# Seth Daryablal Manik Lal Tadaiya & Anr v. Siddh Gopal Kudariya & Anr

- **Citation:** (2022) 4 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-30
- **Case number:** Matters Under Article 227 No. 837 of 2022
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seth-daryablal-manik-lal-tadaiya-anr-v-siddh-gopal-kudariya-anr-48356
- **Pages:** 13

## Headnote

Civil Law - Code of Civil Procedure, 1908
- Order XXI, Rules 97-101 and Section
151--Suit--For arrears of rent and ejectment-
-Decree-holder claimed to be landlord of first
floor of the house No. 196 rented to
respondent No. 2 at monthly rent of ` 100
since 1986--Respondent No. 2 defaulted in
payment
of
rent
since
1.6.2005--Notice
terminating the tenancy and demanding
arrears of rent on 12.7.2013 served on
respondent No. 2 on 19.7.2013--Rent was not
tendered--Suit filed on 13.8.2013 decreed on
28.3.2017--Revision filed thereagainst came
to be dismissed--Tenant-respondent No. 2
challenged the same by filing petition under
Article 227 of the Constitution--Same stood
dismissed--Courts below dismissed application
under Order XXI, Rule 97 on ground that
present
set
of
proceedings
have
been
launched to linger on the case and to delay
the execution of the decree--Executing court
not obliged to determine a question merely
because the resister or objector has raised it--
Executing court obliged to determine question
which was legally arisen between the parties
and
secondly
it
must
be
relevant
for
consideration and determination between the
parties--Courts below rightly rejected the
application under Order XXI, Rule 97, C.P.C.
holding that it was a dilatory tactic by
petitioners to stall the execution proceedings
launched by the decree holder.

Writ petition dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,997 of 44,724. This is a partial read: ask again with offset=39997 for what follows._

1010 INDIAN LAW REPORTS ALLAHABAD SERIES
30. In the case of the petitioners, the
lease term ran out after 30 years in March,
2013. There could not have any question of
consideration
for
renewal.
The
only
question to be considered by the Cantt
Board was for fresh grant. Fresh grant
alone could be considered for a public
premises like the shop in question which
was constructed in the Cantonment land by
the Cantt Board through public auction.

31. This Court finds no good ground
to show interference in the order impugned.

32. The petition is dismissed.

33. One month's time from today is
granted to vacate the premises in question
and hand over the peaceful and vacant
possession to the respondent nos. 6 and 7.

34. The petitioners shall also be liable
to pay damages as determined in the order
dated 30.07.2019, as the said order has
been affirmed by the District Judge and
also by this Court.
----------
(2022)04ILR A1010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 837 of 2022
(Civil)

Seth Daryablal Manik Lal Tadaiya & Anr.
 ...Petitioners
Versus
Siddh Gopal Kudariya & Anr.
 ...Respondents

Counsel for the Petitioners:
Ms. Shreya Gupta, Sri Ravi Anand Agarwal
Counsel for the Respondents:
Ms. Rama Goel Bansal, Ms. Shalini Goel

Civil Law - Code of Civil Procedure, 1908
- Order XXI, Rules 97-101 and Section
151--Suit--For arrears of rent and ejectment-
-Decree-holder claimed to be landlord of first
floor of the house No. 196 rented to
respondent No. 2 at monthly rent of ` 100
since 1986--Respondent No. 2 defaulted in
payment
of
rent
since
1.6.2005--Notice
terminating the tenancy and demanding
arrears of rent on 12.7.2013 served on
respondent No. 2 on 19.7.2013--Rent was not
tendered--Suit filed on 13.8.2013 decreed on
28.3.2017--Revision filed thereagainst came
to be dismissed--Tenant-respondent No. 2
challenged the same by filing petition under
Article 227 of the Constitution--Same stood
dismissed--Courts below dismissed application
under Order XXI, Rule 97 on ground that
present
set
of
proceedings
have
been
launched to linger on the case and to delay
the execution of the decree--Executing court
not obliged to determine a question merely
because the resister or objector has raised it--
Executing court obliged to determine question
which was legally arisen between the parties
and
secondly
it
must
be
relevant
for
consideration and determination between the
parties--Courts below rightly rejected the
application under Order XXI, Rule 97, C.P.C.
holding that it was a dilatory tactic by
petitioners to stall the execution proceedings
launched by the decree holder.

