MANU/SC/0986/2019

Equivalent Citation: AIR2019SC 4840, 2019(4)ALD258, 2019 (137) ALR 263, 2019(5)ALT194, 128(2019)C LT985, 2019(6)C TC 71,
2019(3)J.L.J.R.397, 2020-2-LW573, 2020(2)MhLj282, 2020(1)MPLJ525, 2019(3)PLJR381, 2019(3)RC R(C ivil)926, 2020 146 RD439, 2020 146
RD697, 2019(10)SC ALE93, 2019 (7) SC J 95, 2020 (1) WLN 104 (SC )

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5632 of 2019 (Arising out of SLP (C) No. 9665 of 2011)
Decided On: 29.07.2019
Appellants: Shamsher Singh and Ors.
Vs.
Respondent: Nahar Singh (D) thr. L.Rs. and Ors.
Hon'ble Judges/Coram:
Ashok Bhushan and Navin Sinha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Debal Banerji, Sr. Adv., Joydeep Mazumdar, Rohit
Dutta, Priyata Chakraborty and Dipak Kumar Jena, Advs.
For Respondents/Defendant: Amol Chitale, Ankur S. Kulkarni, Shatadru Chakraborty,
Advs. and Lex Regis Law Offices
Case Category:
ORDINARY CIVIL MATTER - MATTERS RELATING TO SPECIFIC PERFORMANCE OF
CONTRACT
Case Note:
Property - Title over suit premises - Proof thereto - Order XXI Rules 98, 99
and 100 of the Code of Civil Procedure, 1908 (CPC) - Present appeal had
been filed against Division Bench Judgment of High Court, by which appeal
filed by the Respondent No. 1 has been allowed setting aside order of
Executing Court rejecting application filed by Respondent No. 1 under Order
XXI Rules 98, 99 and 100 of CPC - Whether Executing Court had rightly
rejected application of Respondent No. 1 filed under Order XXI Rules 98, 99
and 100 of CPC, he having failed to prove his title over suit premises.
Facts:
Respondent No. 1 claimed right and title of the suit premises on the basis of
adverse possession. It was further claimed that Shamsher Singh, Rajvindar
Singh and Dayal Singh had fraudulently obtained decree in collusion with
Anadi Dutt and has evicted the Respondent No. 1 from the suit property.
Executing Court by order rejected miscellaneous case filed by Respondent
No. 1. Executing court held that, Respondent No. 1 failed to prove that he
has acquired title by way of adverse possession. Against the order rejecting
the Misc. applications filed by Respondent No. 1, first appeal, was filed by
Respondent No. 1 in High Court, which appeal has been allowed by High
Court by the impugned judgment. The High Court by impugned judgment
has set aside the order of the Executing Court disposing the application
filed by Respondent No. 1 under Order XXI Rules 98, 99 and 100 of CPC

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with a direction that, Appellant (Respondent No. 1 in this appeal) should be
put back into possession of the suit property. Held, while allowing the
appeal
1. There is no dispute between the parties that the premises in question
was originally owned by one Tarapada Dutta. The case of the Respondent
No. 1 is that his father Late Iqbal Singh has trespassed into the premises
and after his death in 1965, it was Respondent No. 1, who was in
occupation and possession of the premises. In pursuance of decree for
specific performance of contract passed in suit, in execution proceedings,
the decree holders were put in possession on 12.04.1996. At the time of
taking possession, one Shri Gopal Adak was found present in the premises,
who had claimed to be employee of Respondent No. 1. Respondent No. 1
had filed a suit for declaration of the title on the basis of adverse
possession. [7]
2. In the application, which was filed by Respondent No. 1 for putting him
back into possession under Order XXI Rules 98, 99 and 100 of CPC, the
Respondent No. 1 has claimed his possession since 1965 after death of his
father. There is no dispute between the parties that in execution of decree
of specific performance, the Appellants were put in possession and
Respondent No. 1 aggrieved by his dispossession had filed an application
under Order XXI Rules 98, 99 and 100 of CPC. [8]
3. In the present case, the Rule which has fallen for interpretation is Rule
101 of Order XXI. What was the Rule 101 prior to 1976 Amendment and
subsequent to 1976 amendment is relevant to be noticed to mark the
difference into legislative scheme. [11]
4. Executing Court while determining the miscellaneous application of the
Respondent No. 1 has considered the entire case of the Respondent No. 1
including the documents filed by him for proving his possession. The
Executing Court noticed that Respondent No. 1 has already filed a Suit No.
211 of 1990 for declaration of his title on the basis of adverse possession.
After considering the oral evidence and documentary evidence, the
Executing Court returned the findings that Respondent No. 1 had failed to
establish his case that he has clear right, title and interest over the suit
property by way of adverse possession. [19]
5. The purpose of amendment under Rule 103 is also that any adjudication
made under Rule 101 shall have same force and be subject to the same
conditions as to an appeal or otherwise as if it was a decree. Rule 101,
thus, affords an opportunity to get all issues relating to right, title or
interest in the property to be determined. When the Respondent No. 1 filed
his application claiming to be put back into possession, it was obliged to
establish its right, title or interest in the property without which his
application could not have been allowed. The Executing Court has
considered the application of Respondent No. 1 in right perspective and has
clearly held that Respondent No. 1 failed to prove his title by adverse
possession, hence application deserves to be rejected. [27]
6. High Court committed error in observing that, in application proceedings

