Remedies - Order Xxi Rule 97 - 106: Army Institute of Law, Mohali Code of Civil Procedure, 1908
Remedies - Order Xxi Rule 97 - 106: Army Institute of Law, Mohali Code of Civil Procedure, 1908
Submitted by:
TANVI GARG
2068
BALLB 5th Year (9th Semester)
CODE OF CIVIL PROCEDURE, 1908
ACKNOWLEDGEMENT
I, Tanvi Garg, student of BA LLB 5th Year (9th Sem.) Roll No. 2068, hereby express my
gratitude to all those who helped me making this Project.
I, especially thank Dr. Inderpreet Kaur, for giving such a good topic- “REMEDIES – ORDER
XXI RULE 97 - 106” for my presentation over which good amount of research can be done. I
also thank Principal ma’am for her never- ending support and guidance.
I have taken a huge support from various internet sources to complete this project.
Thank You,
Yours Sincerely,
Tanvi Garg (2068),
BA LLB 5th Year.
CODE OF CIVIL PROCEDURE, 1908
CONTENTS
INTRODUCTION ..................................................................................................................... 1
DISTINCTION BETWEEN RULE 97 AND RULE 99 OF ORDER XXI OF THE CODE ..............................8
APPLICABILITY OF RULE 101 IN CASE OF OBJECTION UNDER RULE 99 OF THE CPC ...................8
ORDER XXI RULE 102 : RULES NOT APPLICABLE TO TRANSFEREE PENDENT LITE .....................8
ORDER XXI RULE 104 : ORDER UNDER RULE 101 OR RULE 103 TO BE SUBJECT TO THE RESULT
OR PENDING SUIT ...........................................................................................................................................9
ORDER XXI RULE 106 OF CPC SETTING ASIDE ORDER PASSED EX-PARTE, ETC. .........................10
LIMITATION .......................................................................................................................... 11
CONCLUSION ........................................................................................................................ 12
CODE OF CIVIL PROCEDURE, 1908
INTRODUCTION
Courts having decreed a remedy, it must follow up to ensure that it is being adhere to. Execution
is the most important aspect of civil justice. Success or failure of the system of civil justice
depends on the rate of success in executing the decrees of civil courts. The term “execution”
has not been defined in the Code.
In its widest sense, the expression “execution” signifies the enforcement or giving effect to a
judgment or order of a Court of justice. In other words, execution is the enforcement of decrees
and orders by the process of the Court, so as to enable the decree-holder to realise the fruits of
the decree. The execution is complete when the judgment-creditor or decree-holder gets money
or other thing awarded to him by the judgment, decree or order. 1
Legislature has drafted and introduced exhaustive and exemplary provisions of execution in
the Code of Civil Procedure. There are as many as 106 rules in Order XXI which deals with
execution and from Sections 36 to 74 (both inclusive) embodied in the Code of Civil Procedure.
There are many ways through which a decree can be executed. One such way is by the delivery
of property. Section 51(1) of the Civil Procedure Code says that the Court has the power to
order execution of the decree, on the application of the decree-holder, by delivery of any
property specifically decreed. Provisions in Order XXI provide for delivery of property under
CPC.
It is said that justice must not only be done but it must appear to have been done. Therefore,
granting a decree is not enough, but the Court has to make sure that such a decree should be
properly enforced. Keeping in mind these words, when a Court asks for delivery of a property,
it must be enforced properly and the decree-holder has the right to move to the Court where
the property has not been delivered to him.
The execution of decrees for eviction and the delivery of vacant possession is important aspect
of civil litigation, most particularly in the landlord-tenant and property disputes. The process
involves ensuring that the decree-holder (D.Hr) can obtain vacant possession of the property,
while the judgment debtor (J.Dr) and any third parties have the opportunity to raise objections.
1
Overseas Aviation Engg. (G.B.) Ltd. In re, (1962) 3 WLR 594).