Writ petition dismissed. (E-9)

List of Cases cited:

1. Shreenath & ors. Vs Rajesh & ors.
MANU/SC/0286/1998;

2. Brahmdeo Chaudhary Vs Rishikesh Prasad
Jaiswal & ors. MANU/SC/0191/1997;

3. Silverline Forum Pvt. Ltd. Vs Rajiv Trust & ors.
MANU/SC/0252/1998;

4. Bool Chand & ors. Vs Rabia & ors.
MANU/SC/0867/2016;
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1011
5.
Noorduddin
Vs
K.L.
Anand
MANU/SC/0533/1995;

6. N.S.S. Narayana Sarma & ors. Vs Goldstone
Exports (P) Ltd. & ors. MANU/SC/0743/2001
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for the petitioners and Ms. Rama
Goel Bansal, learned counsel for the
respondent no. 1.

2. This is a petition filed under Article
227 of Constitution of India challenging the
judgment and order dated 04.01.2022
passed by District Judge, Jhansi in S.C.C.
Revision No. 39 of 2021 as well as
judgment and order dated 30.10.2021
passed by Judge Small Causes, Jhansi in
Misc. Case No. 28 of 2019 rejecting the
application filed by objectors/petitioners
under Order 21 Rule 97-101 C.P.C. and
Section 151 C.P.C. and allowing the
application 39-C filed by the decreeholder/respondent no. 1.

3. Facts in nutshell giving rise to the
petition
are
that
the
decreeholder/respondent no. 1 filed a S.C.C. Suit
No. 53/2013 against respondent no. 2 for
arrears of rent and ejectment. The decreeholder, claiming himself to be the landlord
of the first floor of House No. 196, Jawahar
Chowk, City- Jhansi which was rented to
respondent no. 2 at monthly rent of
Rs.100/- since the year 1986. According to
decree-holder/respondent no. 1, respondent
no. 2 defaulted in payment of rent since
01.06.2005, despite demand. A notice was
issued on 12.07.2013 which was served
upon
tenant-respondent
no.
2
on
19.07.2013 determining the tenancy and
demanding arrears of rent. When the rent
was not tendered, a S.C.C. Suit No. 53 of
2013 was filed on 13.08.2013 which was
decreed by the judgment and decree dated
28.03.2017 passed by Judge, Small Cause
Court, Jhansi. Against the said order,
S.C.C. Revision No. 24 of 2017 was filed
which was dismissed by judgment dated
25.09.2019 passed by Additional District
Judge/ Special Judge (S.C./S.T. Act),
Jhansi.

4. The tenant-respondent no. 2
challenged both the orders before this
Court through Writ Petition No. 8309 of
2019, under Article 227 of Constitution of
India. This Court vide judgment dated
14.11.2019 dismissed the writ petition and
found the tenant to be in arrears of rent and
liable to be ejected. Immediately after two
days on 16.11.2019, the present petitioners
filed an application under Order 21 Rule
97-101 and Section 151 C.P.C. on the
ground that the property in dispute was let
out to the firm Seth Daryablal Manik Lal
Tadaiya, whose proprietor was one Sunil
Kumar
Tadaiya
who
had
died
on
11.05.2015 and after his death, petitioner
no. 2, Smt. Lata Tadaiya had become the
proprietor of the firm. It was further
contended that shop in question was let out
to the firm in the year 1967 by one Shankar
Lal Kudariya, father of decree-holder,
respondent no. 1 and it was a partnership
firm which continued to run till 1988, and
after its dissolution the firm continued as a
proprietorship. The firm had been paying
rent to the father of decree-holder/
respondent no. 1. After death of Shankar
Lal Kudariya, his son respondent no. 1 and
his brother, Dr. Awadh Kishore took the
rent. It was further stated in the application
that
firm
had
tendered
rent
from
01.10.2000 to 30.11.2004 amounting to
Rs.10,000/- on 28.06.2008. According to
the
application,
the
decree-holder,
respondent no.
1
in
collusion
with
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 2 had got the decree for
eviction
without
information
to
the
petitioners. In Para 9 of the application, it
has been stated that it was for the first time
in month of October, 2019 that petitioners
got information regarding the judgment in
the matter by Judge Small Cause Court.
The said application was contested by the
decree-holder/respondent no. 1 and an
objection was filed wherein the contents
made in the application were vehemently
denied. It was stated that the petitioner no.
2, Smt. Lata Tadaiya is the sister-in-law of
respondent no. 2 and after the writ petition
was
dismissed
on
14.11.2019,
the
application under Order 21 Rule 97 C.P.C.
was filed at the behest of respondent no. 2
through the petitioners. The Judge, Small
Cause Court on 30.10.2021 dismissed the
application which was registered as Misc.
Case No. 28 of 2019 on the ground that the
application was filed to delay the execution
proceedings launched by decree-holder/
respondent no. 1 being Execution Case No.
29 of 2017. Against the said order, a S.C.C.
Revision No. 39 of 2021 was filed which
was also dismissed on 04.01.2022. Hence,
the present petition.