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under Order XXI Rules 99, 100 and 101, the Court is not to decide such
question. Without determination of right, title or interest, the application
could not have been allowed. In the proceeding Under Order XXI Rules 99,
100 and 101, right, title or interest has to be determined and without
establishing right, title or interest, the Respondent No. 1 cannot claim that
he should be put back into possession. For putting back into possession, the
Respondent No. 1 was obliged to establish his title to the property by
adverse possession, without which, he could not have asked the Court to
put him back into possession. The High Court clearly erred in allowing the
appeal and the Executing Court has rightly rejected the application filed by
Respondent No. 1. Suit filed by Respondent No. 1 seeking declaration of
title to the property by adverse possession has been subsequently dismissed
by decree and no steps have been taken for restoration of the suit. [28]
7. There is no error in the order passed by the Executing Court and the High
Court committed error in allowing the appeal, directing the Respondent No.
1 to be put back into possession. Appeal allowed. [29]

JUDGMENT
Ashok Bhushan, J.
1 . This appeal has been filed against the Division Bench Judgment of Calcutta High
Court in FMA No. 720 of 2005, by which the appeal filed by the Respondent No. 1 has
been allowed setting aside the order of Executing Court dated 10.08.2004 rejecting
the application filed by Respondent No. 1 Under Order XXI Rules 98, 99 and 100 of
the Code of Civil Procedure (hereinafter referred to as "CPC").
2. Brief facts of the case giving rise to this appeal are:
2 . 1 One Tarapada Dutta owned premises No. 15, Sahanagar Road, P.S.
Tollygunge, Calcutta. An agreement for sale was executed by Anadi Dutt,
who claimed to be son of Tarapada Dutta in favour of Rajvindar Singh in
respect of 4 Kh. 4 Ch. and 00 sft. of land and structures at premises No. 15.
Another agreement for sale was entered by Anadi Dutt with Shamsher Singh
in respect of 4 Kh. 6 Ch. and 6 Sft. of land and structures of premises No.
15.
2.2 The Respondent had filed a T.S. No. 211 of 1990 before the 3rd Munsif at
Alipore praying for decree of declaration of his right with regard to premises
in question on the basis of adverse possession.
2.3 Anadi Dutt having not executed the sale deed in pursuance of agreement
for sale dated 07.05.1990, two title suits being Suit No. 50 of 1994 and 51 of
1994 were filed by Rajvindar Singh and Shamsher Singh, which were decreed
ex-parte on 20.12.1994. In pursuance of decree of the Court, two separate
Deeds of Conveyance were executed in favour of Dayal Singh (Nominee of
Rajvindar Singh) and in favour of Shamsher Singh. Decree holders filed two
execution cases vide Execution No. T.Ex. No. 09 of 1995 and T.Ex. No. 10 of
1995 seeking delivery of possession of the suit property. First Time Court
Bailiff could not succeed in delivering possession, however, subsequently the
Court Bailiff with the help of police delivered Khas vacant possession of the