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CODE OF CIVIL PROCEDURE, 1908
The main hurdle to execute the decree passed by the civil court is the objection raised by the
judgment debtors, strangers or the persons claiming under or through the judgment debtors,
during the execution of proceeding. Generally, the objectors will raise their objections under
Section 47 and Order XXI Rule 97, 99, 101 of the CPC. Decree-holder can seek removal of
obstruction under Rule 35(3) if it is caused by a person bound by the decree. He has to move
Court under Rule 97 for removal of obstruction by a third party.
Section 47 of the Civil Procedure Code states as “Question to be determined by the court
executing the decree. In this Section, earlier, there were three sub clauses, but in terms of
amendment made in the Code of Civil Procedure by virtue of Civil Code Amendment Act
No.104 of 1976 w.e.f. 01/02/1977, sub- Section 2 has been deleted and now there are two sub
sections and two explanations.
1) All questions arising between the parties to the suit in which decree was passed, or their
representatives and relating to execution, discharge or satisfaction of the decree shall be
determined by the court executing the decree and by a separate suit.
Explanation I :- As per this Section, parties to the suit means that the plaintiff whose
suit is dismissed and the defendant against whom the suit is dismissed.
Explanation II :-
(a) For the purpose of this Section, a purchaser of decree shall be the deemed party to
the suit in which the decree is passed.
(b) All questions relating to the delivery of possession of such property to such
purchaser or his representative shall be deemed to be questions relating to the execution,
discharge or satisfaction of the decree within the meaning of this section.
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Where the Court is satisfied that the holder of a decree for the possession of immovable
property or that the purchaser of immovable property sold in execution of a decree has been
resisted or obstructed in obtaining possession of the property by the judgment-debtor or some
person on his behalf and that such resistance or obstruction was without any just cause, the
Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such
other person to be detained in the civil prison for a term which may extend to thirty days and
may further direct that the decree-holder or purchaser be put into possession of the 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.]
Under this Rule, the decree holder as well as any person may complain to the court about the
resistance and obstruction in obtaining possession. When a person unreasonably and in the
instance of judgment-debtor resisted the delivery of possession, in such case the decree-holder
may complain to the court executing the decree and on adjudication of the matter complained
the court, and the court executing the decree order for removal of the obstruction or may pass
any such order as deem think fit and proper.
In the case of Brahmadeo Choudhary Vs Rishikesh Prasad Jaiswal, it has been held that
the objection of the objector can be considered by the executing court against the possession
warrant and the court can stay the execution proceeding till the objection petition is decided by
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CODE OF CIVIL PROCEDURE, 1908
the executing court. In this case also the question came up before the court that whether the
objector can claim adjudication of his right until he is actually dispossessed. The Supreme
Court held that the claim could be adjudicated prior to actually dispossessed under Rule 97 of
Order XXI CPC.2
In the case of Tanzeem -E- Sufia Vs. Bibi Haliman, it has been held that even if the
objector filed a suit for declaration of right, title of part premises for which decree sought to be
executed, the executing court shall have power to decide the objection under Order XXI Rule
97 CPC.3
Even a stranger can offer resistance claiming independent title as held by Hon’ble High Court
in Padigi Padmavath Vs. Kamala Nagarjau.4
A third party to a suit for partition, who has no interest, who has no interest in the property
covered in the suit, cannot resist in execution of decree on the basis of final decree is not in
consonance with the plaint prepared by the commissioner appointed during the final decree
proceeding as held in M.Padma Vs. M.Seshagiri Rao.5
Where a holder of a decree for possession of immovable property or the purchaser of any
property sold in execution of decree is resisted or obstructed by any person obtaining
possession of the property, he may make an application to the court complaining of such
resistance or obstruction.
Order XXI Rule 97 CPC clearly provides that where execution of decree is resisted or
obstructed by any person the decree holder may make an application to the court complaining
of such resistance or obstruction. Where upon the court shall proceed to adjudicate upon the
application in accordance with the provisions contained in the code. Application by the
judgment debtor under Rule 97 C.P.C is not permissible.