5. Ms. Shreya Gupta, learned counsel
for the petitioners submitted that both the
courts below were not correct to reject the
application
filed
by
third
party
objectors/petitioners under Order 21 Rule
97-101 C.P.C. which enjoins the executing
court to adjudicate all questions (including
questions relating to right, title and interest
in the property) arising between the decreeholder and the third party. According to
her, the executing court should have framed
issues and adjudicated the dispute that has
arisen between the parties.

6.
She
further
submitted
that
revisional court had wrongly recorded
finding on the basis of rent receipt issued in
the name of petitioner firm, paying rent
through Sushil Kumar Tadaiya, respondent
no. 2. The courts below by refusing to
frame issues and give opportunity to
petitioners to lead evidence is against the
provisions of Rule 97-101 of Order 21
C.P.C. According to her, the petitioners
have prima facie established a case through
documentary evidence that petitioner firm
was let out the shop in the year 1967 and at
present it was sole proprietorship firm and
judgment and decree passed by courts
below were collusive and without hearing
the petitioners. The courts have not
followed the procedure as established under
law. Reliance has been placed upon
decision of Apex Court in case of
Shreenath and others vs. Rajesh and
others, AIR 1998 SC 1827; Brahmdeo
Chaudhary
vs.
Rishikesh
Prasad
Jaiswal, AIR 1997 SC 856 and Silverline
Forum Pvt. Ltd. vs. Rajiv Trust, AIR
1998 SC 1754.

7. Ms. Rama Goel Bansal, learned
counsel appearing for the decree-holder/
respondent no. 1 submitted that present
proceedings has been set up by judgment
debtor,
respondent
no.
2
through
petitioners, as the petitioner no. 2 is sisterin-law of respondent no. 2. She contended
that the shop in question was let out in the
year 1986 to respondent no. 2 who had
been continuously paying the rent to
respondent no. 1 and when default was
committed the suit for arrears of rent and
ejectment was filed which was decreed by
the Judge, Small Causes on 28.03.2017 and
the revision filed against the said judgment
was also dismissed on 25.09.2019. The
respondent no. 2 had challenged both the
orders through writ petition and the writ
petition was dismissed on 14.11.2019.
According to Ms. Bansal, immediately after
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1013
the dismissal of the writ petition the present
Misc. Case No. 28 of 2019 was filed by
petitioners on 16.11.2019 to thwart the
execution proceedings filed by the decreeholder/respondent no. 1 being Execution
Case No. 29 of 2019. According to her, the
said proceedings are only to delay the
execution case and the decree-holder could
not get the fruits fructified pursuant to
judgment and decree passed by courts
below. She has relied upon the decision of
Apex Court in case of Silverline Forum
Pvt. Ltd. vs. Rajiv Trust and another,
(1998) 3 SCC 723, Para Nos. 10 to 15;
Bool Chand (D) Through Legal Heirs
and others vs. Rabia and others, 2016
Supreme (SC) 1656; Noorduddin vs. Dr.
K.L.
Anand,
(1995)
1
SCC
242;
Shreenath and another vs. Rajesh and
others, (1998) 4 SCC 543 and N.S.S.
Narayana
Sarma
and
others
vs.
Goldstone Exports (P) Ltd. and others,
(2002) 1 SCC 662.