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 suit premises to the Decree Holder on 12.04.1996.
2.4 After lapse of 30 days, Respondent No. 1 filed two Misc. cases Nos. 10 of
1996 and 11 of 1996 against Rajvindar Singh, Shamsher Singh, Dayal Singh
and Asis Dutt Under Order XXI Rules 98, 99 and 100 Code of Civil Procedure
before the 6th Assistant District Judge, Alipore. In the said two Misc. cases,
Respondent No. 1 claimed that his father Sardar Iqbal Singh was the occupier
and was running his business under the name and style as Public Transport
Business in the suit premises and after his death, Respondent No. 1 has been
running a business under the name and style of Ex-Service United Coal
Enterprise (P) Ltd. In the above said Misc. Case No. 10 of 1996, the
Respondent No. 1 claimed that Anadi Dutt was not the son of Tarapada and it
was Asis Kumar Dutt, who was the only son, owner and only legal heir of
Late Tarapada. It was also claimed that a T.S. No. 211 of 1990 was pending
before 3rd Munsiff at Alipore filed by Respondent No. 1, in which he claimed
right and title of the suit premises on the basis of adverse possession. It was
further claimed that Shamsher Singh, Rajvindar Singh and Dayal Singh had
fraudulently obtained decree in collusion with Anadi Dutt and has evicted the
Respondent No. 1 from the suit property.
2 .5 In Misc. proceeding application, although, the Respondent No. 1 has
impleaded Asis Kumar Dutt but he neither contested the Misc. application nor
challenged the title of Anadi Dutt, against whom an ex-parte decree was
passed. On 21.01.1999, Dayal Singh also got a deed of conveyance executed
in his favour by Asis Kumar Dutt, alleged true legal heir of the Late Tarapada
Dutta. Dayal Singh got his name mutated in Kolkata Municipal Corporation.
2.6 The Executing Court by order dated 10.08.2004 rejected Misc. Case No.
10 of 1996 and Misc. Case No. 11 of 1996 filed by Respondent No. 1.
Executing court held that Respondent No. 1 failed to prove that he has
acquired title by way of adverse possession. Against the order dated
10.08.2004 rejecting the Misc. applications filed by Respondent No. 1, first
appeal, FMA No. 720 of 2005 was filed by Respondent No. 1 in the Calcutta
High Court, which appeal has been allowed by Calcutta High Court by the
impugned judgment dated 15.12.2009. The High Court by impugned
judgment has set aside the order of the Executing Court dated 10.08.2004
disposing the application filed by Respondent No. 1 Under Order XXI Rules
98, 99 and 100 with a direction that Appellant (Respondent No. 1 in this
appeal) should be put back into possession of the suit property. Aggrieved by
the judgment of the High Court, this appeal has been filed.
3 . We have heard Shri Debal Banerji, learned Senior Counsel for the Appellant and
learned Counsel appearing for the Respondent.
4 . Shri Debal Banerji, learned Senior Counsel appearing for the Appellant submits
that Executing Court had rightly rejected the application of Respondent No. 1 filed
Under Order XXI Rules 98, 99 and 100 Code of Civil Procedure, he having failed to
prove his title over suit premises. It is submitted that the Appellants were put in
possession of the property in execution of decree of the Court. The Executing Court
having held that Respondent No. 1 failed to prove his title by adverse possession, the
application was rightly rejected. It is further submitted that T.S. No. 211 of 1990 filed
by Respondent No. 1 claiming for declaration of the title on the basis of adverse
possession has been subsequently dismissed on 16.03.2009. It is submitted that High