Rule 97 (1) of Order XXI deals with the situation where the decree holder is resisted or
obstructed from obtaining the possession of the decree schedule property. A plain reading Rule
97 shows that it is only the decree holder or an auction purchaser of any such property who can
2
AIR 1997 SC 856.
3
AIR 2002 SC 3083.
4
2004 (1) ALT 413.
5
2003 (4) ALT 683.
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CODE OF CIVIL PROCEDURE, 1908
make application in case of possession is resisted or obstructed and not by objector before his
dispossession.
It has widening the scope of power so as to enable to executing court to adjudicate the claim.
It includes all the persons resisting delivery of possession, claiming right in the property, even
those not bound by the decree, including tenants or any other persons claiming right on their
own, including a stranger.
Where any third party wants to raise an objection to the effect that decree cannot be executed
against him, he is entitled to file an application under Order XXI Rule 97 CPC which would
have to be decided on its own merits by the executing court in accordance with law.
The following persons can resist or obstruct the execution of decree of possession:
1. It is comprehensive enough apart from judgment debtor any person claiming through him.
2. Persons claiming the title independently and therefore they are strangers to the decree can
also resist for possession and mere possession would not be sufficient.
3. A tenant even prior to the date of the decree in title suit is entitled to resist. Theapplication
filed by the tenant (not a party to the eviction proceedings) after filing the execution petition
is maintainable under Order XXI Rule 97 C.P.C even before his possession.
4. A lessee of judgment debtor is also included with the meaning of Section 47 but a sub tenant
is not entitled to obstruct but, where he is in possession of the property for long 30 Years to
the knowledge and consent of the predecessor of the decree holder can the execution. Plea
of adverse possession if proved is a substantial ground for raising under Rule 97 C.P.C.
A Judgment Debtor or his persons cannot resist or obstruct of delivery of possession. The
petitioner is claiming his possession through the judgment debtor and since it has not acquired
any right of suit premises independent of right of judgment debtor and thus obstruction which
was made by the petitioner in execution of the said decree
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CODE OF CIVIL PROCEDURE, 1908
“Objection by the wife of deceased tenant can be impleaded in the eviction petition and can
proceed with the proceedings as held in Auto Cade Vs. Ranjita Roy.6
RESISTANCE OR OBSTRUCTION:
Once the resistance is offered by so called stranger to the decree which comes to be noted by a
executing court as well as by a decree holder, the option available to the DHR against such an
obstructionists is only remedy under Rule 97 CPC and he cannot get over such obstruction and
insist on the re issuance of warrant of possession underRule 97 CP.C, the decree holder cannot
by pass Rule 97 C.P.C and insist upon re issuance of warrant of possession under Rule 35
C.P.C with police aid as laid down in Mahinder Singh Vs. Pratima Kumari Mohapatra.7
(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.
(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
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CODE OF CIVIL PROCEDURE, 1908
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.
This rule applies where the person other than the judgment-debtor is dispossessed by the
decree-holder or the purchaser, he can claim for his dispossession and establish his independent
right, title.8
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.
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 not withstanding anything to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions.
In the case of Vol Builders pvt. Ltd. & Anr. Vs. Janab Salim Saheb & Anr, it has been
held that where two separate suits were filed – one by objector for declaration of right, title and
interest over the suit property on the basis of agreement for sale. Another suit was filed for
injunction in respect of suit property - Suit on the basis of Agreement was dismissed – Appeal
against is sub-Judice - knowing about the pendency of the two suits, court below cannot
8
Brahmadeo Choudhary Vs Rishikesh Jaiswal, AIR 1997 SC 856.
