remedy
would lie in filing an application under Order XXI
Rule 99 C.P.C.

V.
If
such
application
is
allowed
after
adjudication then executing court can direct the
stranger under Order XXI Rule 99 C.P.C. to be
put in possession of the property. However, if his
application is found to be substance less it has
to be dismissed.

VI. Oder passed under XXI Rule 98(1) CPC
would be deemed to be a decree as laid down in
Order XXI Rule 103 C.P.C. and would be
appealable but no separate suit would lie.(Para
8).

VII. Thus, it is settled law whenever an
obstruction or resistance is made by any person
in the execution of decree the executing court is
under obligation to adjudicate the right, title or
interest of the obstructionist in the manner
prescribed under Rules 98-103 of Order XXI CPC
which is a complete code in itself.

VIII. Not only the decree holder or a person
disposed in execution of decree has right to
make an application to the executing court but a
person who is apprehending dispossession can
also make an application to the court and when
such an application is brought before the court
the said court shall be obliged to make an
enquiry and pass an order in respect of right,
title or interest of the party.

Petition allowed. (E-12)
List of Cases cited:-

## Text

_Characters 0–39,648 of 109,780. This is a partial read: ask again with offset=39648 for what follows._

274 INDIAN LAW REPORTS ALLAHABAD SERIES
defendants. It should have declined to take
them on record as evidence rather than
leaving the issue of admissibility of those
copies open and hanging, by marking them
as exhibits "subject to objection of proof
and admissibility", the appellant was lulled
into complacency. Had those xerox copies
been rejected by trial court, the appellant
would have made all efforts to file them
before the learned trial court itself. It
observed that the Division Bench of the
High Court erred in holding that production
of additional evidence was not permissible
under Order 41 Rule 27 as such additional
documents were liable to be taken on
record in the interest of justice.

9. Having considered the judgment
rendered by Supreme Court in the matter
and also the fact as pleaded in this petition
including the observations made by the trial
court with regard to the failure of
defendants to produce any evidence to
show that his mother's name was Smt.
Shanti Devi and not Smt. Ram Kali at the
stage of trial, but also considering the fact
that khatauni in question could not be
available to the petitioner because of it
being deposited in a wrong Record Room
and it being essential for deciding main
controversy, this Court is of the opinion
that the Appellate Court has taken a hyper
technical view of the matter by rejecting
the application of the petitioner.

10. The order dated 09.08.2021
passed on Paper No.14-Ga by the Appellate
Court is set aside but the Appellate Court
while deciding the application afresh shall
also give opportunity to the respondent to
file additional evidence/ any documentary
proof in his possession to show that the
name of the appellant's/ petitioner's mother
was indeed Smt. Ram Kali and not Smt.
Shanti Devi.

11. This petition is accordingly
disposed of.
----------
(2022)02ILR A274
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2022

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Matter Under Article 227 No. 27153 of 2021

Salik Ram Singh @ Salik Ram ...Petitioner
Versus
A.D.J., Court No. 3, Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
A.Z. Siddiqui

Counsel for the Respondents:
Ankit Pande

A. Code of Civil Procedure, 1908 - Order
XXI Rule 97,98,99 & 101 - A conjoint
reading of Order XXI Rules 97,98,99,101 project
the following picture:

I. If a decree holder is resisted or obstructed in
execution of decree for possession upon
issuance of warrant for possession under Order
XXI Rule 35 CPC then the decree holder has to
move an application under Order XXI Rule 97
CPC for removal of obstruction and after hearing
the decree holder and obstructionist then the
court
can
pass
appropriate
orders
after
adjudicating upon the controversy as enjoined
by Order XXI Rule 97(2) r/w Order XXI Rule 98
C.P.C.

II. If after such adjudication it is found that
resistance or obstruction was without a just
cause then such obstruction or resistance would
be removed under Order XXI Rule 98(2) C.P.C.
and the decree holder would be put in
possession.