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Court committed error in allowing the appeal filed by Respondent No. 1 without any
valid ground. It is submitted that High Court has in its impugned judgment erred in
taking the view that the question whether the Appellant has obtained any title in
respect of the suit property by way of adverse possession or not, need not be gone
into in the appeal. It is submitted that decree passed by Civil Court in favour of the
Appellant was never challenged by anyone including the Respondent No. 1 or Asis
Kumar Dutt, who is claimed by Respondent No. 1 as son of Tarapada Dutta.
Respondent No. 1 having failed to prove his title to the property, he was not entitled
to put back in the possession and High court committed error in allowing the appeal
of Respondent No. 1.
5 . Learned Counsel for the Respondent refuting the submissions of the learned
Counsel for the Appellant contends that the fact is that Respondent No. 1 was in long
possession of the premises and had acquired possessory title. It is submitted that
several documents were filed by the Respondent No. 1 before the Executing Court to
prove his possession. It having been found that Respondent No. 1 was in possession
prior to he being dispossessed in execution of the decree, he was entitled to be put
back into possession. It is submitted that it was not necessary for Respondent No. 1
to establish his title to the land in dispute for purposes of Order XXI Rules 98, 99 and
100 Code of Civil Procedure. It was sufficient for the Respondent No. 1 to prove that
he was in possession prior to his dis-possession, which was sufficient for putting him
back into possession. He submitted that the High Court did not commit any error in
putting back the Appellants into possession by allowing the appeal. He submits that
the Appellants have obtained a fraudulent decree against a person Anadi Dutt,
claiming to be son of Late Tarapada Dutta, whereas the real son is Asis Kumar Dutt.
The Respondent No. 1 has been dispossessed on the basis of a fraudulent ex-parte
decree, on the strength of agreement of sale executed by a person, who has no title
to the property.
6 . We have considered the submissions of the learned Counsel for the parties and
have perused the records.
7 . There is no dispute between the parties that the premises in question was
originally owned by one Tarapada Dutta. The case of the Respondent No. 1 is that his
father Late Iqbal Singh has trespassed into the premises No. 15, Sahanagar Road and
after his death in 1965, it was Respondent No. 1, who was in occupation and
possession of the premises. In pursuance of decree for specific performance of
contract passed in T.S. No. 50 of 1994 and T.S. No. 51 of 1994, in execution
proceedings, the decree holders were put in possession on 12.04.1996. At the time of
taking possession, one Shri Gopal Adak was found present in the premises, who had
claimed to be employee of Respondent No. 1. Respondent No. 1 had filed a suit for
declaration of the title on the basis of adverse possession being T.S. No. 211 of
1990. Copy of the plaint of the suit filed in the Court of 3rd Munsiff, 24 Parganas is
brought on record as Annexure P-1. In the suit, following reliefs had been claimed by
the Respondent No. 1, who was Plaintiff in the suit:
a) A declaratory decree that the Plaintiff has absolute possessory title in the
suit premises No. 15, Sahanagar Road, Calcutta under P.S. Tollygunge as
fully described in the Schedule 'A' of the plaint since the year 1965 to the
exclusion of all other person or persons.
b) Decree for permanent injunction restraining the Defendant and/or any
person on its behalf and agent, its men, for interfering with the Plaintiff's

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 possession and occupation of the suit premises fully described in Schedule
'A' of the plaint in any manner whatsoever.
c) Temporary injunction.
d) Ad-interim injunction in terms of prayer (c) above.
e) Commission.
f) Receiver.
g) Costs.
8. In the application, which was filed by Respondent No. 1 for putting him back into
possession Under Order XXI Rules 98, 99 and 100 Code of Civil Procedure, the
Respondent No. 1 has claimed his possession since 1965 after death of his father.
The Respondent No. 1 in his application has also relied on filing of suit for
declaration of his title being Suit No. 211 of 1990. There is no dispute between the
parties that in execution of decree of specific performance, the Appellants were put in
possession and Respondent No. 1 aggrieved by his dispossession had filed an
application Under Order XXI Rules 98, 99 and 100.
9. Before we proceed further, it is necessary to look into the provisions of Order XXI
Rules 98, 99 and 100, as it existed at the relevant time. It is to be noted that by Code
of Civil Procedure (Amendment) Act, 1976, there has been amendment in Order XXI
Rules 97 to 103. Order XXI Rule 97 deals with the resistance or obstruction to
possession of immovable property, with which we are not concerned. Present is a
case where the Respondent No. 1 alleged his dispossession by decree holders.
10. Order XXI Rules 97 to 103 was substantially amended by Code of Civil Procedure
Amendment Act, 1976, Act No. 104 of 1976 w.e.f. 01.02.1977. The bill further to
amend the code of Civil Procedure of 1908 was introduced in Parliament as Bill No.
27 of 1974 on 08.04.1974. The statement of objects and reasons of the bill is
relevant to be noticed. The statement of objects and reasons as well as notes on
clauses were published in the Gazette of India extraordinary Part II Section (2) on
08.04.1974. Notes of clauses with regard to amendment of Rules 97 to 103 of Order
XXI of Code of Civil Procedure is contained in Clause 75 (Sub-clause xxxiii), which is
to the following effect:
Sub-clause (xxxiii).-The general scheme of Rules 97 to 103 has been altered
on the lines of the amendments proposed to Rules 58 to 63. The main feature
is that questions (including a question relating to right, title or interest in the
property) arising between the parties to a proceeding Under Rule 97 or Rule
99 is to be determined in execution proceeding itself and not left to be
decided by way of separate suit. Rule 98 has been amplified to cover cases of
resistance, etc., by a person acting under any instigation by the judgment-
debtor.
11. In the present case, the Rule which has fallen for interpretation is Rule 101 of
Order XXI. What was the Rule 101 prior to 1976 Amendment and subsequent to 1976
amendment is relevant to be noticed to mark the difference into legislative scheme.
12. Rule 101 prior to amendment contained marginal note "Bona fide claimant to be
restored to possession" which Rule is as follows:

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 101. Where the Court is satisfied thatBona fide claimant to
the applicant was in possession of the be restored to
property on his own account or on possession.
account of some person other than
the judgment-debtor, it shall direct
that the applicant be put into
possession of the property.

1 3 . After the 1976 amendment both the marginal note and Rule 101 was
substantially changed. Rule 101 after 1976 Amendment is as follows:
Question to be 101. All questions (including questions
determined 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.
14. The scope and ambit of Rule 101 prior to amendment was entirely different as
compared to Rule 101 as was brought into statute after 1976 amendment. Under
unamended Rule 101, a bonafide claimant had to be restored to possession and by
virtue of Rule 103, Orders passed Under Rule 101 was conclusive subject to the result
of the suit to be filed by any party not being the judgment-debtor. Unamended Rule
103 was as follows:
103. Any party not being a judgment- Orders
debtor against whom an order is made conclusive
Under Rule 98, Rule 99, or Rule 101 maysubject to
institute a suit to establish the right which regular suit.
he claims to the present possession of the
property; but, subject to the result of
such suit (if any), the order shall be
conclusive.
15. Rule 103 was also amended by 1976 amendment and after the amendment, Rule
103 now is as follows:
O r d e r s to be 103. Where any application has been
treated as adjudicated upon Under Rule 98 or Rule
decrees. 100, the order made thereon shall have
the same force and be subject to the
same conditions as to an appeal or
otherwise as if it were a decree.

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16. There is a marked difference between Rule 101 as it existed prior to amendment
and as it now exists after 1976 amendment. Earlier a person who was a bona fide
claimant and who satisfied that he was in possession of the property on his own
account or on account of some other person then the judgment-debtor could have
been put in possession of the property on an application Under Rules 100 and 101,
whereas now after the amendment for putting back into possession an Applicant has
not only to prove that he is in bona fide possession rather he has to prove his right,
title or interest in the property. What was earlier to be adjudicated in a suit under
unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put
in possession, an Applicant has to prove his right, title or interest in the property and
by simply proving that he was in possession prior to the date he was dispossessed by
decree-holder, he is not entitled to be put back in possession.
17. In view of the statutory scheme which is delineated by amended provisions of
Rule 101, the submissions of the counsel of the Respondent that by simply proving
the fact that he was in possession prior to he being dispossessed by decree-holder,
he should be put back in possession cannot be accepted. The Respondent-applicant
had to prove his right, title or interest in the property to be put back in possession.
18. Now, for ready reference, Order XXI Rules 99, 100 and 101 are quoted below:
99. Dispossession by decree-holder or purchaser--(1) Where any
person other than the judgment-debtor is dispossessed of immovable
property by the holder of a decree for 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.
1 9 . Whether in the facts of the present case, Executing Court was required to
determine questions relating to right, title or interest in the property or on mere