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CODE OF CIVIL PROCEDURE, 1908
proceed to embark upon a separate inquiry on it own on the issue raised (Order XXI Rule 97,
98, 101, 103 and 104 explained).9
Also in the case of Sushil kumar sureka Vs. Santosh Kumar Singh, it has been held that the
objection under Order XXI Rule 98, 99, 100 and 101 - objection were repeatedly rejected up
to High Court - Suit filed by the father of the objector is pending - A case of gross abuse of
process of law - order impugned set aside with a nominal cost of ₹ 2500/-.10
In the case of N.S.S. Sharma Vs. M/S Goldstone Exports (p) Ltd. And others the Hon’ble
Supreme Court been held that Resistance or obstruction to possession made in execution – All
relevant issues arising in the matter on an application under Order XXI Rule 97 or Rule 99
shall be determined by the executing court and not by separate suit. 11
When once resistance was offered by the objector, the proper procedure which was required to
be followed by the decree-holder, was the one contemplated under Order XXI Rule 97 of CPC.
Where as if the objector is removed by Nazir, the remedy of objector is to invoke Rule 99 CPC
and seek for restoration of possession. After dispossession the remedy of objector is under Rule
99 of the code.
A third party to the decree who offers resistance would thus fall within the ambit of Rule 101
of the Code and if an adjudication is warranted as a consequence of the resistance or obstruction
made by him to the execution of the decree as laid down by the Hon’ble Supreme Court in
Silver line Forum Ltd Vs. Rajiv Trust.12
Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree
for the possession of immovable property by a person to whom the judgment-debtor has
9
2009 (1) JCR 318 (Jhr).
10
2009 (3) JCR 740 (Jhr).
11
AIR 2002 SC 251.
12
AIR 1995 SC 1754.
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CODE OF CIVIL PROCEDURE, 1908
transferred the property after the institution of the suit in which the decree was passed or to the
dispossession of any such person.
Explanation : In this rule, "transfer" includes a transfer by operation of law. This rule is
recognizes the doctrine of lis-pendens as embodied in Section 52 of the Transfer of Property
Act, 1882.
In the case of Usha Sinha Vs. Dina Ram and others, the Hon'ble apex court elaborately
discussed this rule - Object and scope of Order 21 Rule 102 restated- It based on justice, equity
and good conscience – A transferee from a judgment-debtor is presumed to be aware of the
proceeding before a court of law- Held if, unfair inequitable or undeserved protection is
afforded to a transferee pendente-lite, a decree-holder will never be able to realise the fruits of
the decree.13
Where any application has been adjudicated upon under Rule 98 or Rule 100, the other 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.
In the case of Jogindera Kaur @ Jogenderkaur Vs. Kali Prasad @ Kalu Prasad, it has
been held that the order passed under Rule 97, 99, 98 and 100 and 101 - Adjudication and
determination under - to be treated as decree under Order 21 Rule 103 - as such first appeal
and also second appeal shall lie. 14
Therefore, it is clear that when an order is being passed after adjudication of the claim of third
parties filed under Order XXI Rule 97, 99 that order is appeal-able. But when the court in
threshold rejected the application, in such case the said order is not a decree within the meaning
of Rule 98 and 100 of Order XXI CPC as such no appeal shall lie.
ORDER XXI RULE 104 : ORDER UNDER RULE 101 OR RULE 103 TO BE SUBJECT
TO THE RESULT OR PENDING SUIT
Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may
be pending on the date of commencement of the proceeding in which such order is made, if in
13
(2007) 7 SCC 144.
14
2003 (2) JCR (Jhr) 149.
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such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to
establish a right which he claims to the present possession of the property.
(1) The Court, before whom an application under any of the foregoing rules of this Order is
pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the
applicant does not appear when the case is called on for hearing, the Court may make an order
that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by
the Court does not appear, the Court may hear the application exparte and pass such order as it
thinks fit.
Explanation: An application referred to in sub-rule (1) includes a claim or objection made under
rule 58.
Owing to the applicability of the provisions of Section 141 to execution proceedings, Order IX
does not apply to execution proceedings. The result has been that the courts have found it
difficult to decide the circumstances in which an application for execution can be dismissed for
non- appearance or if a court has dismissed an application for non appearance where the court
in the absence of any specific provisions relating to restoration of the execution proceeding,
can restore such application Rules 105 and 106 are inserted to deal in such cases.