8. I have heard counsel for both the
parties
and
have
given
careful
consideration to the material on record.

9. The question which emerges for
consideration is whether an application
filed by a third party objector under Order
21 Rule 97-101 C.P.C. in execution
proceedings,
the
same
has
to
be
mandatorily considered after framing of the
issues and treating it to be a suit.

10. Before adverting to decide the
issue in hand, a cursory glance of Order 21,
Rule 35; Order 21, Rule 36 and Order 21
Rule 97 to 101 is necessary, which are
extracted hereasunder:-

"35.
Decree
for
immovable
property.--(1) Where a decree is for the
delivery of any immovable property,
possession thereof shall be delivered to the
party to whom it has been adjudged, or to
such person as he may appoint to receive
delivery on his behalf, and, if necessary, by
removing any person bound by the decree
who refuses to vacate the property.

(2) Where a decree is for the joint
possession of immovable property, such
possession shall be delivered by affixing a
copy of the warrant in some conspicuous
place on the property and proclaiming by
beat of drum, or other customary mode, at
some convenient place, the substance of the
decree.

(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.

36. Decree for delivery for
immovable property when in occupancy of
tenant--Where a decree is for the delivery
of
any
immovable
property
in
the
occupancy of a tenant or other person
entitled to occupy the same and not bound
by the decree to relinquish such occupancy,
the Court shall order delivery to be made
by affixing a copy of the warrant in some
conspicuous place on the 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.

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
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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
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.

99. Dispossession by decreeholder or purchaser.-- (1) Where any
person other 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.

100. Order to be passed upon
application complaining of dispossession.-
-Upon the determination of the questions
referred to in rule 101, the Court shall, in
accordance with such determination,--

(a) make an order allowing the
application and directing that the applicant
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.

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."

11. From the reading of sub-clause (1)
of Rule 35 Order 21, it is clear that the
executing court delivers actual physical
possession of the disputed property to the
decree-holder or to such person as he may
appoint to receive delivery on his behalf,
and, if necessary, by removing any person
bound by the decree who refuses to vacate
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1015
the property. The significance is of the
words removing any person bound by the
decree.

12. Rule 36 of Order 21 envisages
that when the immovable property is in
possession of a tenant or other person not
bound by the decree, the Court delivers
possession by affixing a copy of the
warrant in some conspicuous place of the
said property and proclaiming to be
occupant by beat of drum or other
customary mode, at some convenient place,
the substance of the decree in regard to the
property.

13. While Order 21 Rule 97 envisages
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. Rule 101
provides for 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 shall be determined by
the Court dealing with the application and
not by separate suit for this purpose. Rules
97 and 101 were amended by Amending
Act of 1976 so as to shorten the litigation
as the decree-holder could not get the fruits
of the decree fructified due to long drawn
battles.

14. Thus, from the conjoint reading of
Rule 35 of Order 21, Rule 36 of Order 21
and Rules 97 to 101 of Order 21, it culls
out that Rule 35 Order 21 deals with
delivery of possession of an immovable
property to the decree-holder by delivery of
actual physical possession and removing
any person in possession who is bound by
the decree, while Order 21 Rule 36
provides only for a symbolic possession
where the tenant is in actual possession.
While Order 21 Rule 97 conceives of cases
where delivery of possession to the decreeholder is resisted by any person. "Any
person". "Any person" 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. Prior to 1976 Amendment, Rule
101 of Order 21 was different and by virtue
of then Rule 103, a person was to file a suit
for
establishing
his
right,
but
post
amendment one need not file suit even in
such case as all disputes are to be settled by
executing court itself finally under Rule
101 of Order 21 C.P.C.