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finding that Respondent No. 1 was in possession prior to he being dispossessed from
the property, he was entitled to put back into possession? The Executing Court while
determining the Misc. application of the Respondent No. 1 has considered the entire
case of the Respondent No. 1 including the documents filed by him for proving his
possession. The Executing Court noticed that Respondent No. 1 has already filed a
Suit No. 211 of 1990 for declaration of his title on the basis of adverse possession.
After considering the oral evidence and documentary evidence, the Executing Court
returned the findings that Respondent No. 1 had failed to establish his case that he
has clear right, title and interest over the suit property by way of adverse possession.
Following observations of the trial court may be referred to in this context:
Next we have to examine the other aspect of the matter, i.e., we are required
to determine all the questions including question relating to right, title and
interest of the suit property which arises under application Under Rule 97 or
99. We have initially observed that there is a title suit pending where the
question about the acquisition of title by the Petitioner by way of adverse
possession is the subject matter. It is to be carefully thought whether at this
stage it will be proper to pass any observation on a matter which is already
pending before a competent Court of law. We cannot ignore that title suit is
yet to be decided conclusively and pending the suit we should not pass any
comment about Petitioner's claim.
Be that as it may, let us find out as to how far the Petitioner has been able to
establish his assertion that he has acquired right, title and interest over the
suit property by way of adverse possession.
Therefore, we find from the evidence of PW1 that it is not wholly trustworthy
and from his oral evidence it is very difficult to appreciate the Petitioner's
case. It is not clear as to how and on what date Tarapada Dutta, the admitted
owner was disposed or in what manner Iqbal Singh came to possess and
occupy the suit property. The elements for asserting right by adverse
possession have not at all been proved in this case. Rather, there has been
no attempt by the Petitioner to establish his acquisition of title by way of
adverse possession.
In a proceeding Under Order 21 Rules 98 and 99 it is even more essential to
establish his right so as to seek relief. The whole burden was upon the PW1
but he failed miserably.
20. Thus, the Executing court returned categorical finding that Appellant has failed to
prove his right, title and interest and his application deserves to be rejected. The
High Court in appeal filed by Respondent No. 1 without upsetting the finding of the
Executing Court that Respondent No. 1 failed to prove his title by adverse possession
allowed the appeal by making following observations:
Be that as it may, the question whether the Appellant has obtained any title
in respect of the suit property by way of adverse possession or not is not
being decided by this Court and thus this Court is not going into the said
question. But the fact remains that the Appellant was very much in
possession of the suit property when the Respondent No. 1 took delivery of
possession of the suit property through the Court's bailiff without any
proceeding being initiated against the Appellant and without the Appellant
being served with any prior notice with regard to such delivery of

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 possession....
21. The amendments made in Order XXI Rules 97 to 103 by Code of Civil Procedure
(Amendment) Act, 1976 came to be considered by this Court in Shreenath and Anr.
v. Rajesh and Ors., MANU/SC/0286/1998 : (1998) 4 SCC 543. This Court while
noticing the question, which had arisen in the above case has made following
observations in paragraph Nos. 2, 3 and 5:
2. The courts within their limitation have been interpreting the procedural
laws so as to conclude all possible disputes pertaining to the decretal
property which is within its fold in an execution proceeding, i.e., including
what may be raised later by way of another bout of litigations through a
fresh suit. Similarly legislatures equally are also endeavouring by
amendments to achieve the same objective. The present case is one in this
regard. Keeping this in view, we now proceed to examine the present case.
3. In interpreting any procedural law, where more than one interpretation is
possible, the one which curtails the procedure without eluding justice is to be
adopted. The procedural law is always subservient to and is in aid of justice.
Any interpretation which eludes or frustrates the recipient of justice is not to
be followed.
5. The question raised is, whether the third party in possession of a property
claiming independent right as a tenant not party to a decree under execution could
resist such decree by seeking adjudication of his objections Under Order 21 Rule 97
of the Civil Procedure Code?
22. In the above case, Respondent No. 1 filed a suit for redemption of mortgage
against Respondent No. 2, which was decreed. The decree directed the delivery of
vacant possession of the mortgaged property to the Applicant (Respondent No. 1). In
the said suit, the Appellants were not parties. The Appellant, who claimed to be in
possession, obstructed the execution of the decree on the ground that they were the
tenants in the shop from much before the execution of the mortgage. In the above
context, this Court noticed the amendments made in Order XXI. In paragraph Nos.
11, 13 and 16, following was laid down:
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 the other person claiming title on their own right to get it adjudicated in
the very 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
the 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.
13. So far Sub-clause (1) of Rule 97 the provision is the same but after the
1976 Amendment all disputes relating to the property made Under Rules 97