ORDER XXI RULE 106 OF CPC SETTING ASIDE ORDER PASSED EX-PARTE,
ETC.
(2) rule 105 or the opposite party against whom an order is passed exparte under sub-rule
i. of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that
there was sufficient cause for his non- appearance when the application was called on for
hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks
fit, and shall appoint a day for the further hearing of the application.
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ii. No order shall be made on an application under sub-rule (1) unless notice of the
application has been served on the other party.
iii. An application under sub-rule (1) shall be made within thirty days from the date of the
order, or where, in the case of an ex parte order, the notice was not duly served, within thirty
days from the date when applicant had knowledge of the Order.
Rules 105 and 106 of Order XXI structured like Order IX of the Code of Civil Procedure. When
we conjointly read both the provisions, there are similarities in the provisions
In the case of Rahul S. Shah Vs. Jitendra Kumar Gandhi, the Hon’ble Supreme Court
made directions - the executing court must dispose of the Execution proceeding within six
months from the date of filing, which may be extended only by recording reasons in writing
for such delay - executing court may on satisfaction of the fact that it is not possible to execute
the decree without police assistance, direct the concerned police station to provide police
assistance to such officials who are working towards execution of decree - further, in case an
offence against the public servant while discharging his duties is brought to the knowledge of
the court, the same must be dealt with stringently in accordance with law – the Judicial
Academies must prepare manuals and ensure continuous training through appropriate
mediums to the court personal/staff executing the warrants, carrying out attachment and sale
and any other official duties for executing orders issued by Executing court. 15
LIMITATION
Each occasion of obstruction gives a cause of action for filing of an application to remove
obstruction. The period of limitation is 30 days is prescribed as per Article 167 of Limitation
Act from the date of resistance or obstruction.
The time spent in revision proceedings as ill advice of counsel after its rejection can be
condoned under Article 14 of Limitation Act 1963 as held by Hon’ble Apex Court in Ghasi
Ram vs. Chait Ram Saint.16
15
2021(2) JLJR (SC) 459.
16
1998 SC 2476.
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CODE OF CIVIL PROCEDURE, 1908
Section 5 of Limitation Act has no application to Order XXI, time cannot be extended for an
application under Rule 97 where as Section 5 of Limitation Act is applicable in preferring
appeal over the orders in Rule 97 CPC. Application u/s 5 of the Limitation Act, 1963 is not
maintainable in execution proceedings under Order 21 CPC. Section 151 CPC cannot be
invoked in such matter. Hardship or injustice cannot be a ground for extending period of
limitation. If the execution application was dismissed in default, application for its restoration
must be filed under Order 21, rule 106(3) CPC within 30 days from the date of order and not
there after from the date of knowledge.17
APPEAL OR REVISION
An order passed under Rule 97 is appealable as per Rule 103 of Code and is not amenable of
revision. Where a person has no right to obstruct cannot maintain appeal. Revision cannot be
entertained by the Hon’ble High Court as there is clear prohibition under Section 115 (2) of the
code when an appeal is provided under Rule 103.
CONCLUSION
It can be summarized that Order XXI of CPC is an independent Code in itself and It not only
provide procedure to be followed by the decree-holder to get the fruits of the decree, at the
same time it provides an opportunity to the judgment-debtor or the third party to raise the
grievances or objection in the execution proceeding itself. While disposing of execution
applications filed under Order 21 Rule 97 of the Act, if the executing court gets whiff off
dishonest tactics of Judgment debtor to delay the execution, the executing court must absolutely
firm in stopping such unhealthy practices and delay. Resorting to independent proceedings by
filing a separate suit is clearly prohibited. Therefore, objections If any, are raised by the
judgment-debtor or the third party in execution proceedings, the same are required to be
adjudicated by executing court following the same procedure as if it were a suit and the orders
by the executing court having the force of a decree.
17
Damodaran Pillai vs. South Indian Bank Ltd., 2005(34)AIC 83(SC).
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