III. The order so passed would be treated as a
decree under Order XXI Rule 101 C.P.C. and no
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
275
separate suit will lie and only remedy will be to
file appeal against such deemed decree.

IV. If a stranger to the decree is already
dispossessed before getting any opportunity to
resist or offer obstruction then his remedy
would lie in filing an application under Order XXI
Rule 99 C.P.C.

V.
If
such
application
is
allowed
after
adjudication then executing court can direct the
stranger under Order XXI Rule 99 C.P.C. to be
put in possession of the property. However, if his
application is found to be substance less it has
to be dismissed.

VI. Oder passed under XXI Rule 98(1) CPC
would be deemed to be a decree as laid down in
Order XXI Rule 103 C.P.C. and would be
appealable but no separate suit would lie.(Para
8).

VII. Thus, it is settled law whenever an
obstruction or resistance is made by any person
in the execution of decree the executing court is
under obligation to adjudicate the right, title or
interest of the obstructionist in the manner
prescribed under Rules 98-103 of Order XXI CPC
which is a complete code in itself.

VIII. Not only the decree holder or a person
disposed in execution of decree has right to
make an application to the executing court but a
person who is apprehending dispossession can
also make an application to the court and when
such an application is brought before the court
the said court shall be obliged to make an
enquiry and pass an order in respect of right,
title or interest of the party.

Petition allowed. (E-12)
List of Cases cited:-

1. Brahmadev Chaudhary Vs Rishi Kesh Prasad
Jaiswal (1997)3 SCC 694

2. Bhanwar Lal Vs Satya Narain (1995)1 SCC 6

3. Silverline Forum(P) Ltd. Vs Rajiv Trust
(1998)3 SCC 723

4. Sameer Singh Vs Abdul Rab (2015)1 SCC 379
5. Noorduddin Vs K.L. Anand (1995)1 SCC 242

6. Ghasi Ram Vs Chet Ram Saini (1998)6 SCC
200

7. S. Rajeshwari Vs S.N. Kulasekaran (2006)4
SCC 412

8. Babulal Vs Raj Kumar (1996)3 SCC 154

9. Rahul S. Shah Vs Jinendra Kumar Gandhi
(2021)6 SCC 418

10. Asan Devi Vs Phulwasi Devi (2003)12 SCC
219

11. Harbilas Vs Mahendra Nath (2011)15 SCC
377
 Followed

12. Usha Jain Vs Manmohan Bajaj AIR 1980 MP
146(FB) no longer good law.

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
parties.

2. The instant petition has been
preferred for the following main reliefs:-

"I. Issue order or direction setting
aside the impugned Order dated 29.10.2021
passed by Executing Court in Execution
Case
No.1/2017
pending
before
the
Opposite
Party
No.1,
contained
in
Annexure No.1 to this petition;

II. Issue order or direction setting
aside the impugned Order dated 11.11.2021
passed
by
Opposite
Party
No.1
in
Execution Case No.1/2017 and every
subsequent proceedings thereof contained
in Annexure No.2 to this petition."

3. In brief, the petitioner, who was not
a party to the SCC Suit No. 5 of 2014,
claiming himself to be an owner in
possession of the property in issue in the
276 INDIAN LAW REPORTS ALLAHABAD SERIES
suit, is resisting the judgment and decree
dated 29.03.2017, which has become final.

4. Facts relevant for the present case,
as stated, are to the effect that Vishwanath
Kumar Mehrotra s/o Braj Mohan Lal, was
the sole owner of the property in question
i.e. Gata No. 1789M situated at Mohalla
Chhedipurwa, Station Road, Gonda. The
said Vishwanath Kumar Mehrotra, who
was handicapped and since he was not
being looked after by his wife and children,
bequeathed his entire property by way of a
registered Will Deed dated 01.06.1970 in
favour of the petitioner and based upon the
same, the petitioner, after death of
Vishwanath
Kumar
Mehrotra,
being
successor, became the owner of the
property under the Will Deed dated
01.06.1970 including the property in issue.