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 and 99 are to be adjudicated Under Rule 101, while under unamended
provision under Sub-clause (2) of Rule 97, the executing court issues
summons to any such person obstructing possession over the decretal
property. After investigation Under Rule 98 the court puts back a decree-
holder in possession where the court finds obstruction was occasioned
without any just cause, while Under Rule 99 where obstruction was by a
person claiming in good faith to be in possession of the property on his own
right, the court has to dismiss the decree-holder's application. Thus even
prior to 1976, right of any person claiming right on his own or as a tenant,
not party to the suit, such person's right has to be adjudicated Under Rule 99
and he need not fall back to file a separate suit. By this, he is saved from a
long litigation. So a tenant or any person claiming a right in the property on
the own, if resists delivery of possession to the decree-holder, the dispute
and his claim has to be decided after the 1976 Amendment Under Rule 97
read with Rule 101 and prior to the amendment Under Rule 97 read with Rule
99. However, under the old law, in case order is passed against the person
resisting possession Under Rule 97 read with Rule 99 then by virtue of Rule
103, as it then was, he was to file a suit to establish his right. But now after
the amendment one need not file suit even in such cases as all disputes are
to be settled by the executing court itself finally Under Rule 101.
16. In Noorduddin v. Dr. K.L. Anand, MANU/SC/0533/1995 : (1995) 1 SCC
242 it is held: (SCC p. 249, para 8)
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
Code of Civil Procedure 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 persons claiming right, title and interest in the immovable
property in execution.
23. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., MANU/SC/0252/1998 :
(1998) 3 SCC 723, a Three-Judge Bench had occasion to consider provisions of Order
XXI Rules 97, 101, 102 and 103 as amended by Code of Civil Procedure
(Amendment) Act, 1976. In paragraph Nos. 9 and 10, following was laid down:
9. At the outset, we may observe that it is difficult to agree with the High
Court 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

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 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 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.
24. To the same effect is the judgment of this Court in Ghasi Ram and Ors. v.
Chait Ram Saini and Ors., MANU/SC/0433/1998 : (1998) 6 SCC 200. Another
judgment, which need to be noticed is judgment of this Court in Ashan Devi and
Anr. v. Phulwasi Devi and Ors., MANU/SC/0949/2003 : (2003) 12 SCC 219. In the
above case, a decree of specific performance of contract was obtained on
08.11.1990. Decree was put in execution by the decree-holder, in pursuance of which
execution, possession was also obtained on 05.09.1996 through Court. A petition was
filed Under Order XXI Rule 99 before the Executing Court claiming that the objector
being not party to the suit for specific performance, they cannot be dispossessed in
execution of the decree. It was contended by the objector that they have purchased
the property by sale deed in the year 1985 and decree in the absence of the Objectors
who were necessary parties to the suit, is not executable. The application was
allowed by the Executing Court and objectors were put in possession, against which
order, an appeal was filed in the High Court. High Court had allowed the appeal
holding that the Objectors were not actually and physically dispossessed, the
application Under Order XXI Rule 99 of the Code was not maintainable and the
executing court could not have decided the competing claims of the parties to the
property in the course of execution proceedings. The matter was taken to this Court,
where this Court after noticing the relevant provisions have interpreted the provisions
of Order XXI Rules 99 and 101. This Court held that the purpose of amendment
brought by Code of Civil Procedure (Amendment) Act, 1976 was to enable the third
parties to seek adjudication of their rights in execution proceedings with a view to
curtail the prolongation of litigation. Following was laid down in paragraph Nos. 25,
28, 29 and 30:
25. In interpreting the provisions of Order 21 Rule 97 of the Code and the
other provisions in the said order, the aims and objects for introducing

