2023 LiveLaw (SC) 712 : 2023 INSC 764

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
B.V. NAGARATHNA; J., PRASHANT KUMAR MISHRA; J.
AUGUST 24, 2023
CIVIL APPEAL NOs. 5409 - 5410OF 2023 (Arising out of SLP(C) Nos. 12601 - 12602 of 2017)
SMT. VED KUMARI (DEAD THROUGH HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL
versus
MUNICIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER
Code of Civil Procedure, 1908; Order XXI Rules 97 to 101 - Executing Court cannot
dismiss an execution petition against the judgment-debtor by treating the decree
for possession as inexecutable, merely on the basis that the decree-holder has lost
possession of the immovable property to a third party/encroacher. It was the duty
of the Executing Court to issue warrant of possession for effecting physical delivery
of the suit land to the decree-holder. Further, if any resistance is offered by any
stranger/ encroacher to the decree, the same has to be adjudicated upon by the
Executing Court in accordance with Rules 97 to 101 of Order XXI CPC. Unless this
procedure is adopted, the Executing Court could not have closed the execution
proceedings by observing that the decree is inexecutable. (Para 15)
(Arising out of the impugned final judgment and order dated 07-04-2016 in CRP No. 152/2012 04-11-2016
in RP No. 487/2016 passed by the High Court of Delhi at New Delhi)
For Parties(s) Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Senthil Jagadeesan, AOR Mr. Adit S Pujari, Adv.
Ms. Maitreya Subramaniam, Adv. Ms. Mantika Vohra, Adv. Mr. Praveen Swarup, AOR Mr. Praveen
Swarup, Adv. Mr. Devesh Maurya, Adv. Ms. Payal Swarup, Adv. Mr. Chander Shekher Malhotra, Adv. Mr.
Vivek Verma, Adv. Mr. Hari Sahteshwar, Adv.
JUDGMENT
PRASHANT KUMAR MISHRA, J.
Leave granted.
2. These appeals arise from the judgment and orders dated 07.04.2016 and
04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487 of 2016 respectively,
whereby the High Court has affirmed the order of the Executing Court dated 11.09.2012
holding that the decree for possession of immoveable property is not executable against
the judgment-debtor.
3. The factual matrix of the case is that the appellant (since deceased represented
through Lrs.) who is the original plaintiff, leased out land measuring 400 sq. yds. out of
Khasra No. 4/39/1 situated at village Khureji Khas, Abani Radheypuri, Ilaqa Shahdara,
Delhi (hereinafter referred to as ‘the Suit Land’) within the limit of Municipal Corporation
Delhi vide lease deed dated 06.01.1973 to the respondent-Corporation (Original
defendant) for a period of 10 years initially @ monthly rent of Rs. 30/-, which was
renewable with the consent of both the parties, however the lease was not renewed
subsequently after expiry on 06.01.1983. Thereafter, the appellant served a notice upon
the respondent-Corporation dated 02.12.1987 vide which the respondent-Corporation was
called upon to hand over the peaceful vacant possession of the Suit Land on or before
06.01.1988. The respondent-Corporation did not turn to the demand of the appellant.
3.1 The appellant/plaintiff filed Suit No. 205 of 1988 for recovery of possession in
respect of the Suit Land against respondent-Corporation/defendant before the Sub-Judge,

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Ist Class, Delhi, which was decreed for possession in favour of appellant/plaintiff and
against the respondent-Corporation/defendant on 23.03.1990.
3.2 Thereafter, the appellant filed execution proceedings bearing Execution Case No.
7 of 1991 to get the decree for possession executed against the judgment-debtor i.e.
respondent-Corporation. On 03.12.1993, the appellant/decree-holder obtained warrants
for delivery of possession from the Executing Court against the respondent-Corporation.
When the appellant/decree-holder along with the police force went on spot to execute the
warrants they were resisted and because of such high-handed behaviour including, inter
alia, the threats of the employees/agents of the respondent-Corporation to intimidate the
appellant, warrants for delivery of possession could not be executed.
3.3 At this stage, the respondent-Corporation moved an application before the
Executing Court to stay the operation of the warrants for delivery of possession earlier
issued. The Executing Court stayed the execution proceedings until 15.04.1994, while
taking into consideration that the demolition of the school building upon the decretal land
would affect the career of around 400 students.
3.4 The respondent-Corporation filed objections on the ground that the spot at which
the school is built admeasures 1700 square yards and the disputed decretal land cannot
be identified. The said objections were rejected by the Executing Court vide order dated
27.05.1994.
3.5 On 19.08.1994, the appellant filed an application for issuance of fresh warrants of
possession and the respondent-Corporation on the same day also moved an application
to stay the execution proceedings on the ground that the respondent-Corporation had
undertaken land acquisition proceedings of the decretal land. By a subsequent application
dated 01.03.1996 the respondent-Corporation stated that it had deposited a sum of Rs.