5. It is also stated that Shyama @
Shyamo Devi, widow of Vishwanath
Kumar Mehrotra, filed a SCC Suit No. 5 of
2014 for eviction of the shop (property in
issue) in collusion with one Masroor
Ahmed, who as per the petitioner was
never the tenant or lessee of Late
Vishwanath Kumar Mehrotra. On coming
to know about the pendency of suit, the
petitioner on the basis of a Will Deed dated
01.06.1970 preferred an application dated
14.09.2016 for impleadment under Order 1
Rule 10 of Code of Civil Procedure (in
short "CPC") praying therein that the
petitioner be impleaded in the array of the
parties in the suit. The said application was
opposed by Shyamo Devi vide her
objection dated 01.10.2016. The petitioner's
application No. C2/64 for impleadment was
rejected on 26.11.2016 for want of
prosecution. Thereafter, the SCC Suit No.5
of 2014 was decreed in favour of Shyamo
Devi vide order dated 29.03.2017.

6. On coming to know about the
aforesaid, the petitioner assailed the orders
dated 26.11.2016 as also 29.03.2017 by
filing a Revision along with an application
for condonation of delay registered as
Miscellaneous Case No. 617 of 2017,
which was rejected on 15.02.2019 by the
Revisional Court.

7. Thereafter, the petitioner assailed
the orders dated 15.02.2019, 26.11.2016
and 29.03.2017 before this Court by filing a
petition i.e. Misc. Single No. 14839 of
2019 (Salik Ram Singh v. 3rd Additional
District Judge Gonda and Ors.), which was
dismissed on 24.05.2019 by this Court with
an observation that the petitioner may file a
suit for declaration of his claim in regard to
property in dispute and thereafter, taking
note of the observation made by this Court
in the judgment dated 24.05.2019 passed in
Petition No. 14839 of 2019, the petitioner
preferred a suit for declaration i.e. Regular
Suit No. 481 of 2019, which is pending
before a Court of competent jurisdiction. In
addition to Regular Suit for declaration of
rights over the property in question, the
petitioner preferred two application dated
09.08.2021 Nos. 137-C1/1 (for stay of the
execution proceedings) and 140-C2/1 under
Order 21 Rule 97/99/101 of CPC before the
Execution Court in Execution Case No. 1
of
2017,
which
were
rejected
on
29.10.2021.
Thereafter,
the
petitioner
preferred
a
Review
Application
for
reviewing the order dated 29.10.2021,
which was also rejected by the Execution
Court on 11.11.2021. The orders dated
29.10.2021 and 11.11.2021 are impugned
in this petition.

8. The relevant portion of the order
dated
29.10.2021,
impugned
in
this
petition, on reproduction reads as under:-
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
277