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 amendment to the Code cannot be lost sight of. Under the unamended Code,
third parties adversely affected or dispossessed from the property involved,
were required to file independent suits for claiming title and possession. The
legislature purposely amended provisions in Order 21 to enable the third
parties to seek adjudication of their rights in execution proceedings
themselves with a view to curtail the prolongation of litigation and arrest
delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram,
MANU/SC/0154/1984 : (1985) 1 SCC 61.
28. In view of the discussion aforesaid, in our opinion, the executing court
was well within law in recording evidence and adjudicating the claim of the
third party. The executing court rightly rejected the preliminary objection to
the maintainability of application of the objectors Under Order 21 Rule 99 of
the Code and decided the other issues on merits of their claims arising
between the decree-holder and the objectors.
29. The High Court in appeal mainly concentrated its decision on the
question of tenability of application Under Order 21 Rule 99 at the instance
of the objectors and having rejected the said application did not in detail deal
with other issues on merits arising between the decree-holder and the
objectors. The issues on merits which were liable to be re-examined by the
appellate court, as the first court of facts and law, were:
(1) Whether the decree-holder at the time of institution of suit had
knowledge of the execution of the registered sale deeds in favour of
the objectors and yet they deliberately avoided to make them as
parties to the suit and thus obtained in collusion with the vendors an
ex parte decree of specific performance of the contract.
OR
(2) Whether the objectors had full knowledge of existence of prior
agreement of sale executed by the vendors in favour of the decree-
holder and despite such knowledge they purchased the suit property
to frustrate the agreement existing in favour of the decree-holder.
30. As the appellate court, having rejected the objectors' application Under
Order 21 Rule 99, has not in greater detail gone into the contested issues on
merits, it is necessary to set aside the impugned order of the High Court and
remand the case to it for decision of the appeal afresh in accordance with
law.
25. The above judgment of this Court clearly lays down that all issues between the
parties in application Under Order XXI Rules 99, 100 and 101 need to be examined by
Executing court and decided.
26. The use of the words "all questions (including the 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 " has to be given meaning and full play. It is
also relevant to note that prior to Amendment, 1976, Under Rule 103, the aggrieved
party could have brought a suit for determination of rights between them but by
Amendment, 1976, Rule 103 has been amended to the following effect:
103. Orders to be treated as decrees.--Where any application has been

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 adjudicated upon Under Rule 98 or Rule 100, the order made thereon shall
have the same force and be subject to the same conditions as to an appeal or
otherwise as if it were a decree.
27. The purpose of amendment Under Rule 103 is also that any adjudication made
Under Rule 101 shall have same force and be subject to the same conditions as to an
appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to
get all issues relating to right, title or interest in the property to be determined. When
the Respondent No. 1 filed his application claiming to be put back into possession, it
was obliged to establish its right, title or interest in the property without which his
application could not have been allowed. The Executing Court has considered the
application of Respondent No. 1 in right perspective and has clearly held that
Respondent No. 1 failed to prove his title by adverse possession, hence application
deserves to be rejected.
28. High Court committed error in observing that in application proceedings Under
Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without
determination of right, title or interest, the application could not have been allowed.
We having already extracted the observations of the High Court, where it clearly held
that the title in respect of the property by way of adverse possession need not be
gone into in the appeal before it. The above observation of the High Court was
erroneous. In the proceeding Under Order XXI Rules 99, 100 and 101, right, title or
interest has to be determined and without establishing right, title or interest, the
Respondent No. 1 cannot claim that he should be put back into possession. We do
not accept the submission of the learned Counsel for the Respondent that on mere
fact that Respondent No. 1 was in possession of the premises prior to being
dispossessed, they should be put back into possession. For putting back into
possession, the Respondent No. 1 was obliged to establish his title to the property by
adverse possession, without which, he could not have asked the Court to put him
back into possession. The High Court clearly erred in allowing the appeal and the
Executing Court has rightly rejected the application filed by Respondent No. 1. We
may further notice that suit No. 211 of 1990 filed by Respondent No. 1 seeking
declaration of title to the property by adverse possession has been subsequently
dismissed by decree on 16.03.2009 and no steps have been taken for restoration of
the suit.
29. We do not find any error in the order passed by the Executing Court and the High
Court committed error in allowing the appeal, directing the Respondent No. 1 to be
put back into possession. In view of the foregoing discussions, we allow this appeal
and set aside the judgment of the High Court dated 15.12.2009 and restore the order
of the Executing Court dated 10.08.2004. Parties shall bear their own costs.
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