15. In the case in hand, the eviction
proceedings by decree-holder/ respondent
no. 1 were launched against respondent no.
2 in the year 2013 and the suit was decreed
on 28.03.2017. The respondent no. 2 had
challenged
the
order
through S.C.C.
Revision which was also dismissed on
25.09.2019 and finally the matter stood
decided by judgment of this Court dated
14.11.2019,
writ
petition
filed
by
respondent no. 2 having been dismissed.

16. Present litigation was started at
the
behest
of
petitioners
by
filing
application under Order 21 Rule 97-101
C.P.C. on 16.11.2019, immediately after
two days of dismissal of the writ petition
filed by respondent no. 2. The important
fact for consideration is that petitioner no. 2
and respondent no. 2 are related to each
other. Respondent no. 2 is brother-in-law of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner no. 2 and real brother of Sunil
Kumar Tadaiya, who is alleged to have
died in the year 2015.

17. In the application filed by
petitioners, it has been contended that the
shop in question was let out by father of
decree-holder/respondent no. 1 in the year
1967. It was a partnership firm and the
same carried out the business till 1988,
when it was converted into a proprietorship
business and was rented by husband of
petitioner no. 2, Sunil Kumar Tadaiya in
the name of Seth Daryablal Manik Lal
Tadaiya.

18. Both courts below have dismissed
the application under Order 21 Rule 97 on
the ground that the present set of
proceedings have been launched as a
dilatory tactics to linger on the case and so
the decree be not executed in favour of
respondent no. 1. The courts below have
recorded finding that cheque which was
issued for payment of rent from 2000
onwards was by Sushil Kumar Tadaiya,
respondent no. 2, thus, the stand taken that
partnership firm was reconstituted and the
sole proprietorship continued by Sunil
Kumar Tadaiya from 1988 onwards was
against the material on record.

19. This Court finds from the reading
of the application filed by petitioners that
there is no disclosure as to the fact that who
are the partners of the firm which was
constituted in the year 1967 and until it was
reconstituted as a sole proprietorship. The
finding recorded by courts below to the
extent that neither the application disclosed
the said fact nor any material has been
brought on record except the rent receipts
which are issued in the name of respondent
no. 2, Sushil Kumar Tadaiya in the year
2008 establishes the fact that he was in
possession over the shop in dispute as the
tenant.
20. This Court also finds that the
petitioners have not disclosed any fact in
relation to the partnership firm and its
partners who were running the business
from the shop in question, only a sketchy
disclosure has been made in the application
claiming themselves to be in possession of
the property.

21. The Apex Court in case of Silverline
Forum Pvt. Ltd. (supra) while dealing
with somewhat similar issue under Order
21 Rule 97 held that all questions arising
between the parties to a proceeding on an
application under Rule 97, would envelop
only such questions as would legally arise
for determination between those parties. In
other words, the court is not obliged to
determine a question merely because the
resister raised. According to the Court, the
question which executing court is obliged
to determine under Rule 101, must possess
two adjuncts. First is that such questions
should have legally arisen between the
parties, and the second is, such questions
must be relevant for consideration and
determination between the parties. The
Court further held that in adjudication
process envisaged under Order 21 Rule
97(2) of the Code, the execution court can
decide whether the question raised by a
resister or obstructor legally arises between
the parties. Relevant paragraphs 10 to 14
are extracted hereasunder:-

"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
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1017
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 execution 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.

11.
When
a
decree-holder
complains of resistance to the execution of
a decree it is incumbent on the execution
court to adjudicate upon it. But while
making adjudication, the court is obliged to
determine only such question as may be
arising between the parties to a proceeding
on such complaint and that such questions
must be relevant to the adjudication of the
complaint.