"i=koyh ds ifj'khyu ls fofnr gS fd iwoZ esa
v'kksd dqekj }kjk Hkh iz'uxr lEifRr ij viuk
ekfydkuk vf/kdkj ds vk/kkj ij i{kdkj cuus gsrq
izkFkZuk i= izLrqr fd;k x;k Fkk ftl ij fnukad
05-04-2021 dks foLr`r vkns'k ikfjr djrs gq, ;g
Li"V fd;k x;k fd y?kqokn btjk; esa ekfydkuk
vf/kdkjksa dh mn~?kks"k.kk ugh dh tk ldrh gSA
btjk; dh dk;Zokgh esa dksbZ U;k;ky; fMdzh ls
vfrfjDr dksbZ vuqrks"k iznku ugh dj ldrkA
y?kqokn la[;k 05@2014 esa vkifRrdrkZ }kjk
i{kdkj cuus ds fy, izkFkZuki= izLrqr fd;k x;k
Fkk tks fd fujLr fd;k x;k rFkk ekuuh; mPp
U;k;ky; }kjk Hkh izkFkhZ@r`rh; i{k i`Fkd okn
lafLFkr djus gsrq funsZf'kr fd;k x;k ftlls ;g
Li"V gS fd y?kqokn esa y?kqokn ls lEcfU/kr btjk;
es LokfeRo dk fu/kkZj.k fd;s tkus dk dksbZ
{ks=kf/kdkj y?kqokn U;k;ky; dks izkIr ugha gSA
ekuuh;
mPp
U;k;ky;
}kjk
fe0fl0ua0
14839@2019 esa ikfjr vkns'k fnukafdr 24-05-2019
esa ;g vkns'k ikfjr fd;k x;k gS fd& "The
Execution
Case
no.1
of
2017
for
compliance
of
the
Decree
dated
29.3.2017 is pending disposal before the
Executing Court. In case the petitioner
claims any right over the property in
question, bequeathed to him allegedly
through registered Will Deed, he may file
a suit for declaration for the same before
the appropriate Court as the SCC Court
having decided the suit in favour of the
Landlady, cannot look into the question
of title to the property. The SCC Suit is by
way of summary proceedings and the
question of title can only be decided by
the competent Court in regular civil suit
filed for the same." ekuuh; mPp U;k;ky;
}kjk vius vkns'k esa bl btjk; okn dk mYys[k
djrs gq, i`Fkd okn nkf[ky djrs gq, funsZf'kr
fd;k x;k gS ftlls ;g Li"V gS fd y?kqokn
btjk; es Hkh izkFkhZ ds LokfeRo ds fu/kkZj.k ls
lEcfU/kr dksbZ fcUnq fopkj esa ugh fy;k tk ldrkA
ekuuh; mPp U;k;ky; }kjk mDr vkns'k fnukad
24-05-2019 dks ikfjr fd;k x;k gSA izkFkhZ }kjk ;g
izkFkZuk i= fnukad 09-08-2021 dks izLrqr fd;k
x;kA ;g Hkh mYys[kuh; gS fd izkFkZuk i= 119
x@2 dk;eh okfjl ds fo:) fu.khZr_.kh }kjk
nkf[ky dh x;h vkifRr esa Hkh fu.khZr _.kh r`rh;
i{k dk Lokeh gksus dk fcUnq mBk;k Fkk ftl ij
foLr`r vkns'k ikfjr fd;k tk pqdk gSA ;g Hkh
mYys[kuh; gS fd izkFkhZ us vkns'k 21 fu;e 97
lh0ih0lh0 ds rgr viuh vkifRr nkf[ky dh gS
vkSj mlh ds rgr og viuk lk{; izLrqr djuk
pkgrk gSA vkns'k 21 fu;e 97 lh0ih0lh0 ;g
izko/kkfur djrk gS fd tgka LFkkoj lEifRr ds
dCts dh fMdzh ds /kkjd dk ;k fMdzh ds fu"iknu
esa fodz; dh x;h ,slh fdlh lEifRr ds dzsrk dk
,slh lEifRr ij dCtk vfHkizkIr djus esa fdlh
O;fDr }kjk izfrjks/k fd;k tkrk gS ;k mls ck/kk
Mkyh tkrh gS] ogka og ,sls izfrjks/k ;k ck/kk dk
ifjokn djrs gq, vkosnu U;k;ky; ls dj ldsxk
rFkk vkns'k 21 fu;e 99 lh0ih0lh0 ;g izko/kkfur
djrk gS fd ^^tgka fu.khZr_.kh ls fHkUu dksbZ O;fDr
LFkkoj lEifRr ij dCts dh fMdzh ds /kkjd }kjk
tgka ,slh lEifRr dk fMdzh ds fu"iknu esa fodz;
fd;k x;k gS ogka] mlds dszrk }kjk ,slh lEifRr
ij ls csdCtk dj fn;k x;k gks ogka og ,sls
csdCtk fd;s tkus dk ifjokn djrs gq, U;k;ky; ls
vkosnu dj ldsxkA^^ bl okn esa vHkh rd n[ky
ds lEcU/k esa dksbZ dk;Zokgh ugh dh x;h gS vkSj u
gh bl vk'k; dh dksbZ vk[;k i=koyh ij miyC/k
gS fd okn xzLr lEifRr ij HkkSfrd dCtk fdldk
gS vkSj u gh vkifRrdrkZ dks mlds fdlh dCts ls
csn[ky fd;k x;k gSA