1,60,000/- with the Land Acquisition Commissioner, Delhi.
3.6 The Executing Court vide order dated 19.03.1999 dismissed the said applications
of the respondent-Corporation on the ground that the respondent-Corporation had not
made any serious effort in a span of eight years to acquire the decretal land and that the
acquisition of the decretal land can take place even after the same is handed over to the
appellant.
3.7 On account of the refusal of the respondent-Corporation to hand over possession
of the decretal land to the appellant, the appellant filed a Contempt Petition before the
High Court of Delhi against the respondent-Corporation which was registered as CC No.
126 of 1999, alleging non-compliance of the order of the Trial Court. The Contempt Petition
was disposed of vide order dated 20.02.2003 with directions that it would be open to the
appellant to take recourse to such steps as may be permissible for the appellant under
the law for getting the encroachers evicted.
3.8 Upon disposal of the Contempt Petition, the appellant once again got issued
warrants for possession of decretal land. Pursuant to the directions of the Executing Court,
the respondent-Corporation submitted demarcation reports dated 13.04.2001 and
24.07.2002 in respect of the suit land and raised the issue of acquisition of the said
property.
3.9 The Executing Court vide its order dated 11.09.2012 while taking into consideration
the demarcation reports dismissed the Execution Petition filed by the appellant on the
ground that the encroacher(s) upon the land in question were not ‘party to the suit’ and,
therefore, the decree could not be executed.

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3.10 Being aggrieved by the dismissal of the execution petition, the appellant preferred
a Revision Petition before the High Court of Delhi which was dismissed vide order dated
07.04.2016 while holding that the appellant has not, despite specific directions, taken any
steps to get the encroacher(s) identified.
3.11 The appellant being dissatisfied sought review of the judgment and order dated
07.04.2016 by filing review petition, which saw the same fate as the revision petition.
Hence these appeals by way of petitions for special leave to appeal.
4. We have heard Mr. Neeraj Kishan Kaul and Mr. Gopal Sankaranarayanan, learned
senior counsel for the appellant and Mr. Praveen Swarup, learned counsel for respondent
and perused the material placed on record.
5. Learned senior counsel for the appellant/decree-holder strenuously contended that
since admittedly the respondent-Corporation executed a lease deed and remained in
possession of the suit land as a tenant, which fact is established in favour of the
appellant/decree-holder in the suit as also in the execution proceedings, at various stages,
it is wholly inappropriate for the respondent-Corporation to contend that it is not in
possession of the suit land. It is further contended that while resisting delivery the
judgment-debtor clearly stated that demolition of the school building for effecting delivery
of possession would affect around 400 students and that it is taking steps to acquire the
suit land and this fact would itself demonstrate that the judgment-debtor is in possession
of the suit land. Even if the suit land is subsequently encroached by a third party, the
judgment-debtor cannot escape the liability of satisfying the decree.
It is next contended that any encroachment on the suit land when it was possessed
by the judgment-debtor would not nullify the execution proceedings and it is the duty of
the respondent-Corporation, as a local authority, to identify the encroacher, if any, so that
effective steps are taken by the Executing Court to deliver physical vacant possession to
the decree-holder.
Learned senior counsel would further contend that Order XXI of the Code of Civil
Procedure, 1908 (CPC) is a complete code for resolving all disputes, including against
strangers to the decree. Therefore, the execution proceedings could not have been
dropped by the Executing Court.
6. Per contra, learned counsel for the respondent-Corporation would submit that the
suit land is not under the possession of the respondent-Corporation rather it is in
possession of the encroachers who should have been identified by the decree-holder. It
is the specific case of the respondent-Corporation that as per the demarcation report dated
24.07.2002 the land has been identified and the suit land is found situated in the North,
36’ away/outside the boundary wall of the school, where some houses have been
constructed by unknown persons and the same is not in possession of the respondent-
Corporation and for this reason, the acquisition proceedings were dropped.
Supporting the impugned order, it is lastly contended, by way of an alternative
submission in para 9 of the written submissions, that though the Executing Court has
powers of execution under Order XXI Rules 97 to 101 of the CPC, it can, if permissible in
law, take action against the persons who are in possession of the disputed land, or, the
decree-holder may file a fresh suit against the encroachers.
DISCUSSION
7. In the judgment and decree dated 23.03.1990, the Trial Court categorically held that
the respondent-Corporation is the lessee and since the lease has already been
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determined upon expiry of lease period of 10 years, the respondent-
Corporation/defendant is bound to deliver physical vacant possession of the suit land and
also to pay the rent and that the appellant/plaintiff is entitled to a decree of ejectment and
delivery of vacant possession by the respondent-Corporation/defendant in respect of the
suit land as shown red in the site plan in Exhibit P4. The respondent-
Corporation/defendant was also directed to hand over the possession of the suit land after
removing the construction. This decree has attained finality.