12. The words "all questions
arising between the parties to a proceeding
on an application under Rule 97" would
envelop only such questions as would
legally arise for determination between
those parties. In other words, the court is
not obliged to determine a question merely
because the resister raised it. The questions
which the executing court is obliged to
determine under Rule 101, must possess
two adjuncts. First is that such questions
should have legally arisen between the
parties, and the second is, such questions
must be relevant for consideration and
determination between the parties, e.g., if
the obstructor admits that he is a transferee
pendente lite it is not necessary to
determine a question raised by him that he
was unaware of the litigation when he
purchased the property. Similarly, a third
party, who questions the validity of a
transfer made by a decree-holder to an
assignee, cannot claim that the question
regarding its validity should be decided
during execution proceedings. Hence, it is
necessary that the questions raised by the
resister or the obstructor must legally arise
between him and the decree-holder. In the
adjudication process envisaged in Order 21
Rule 97(2) of the Code, the execution court
can decide whether the question raised by a
resister
or
obstructor
legally
arises
between the parties. An answer to the said
question also would be the result of the
adjudication contemplated in the subsection.

13. In the above context we may
refer to Order 21 Rule 35(1) which reads
thus:

"35. (1) Where a decree is for the
delivery of any immovable property,
possession thereof shall be delivered to the
party to whom it has been adjudged, or to
such person as he may appoint to receive
delivery on his behalf, and, if necessary, by
removing any person bound by the decree
who refuses to vacate the property."

14. It is clear that the executing
court can decide whether the resister or
obstructor is a person bound by the decree
and he refuses 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. The 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
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
adduce evidence for such determination if
the court deems it necessary."

22. In Bool Chand (supra), the Apex
Court held that a genuine petition to
execution of a decree can certainly be
considered and frivolous objections which
deprive the decree-holder of benefit of such
decree should be discouraged. Relevant
paras 11 and 12 are extracted hereasunder:-

"11. It is clear from the finding
recorded by the courts below that the
predecessor of the respondents was party
to
the
sale
certificate
which
the
respondents never challenged. There is no
evidence on record that they were in
possession prior to the passing of the
decree as they did not take part in
proceedings in spite of knowledge of the
proceedings for a long period of time. The
suit was duly contested by the original
defendants for a long period of 30 years. It
could not, thus, be held that the original
defendants
had
colluded
with
the
appellant-plaintiffs. In this view of the
matter, there was no justification for the
High Court to have set aside the order of
the courts below only by observing that
the executing court had not recorded
finding that regular enquiry, as suit, was
not required. This observation is also
against the record as the executing court
has, after finding that the objections were
misconceived in substance, held that no
regular enquiry as a suit was required.
There was thus, no infirmity in the finding
recorded by the courts below in rejecting
the objections.

12. While a genuine petition for
execution of a decree can certainly be
considered, the court cannot be oblivious of
frivolous objections being filed after a
decree is passed in long-drawn contested
proceedings. Attempt to deprive the decreeholder of benefit of such decree should be
discouraged by the court where such
objection is raised. The impugned order is
thus, clearly erroneous and unsustainable
and not a result of sound judicial
approach."

23. In Noorduddin (supra), the Apex
Court held that the scheme of the Code
pursuant to the amendment of 1976 appears
to put an end to the protraction of the
execution and to shorten the litigation
between the parties or persons claiming
right, title and interest in the immovable
property in execution. Relevant paragraphs
8 and 9 are extracted hereasunder:-

"8. Thus, the scheme of the Code
clearly
adumbrates
that
when
an
application has been made under Order 21,
Rule 97, the court is enjoined to adjudicate
upon the right, title and interest claimed in
the property arising between the parties to
a proceeding or between the decree-holder
and the person claiming independent right,
title or interest in the immovable property
and an order in that behalf be made. The
determination shall be conclusive between
the parties as if it was a decree subject to
right of appeal and not a matter to be
agitated by a separate suit. In other words,
no other proceedings were allowed to be
taken. It has to be remembered that
preceding
Civil
Procedure
Code
Amendment Act, 1976, right of suit under
Order 21, Rule 103 of 1908 Code was
available which has been now taken away.
By necessary implication, the legislature
relegated the parties to an adjudication of
right, title or interest in the immovable
property under execution and finality has
been accorded to it. Thus, the scheme of the
Code appears to be to put an end to the
protraction of the execution and to shorten
the litigation between the parties or
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1019
persons claiming right, title and interest in
the immovable property in execution.