ekuuhp mPp U;k;ky; }kjk ,l0lh0lh0
fjohtu fMQsfDVo ua0 64@2017 esa fnukad 24-08-2017
dks fuxjkuh fujLr djrs gq, fuxjkuhdrkZ fu.khZr_.kh
e'k:Q dks 02 ekg dk le; iz'uxr nqdku [kkyh
djus ds fy, iznku fd;k x;k Fkk ftldh iw.kZ
tkudkjh gksus ds ckn Hkh fu.khZr_.kh }kjk vHkh bl
vkns'k dk vuqikyu ugh fd;k x;k gSA vr% mijksDr
ifjfLFkfr;ksa esa izkFkhZ dk izkFkZuk i= vkns'k 21 fu;e
97 lh0ih0lh0 bl Lrj ij Lohdkj fd;s tkus ;ksX;
ugh gS rFkk btjk; dh dk;Zokgh LFkfxr fd;s tkus
dk dksbZ vk/kkj ugh gSA rnkuqlkj izkFkZuk i=
140x@2 o 137x@2 fujLr fd;s tkus ;ksX; gSA

vkns'k

izkFkZuk i=&140x@2 o izkFkZuk i= 137x@2
fujLr fd;s tkrs gSA vkifRr rnkuqlkj fuLrkfjrA

i=koyh okLrs lquokbZ@fuLrkj.k fnukad 03-112021 dks is'k gksA"

9. Learned Execution Court rejected
the application of the petitioner for review
of order dated 29.10.2021 vide order dated
11.11.2021 on the main ground to the effect
that the order dated 29.10.2021 was passed
after considering all the aspects of the case
278 INDIAN LAW REPORTS ALLAHABAD SERIES
and there is no error in the order dated
29.10.2021.

10. Assailing the impugned orders,
learned counsel for the petitioner submitted
that the petitioner was not the party in the
SCC Suit No. 5 of 2014, decreed on
29.03.2017, in relation to which Execution
Case No. 1 of 2017 is pending, wherein, the
application under Order 21 Rule 97/99/101
of CPC was preferred by the petitioner,
which was rejected vide impugned order
dated 29.10.2021, nor is a judgment debtor
nor he has entered into the shoes of
judgment debtor, nor he has been put in
possession of property in suit by the
judgment debtor and in fact the petitioner
on the basis of a Will Deed dated
01.06.1970 is claiming his independent
rights over the property in suit, as such,
based upon the Will Deed, the petitioner
preferred two applications, one for staying
the execution proceedings and another
under Order 21 Rule 97/99/101 CPC for
rejecting the execution proceedings.

11. It is also contended that a third
person claiming to be in possession of the
property forming subject matter of decree
in his own right can resist delivery of
possession by filing an objection under
Order 21 Rule 97 before the Execution
Court itself and the Execution Court is
under obligation to consider and decide the
same on merits before proceeding further in
the execution case. However, in the present
case,
the
Execution Court
erred
in
interpreting the relevant rules/provisions
contained under Order 21 CPC and rejected
the application/objection of the petitioner
preferred by him under Order 21 Rule 97
being not maintainable. The prayer is to
interfere in the impugned order(s) and
remand the matter for adjudication on
merits as per law.

12. In support of his submissions,
learned counsel for the petitioner relied
upon the judgments passed in the cases of
Brahmdeo
Chaudhary
v.
Rishikesh
Prasad Jaiswal, (1997) 3 SCC 694 &
Sameer Singh v. Abdul Rab, (2015) 1 SCC
379 : (2015) 1 SCC (Civ) 509 : 2014 SCC
OnLine SC 820.

13. Opposing the petition for the
reliefs sought, Sri R.S. Pandey, learned
Senior Advocate assisted by Sri Ankit
Pande, learned counsel for the opposite
party Nos. 2 to 4 submitted that the
impugned order(s) dated 29.10.2021 and
11.11.2021 are not liable to be interfered
with by this Court. Elaborating his
arguments,
learned
Senior
Advocate
submitted that the Execution Court rightly
held that the application/objection of the
petitioner
is
not
maintainable.
The
submission is that the application moved by
the petitioner under Order 21 Rule 97
before the Execution Court was not
maintainable as no complaint was raised by
the decree holder i.e. opposite party No. 2
with regard to resistance/obstruction by an
stranger. The proceedings under Rule 97
can be initiated on the application of the
decree holder which is evident from the
language of the Order 21 Rule 97 as also
from the Form No. 40 provided under
Appendix 'E' of CPC, which is the
proforma of summons to be issued to the
person who resists/obstructs the officer
charged with execution of warrant of
possession.

14. It is further submitted that as per
Order 21 Rule 97 of CPC on an application
preferred by the decree holder informing
the
Execution
Court
about
the
resistance/obstruction
in
execution
of
decree of possession, the concerned court
would issue summons and thereafter, the
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
279
person
who
resisted/obstructed
the
execution of decree may appear and file an
objection claiming his right, title or interest
in the said property and if objection is filed
by the person concerned then in that event
the Execution Court is bound to adjudicate
the lis under Order 21 Rule 97 (2) read with
Order 21 Rule 101 and not otherwise.

15. It is further submitted that the
Execution
Court
vide
order
dated
29.10.2021 while rejecting the application
moved by the petitioner under Order 21
Rule 97 has observed that no proceeding
has been undertaken with regard to
possession as yet and there is no such
report with regard to the actual physical
possession of person(s) on spot and it has
also
been
observed
that
the
applicant/petitioner
has
not
been
dispossessed
as
yet
and
therefore,
provisions of Order 21 Rule 99 are not
attracted
and
after
making
these
observations, the Execution Court has held
that the application under Order 21 Rule 97
preferred by the applicant/petitioner is not
maintainable and accordingly, rejected the
same. In view of the aforesaid facts and
findings recorded by the Execution Court,
no cause of action has accrued in favour of
the petitioner for filing the present petition.

16. It is further submitted that the
cause of action for stranger accrues as soon
as the decree holder complains about
obstruction/resistance by some stranger
either by moving an application under
Order 21 Rule 97 or Rule 35 of CPC and
before such stage, the petitioner preferred
the application in issue and being so the
same was not maintainable. Thus, rightly
rejected.

17. In support of submissions made
and issues involved in the present case,
learned Senior Advocate for the side
opposite has relied upon the judgments
placed before this Court by the counsel for
the petitioner, indicated above, as also
some other judgments, which are as under.