9. Adjudication before execution
is an efficacious remedy to prevent fraud,
oppression, abuse of the process of the
court or miscarriage of justice. The object
of law is to mete out justice. Right to the
right, title or interest of a party in the
immovable property is a substantive right.
But the right to an adjudication of the
dispute in that behalf is a procedural right
to which no one has a vested right. The
faith of the people in the efficacy of law is
the saviour and succour for the sustenance
of the rule of law. Any weakening like (sic)
in the judicial process would rip apart the
edifice of justice and create a feeling of
disillusionment in the minds of the people
of the very law and courts. The rules of
procedure have been devised as a channel
or a means to render substantive or at best
substantial justice which is the highest
interest of man and almameter (sic) for the
mankind. It is a foundation for orderly
human relations. Equally the judicial
process should never become an instrument
of oppression or abuse or a means in the
process of the court to subvert justice. The
court has, therefore, to wisely evolve its
process to aid expeditious adjudication and
would preserve the possession of the
property in the interregnum based on
factual situation. Adjudication under Order
21, Rules 98, 100 and 101 and its
successive rules is sine qua non to a finality
of the adjudication of the right, title or
interest in the immovable property under
execution."

24. In Shreenath (supra), the
Supreme Court while considering the
application under Order 21 Rule 97-101
relying upon the earlier decision in
Noorduddin (supra) held as under:-

"1.The seeker of justice many a
time has to take long circuitous routes,
both on account of hierarchy of courts and
the procedural law. Such persons are and
can be dragged till the last ladder of the
said hierarchy for receiving justice but
even here he only breathes fear of receiving
the fruits of that justice for which he has
been aspiring to receive. The reach this
stage is in itself an achievement and
satisfaction as he, by then has passed
through a long arduous journey of the
procedural law with many hurdles replica
of mountain terrain with ridges and
furrows. When he is ready to take the bite
of that fruit, he has to pass through the
same terrain of the procedural law in the
execution proceedings the morose is writ
large on his face. What looked inevitable to
him to receive it at his hands distance is
deluded back into the horizon. The creation
of the hierarchy of courts was for a
reasonable objective for conferring greater
satisfaction to the parties that errors, if
any, by any of the lower courts under the
scrutiny of a higher court be rectified and
long procedural laws also with good
intention to exclude and filter out all
unwanted who may be the cause of
obstruction to such seeker in his journey to
justice. But this obviously is one of the
causes of delay in justice. Of course, under
this pattern the party wrongfully gaining
within permissible limits also stretches the
litigation as much as possible. Thus this
has been the cause of anxiety and concern
of various authorities, legislators and
courts. How to eliminate such a long
consuming justice? We must confess that
we have still to go a long way before true
satisfaction in this regard is received. Even
after one reaches the stage of final decree,
he has to undergo a long distance by
passing through the ordained procedure in
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
the execution proceedings before he
receives the bowl of justice."

25. In N.S.S. Narayana Sarma
(supra), the Court considering the earlier
decisions of Apex Court in case of
Shreenath (supra) and Silverline Forum
Pvt. Ltd. (supra) held as under:-

"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 shall be
determined by the court dealing with the
application and not by a separate suitand
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.(emphasis supplied)

16. Interpreting the provisions in
these Rules, a three-Judge Bench of this
Court in the case of Silverline Forum (P)
Ltd. v. Rajiv Trust [(1998) 3 SCC 723] held
: (SCC pp. 727-28, paras 10-12)

"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
4 All. Seth Daryablal Manik Lal Tadaiya & Anr. Vs. Siddh Gopal Kundariya & Anr.
1021
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 execution 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.

11.
When
a
decree-holder
complains of resistance to the execution of
a decree it is incumbent on the execution
court to adjudicate upon it. But while
making adjudication, the court is obliged to
determine only such question as may be
arising between the parties to a proceeding
on such complaint and that such questions
must be relevant to the adjudication of the
complaint.

12. The words ''all questions
arising between the parties to a proceeding
on an application under Rule 97' would
envelop only such questions as would
legally arise for determination between
those parties. In other words, the court is
not obliged to determine a question merely
because the resister raised it. The questions
which the executing court is obliged to
determine under Rule 101, must possess
two adjuncts.