1. Brahmdeo Chaudhary v. Rishikesh
Prasad Jaiswal, (1997) 3 SCC 694,
relevant paras of which are reproduced
hereunder:-

"6. On the undisputed facts on record
it has, therefore, to be held that because of
the resistance or obstruction offered by the
appellant, amongst others, on 28-4-1991
the application moved by the respondent
decree-holder on 6-5-1991 was necessarily
to be one falling within the scope and ambit
of Order 21, Rule 97. It is pertinent to note
that the resistance and/or obstruction to
possession of immovable property as
contemplated by Order 21, Rule 97 CPC
could have been offered by any person. The
words "any person" as contemplated by
Order 21, Rule 97, sub-rule (1) are
comprehensive enough to include apart
from judgment-debtor or anyone claiming
through
him
even
persons
claiming
independently and who would, therefore,
be total strangers to the decree. It is not in
dispute between the parties that no decree
for possession has been obtained by
Respondent 1 against the appellant. He is,
therefore, prima facie a stranger to the
decree. When he offered obstruction or
resistance to the execution of the decree he
would squarely fall within the sweep of the
words "any person" as found in Order 21,
Rule 97, sub-rule (1). Consequently it must
be held that Respondent 1's application
dated 6-5-1991 though seeking only
reissuance of warrant for delivery of
possession with aid of armed force in
substance sought to bypass the previous
resistance and obstruction offered by the
280 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant on the spot. Thus it was squarely
covered by the sweep of Order 21, Rule 97,
sub-rule (1) CPC. Once that happened the
procedure laid down by sub-rule (2) thereof
had to be followed by the executing court.
The Court had to proceed to adjudicate
upon the application in accordance with the
subsequent provisions contained in the said
order. We may in this connection also refer
to the Schedule to the CPC, Appendix E
which gives various forms for summons to
be
issued
to
parties
in
execution
proceedings especially Form No. 40 which
deals with "Summons to appear and answer
charge of obstructing execution of decree
(Order 21, Rule 97)". The said form reads
as under:

"No. 40

Summons to Appear and Answer
Charge of

Obstructing
Execution
of
Decree
(Order 21, Rule 97)

(Title)

To,

...

Whereas ..., the decree-holder in the
above suit, has complained to this Court
that you have resisted (or obstructed) the
officer charged with the execution of the
warrant for possession:

You are hereby summoned to appear
in this Court on the ... day of ... 19..., at ...
a.m., to answer the said complaint.

Given under my hand and the seal of
the Court, this ... day of 19....

Judge."

7. It is, therefore, clear that in an
application under Order 21, Rule 97
moved by a decree-holder who complains
about the resistance or obstruction offered
by any person to the decree-holder in his
attempt
at
obtaining
possession
of
property and who wants such obstruction
or resistance to be removed which
otherwise is an impediment in his way, a
lis arises between the decree-holder
applicant under Order 21, Rule 97 on the
one hand and such obstructionist or
resisting party on the other, to whom
summons have been issued by the Court as
per Form No. 40. When such a lis arises, it
has to be adjudicated upon as enjoined by
Order 21, Rule 97, sub-rule (2). The
procedure for adjudicating such a lis has to
be
culled
out
from
the
remaining
succeeding Rules of Order 21. This
directly takes us to the consideration of
Order 21, Rule 101 which reads 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."

Now it is obvious that such questions
relating to the right, title and interest in the
property arising between the parties to any
proceedings under Order 21, Rule 97 or
Rule 99 have to be adjudicated upon by
following an identical gamut of procedure
by the executing court. The said gamut of
procedure is laid down by Order 21, Rule
98 which reads as under:

"98. Orders after adjudication.--(1)
Upon the determination of the questions
referred to in Rule 101, the Court shall, in
accordance with such determination and
subject to the provisions of sub-rule (2),--

(a) make an order allowing the
application and directing that the applicant
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
281
be put into the possession of the property or
dismissing the application; or

(b) pass such other order as, in the
circumstances of the case, it may deem fit.

(2) 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, or by any transferee, where such
transfer was made during the pendency of
the suit or execution proceeding, it shall
direct that the applicant be put into
possession of the property, and where the
applicant is still resisted or obstructed in
obtaining possession, the Court may also,
at the instance of the applicant, order the
judgment-debtor, or any person acting at
his instigation or on his behalf, to be
detained in the civil prison for a term which
may extend to thirty days."

It is now time for us to consider Order
21, Rule 99 which reads as under:

"99. Dispossession by decree-holder
or purchaser.--(1) Where any other person
than the judgment-debtor is dispossessed of
immovable property by the holder of a
decree for the possession of such property
or, where such property has been sold in
execution of a decree, by the purchaser
thereof, he may make an application to the
Court complaining of such dispossession.

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

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
decree-holder
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
the 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 99 CPC 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
282 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

9. 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 decree-holder 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 decreeholder the remedy available to the decreeholder against such an obstructionist is 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 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
99 CPC 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 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
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
283
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 on 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 97 CPC 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 to 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.

10. In this connection we may also
profitably refer to a judgment of a Bench of
three learned Judges of this Court in the
case of Bhanwar Lal v. Satyanarain [(1995)
1 SCC 6] . In that case the Bench
consisting
of
K.
Ramaswamy,
S.C.
Agrawal and N. Venkatachala, JJ., had to
consider a parallel fact-situation. One
Satyanarain had obstructed to the delivery
of possession of the suit immovable
property which was sought to be obtained
in execution by the appellant decree-holder.
After such an obstruction was offered by
Satyanarain the decree-holder moved an
application under Order 21, Rule 35 for
police assistance to remove the obstruction
caused by Satyanarain. The executing court
directed the decree-holder to make an
application under Order 21, Rule 97. This
Court took the view that the very
application under Order 21, Rule 35, subrule (3) for police assistance for removal of
obstruction caused by Satyanarain had to
be treated to be an application under Order
21, Rule 97 and such an application was
maintainable and could not be said to be
beyond limitation. In this connection the
following pertinent
observations
were
made by this Court: (SCC pp. 8-9, paras 26)

"2. The crux of the question is whether
the application filed on 25-5-1979 by the
appellant, though purported to be under
Order 21, Rule 35(3) against Satyanarain,
is convertible to one under Order 21, Rule
97. Order 21, Rule 35(3) provides that:

''35. (3) Where possession of any
building on enclosure is to be delivered and
the person in possession, being bound by
the decree, does not afford free access, the
Court, through its officers, may, after
giving reasonable warning and facility to
any woman not appearing in public
according to the customs of the country to
withdraw, remove or open any lock or bolt
or break open any door or do any other act
necessary for putting the decree-holder in
possession.'

3. A reading of Order 21, Rule 35(3)
postulates that the person in possession of
284 INDIAN LAW REPORTS ALLAHABAD SERIES
the immovable property to be delivered
under the decree must be per force bound
by the decree. Admittedly, Satyanarain was
not a judgment-debtor and that therefore,
he is not bound by the decree unless he
claims right, title or interest through the
judgment-debtor, Ram Kishan. The person
resisting delivery of possession must be
bound by the decree for possession. In
other words the resistor must claim derivate
title from the judgment-debtor. The court
gets power under Order 21, Rule 97 to
remove such obstruction or resistance and
direct its officer to put the decree-holder in
possession of the immovable property after
conducting enquiry under Rule 97.

4. Order 21, Rule 97 provides thus:

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

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

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 97 CPC
clearly envisages that ''any person' even
including the judgment-debtor irrespective
whether he claims derivative title from the
judgment-debtor 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 decreeholder 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) of 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."

11. In view of the aforesaid settled
legal position, therefore, and in the light of
the statutory scheme discussed by us earlier
it must be held that Respondent 1 decreeholder's application dated 6-5-1991 praying
for issuance of warrant for delivery of
possession with the aid of armed force, was
in substance for removal of obstruction
offered by the appellant and others under
Order 21, Rule 97 CPC and had to be
adjudicated upon as enjoined by Order 21,
Rule 97, sub-rule (2) read with Order 21,
Rule 101 and Order 21, Rule 98. In this
connection the Court had also to follow the
2 All. Salik Ram Singh @ Salik Ram Vs. A.D.J., Court No. 3, Gonda & Ors.
285
procedure laid down by Order 21, Rule 105
which enjoins the executing court to which
an application is made under any of the
foregoing rules of the order to fix a date of
hearing of the application. As the executing
court refused to adjudicate upon the
obstruction and the claim of the appellant
who
obstructed
to
the
execution
proceedings it had clearly failed to exercise
jurisdiction vested in it by law. The High
Court in revision also committed the same
error by taking the view that such an
application was not maintainable. It is of
course true as submitted by learned counsel
for the decree-holder that in para 4 of the
judgment under appeal the High Court has
noted that there was some discrepancy
about the khasra number. But these are
passing observations.