8. In the course of execution, it was the stand of the respondent-Corporation, at
various stages, that grave prejudice would be caused to the students studying in the
school building constructed on the suit land, therefore, instead of delivering the
possession, it is in the process of acquiring the decretal land, which stand it continued to
take from 1994 till March, 1999, at which point the respondent-Corporation’s application
not to execute warrant of possession was dismissed by the Executing Court on the ground
that it has not made any serious effort to acquire the decretal land for about eight years.
9. Surprisingly, for the first time, on 18.09.2009, the respondent-Corporation informed
the Executing Court that the suit land is not in its possession and the same has been
encroached upon. On this information of the Judgment/debtor, the Executing Court
directed it to disclose whether the land, which the respondent-Corporation is stating to
have been encroached upon, is the suit land and if so, then, to disclose as to when the
suit land was vacated by the respondent-Corporation. Yet again, on 16.04.2010, the
Executing Court observed that till date the respondent-Corporation has not disclosed the
fact that as to with whom the suit land presently lies and the Deputy Commissioner of the
respondent-Corporation was directed to reply to this query by way of filing an affidavit.
When the affidavit was filed, the Executing Court observed that the query has not been
responded to properly. The Executing Court in its order dated 21.05.2010 noted the stand
of the respondent-Corporation, at the inception of the suit, that the suit land is in its
possession but that in execution proceedings, the respondent-Corporation has taken
altogether a different stand that the school is running on a different parcel of land. The
Executing Court further expressed doubt as to how, at that stage, the respondent-
Corporation could take altogether a different stand and observed that it is liable to disclose
as to how the possession of the suit land passed from it to a third party.
10. It is also important to notice that throughout the course of the execution
proceedings, no resistance was offered by any purported stranger/encroacher to the
decree. In the absence of such resistance, the Executing Court had no occasion to invoke
Order XXI, Rules 97 to 101, at the instance of the decreeholder or otherwise. Unless, this
procedure is adopted, the Executing Court could not have closed the execution
proceedings by observing that the decree is inexecutable.
11. In “Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr.” (1997) 3 SCC
694, this Court has observed that Order XXI of the CPC lays down a complete code for
resolving all disputes pertaining to execution of the decree for possession obtained by a
decree-holder and whose attempts at executing the said decree meet with rough weather.
Referring to its earlier judgment in the matter of “Bhanwar Lal vs. Satyanarain” (1995)
1 SCC 6 this Court concluded thus:
‘11. In view of the aforesaid settled legal position, therefore, and in the light of the statutory
scheme discussed by us earlier it must be held that Respondent 1 decree-holder's application
dated 6-5-1991 praying for issuance of warrant for delivery of possession with the aid of armed
force, was in substance for removal of obstruction offered by the appellant and others under Order
21, Rule 97 CPC and had to be adjudicated upon as enjoined by Order 21, Rule 97, sub-rule (2)

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read with Order 21, Rule 101 and Order 21, Rule 98. In this connection the Court had also to
follow the procedure laid down by Order 21, Rule 105 which enjoins the executing court to which
an application is made under any of the foregoing rules of the order to fix a date of hearing of the
application. As the executing court refused to adjudicate upon the obstruction and the claim of the
appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction
vested in it by law. The High Court in revision also committed the same error by taking the view
that such an application was not maintainable. It is of course true as submitted by learned counsel
for the decree-holder that in para 4 of the judgment under appeal the High Court has noted that
there was some discrepancy about the khasra number. But these are passing observations. On
the contrary in the subsequent paragraphs of the judgment the High Court has clearly held that
such an application by the objector was not maintainable and his only remedy was to move an
application under Order 21, Rule 99 after handing over possession and consideration of objection
to delivery of possession by a stranger to the decree at any earlier stage was premature. It must,
therefore, be held that neither the executing court nor the High Court in revision had considered
the objection of the appellant against execution on merits. Consequently the impugned judgment
of the High Court as well as the order of the executing court in Civil Execution Case No. 25 of
1990 dated 15-2-1996 are quashed and set aside and proceedings are remanded to the Court of
Munsif II, Munger to re-decide the application of Respondent 1 decree-holder dated 6-5-1991 by
treating it to be one under Order 21, Rule 97 for removal of obstruction of the appellant and after
hearing the decreeholder as well as the appellant to adjudicate the claim of the appellant and to
pass appropriate orders under Order 21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98
CPC as indicated in the earlier part of this judgment.’
12. Similarly, in “Shreenath & Anr. Vs. Rajesh & Ors.” (1998) 4 SCC 543 this Court
observed thus:
‘10. Under sub-clause (1) Order 21 Rule 35, the executing court delivers actual physical
possession of the disputed property to the decree-holder and, if necessary, by removing any
person bound by the decree who refuses to vacate the said property. The significant words are
by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property
when in occupancy of a tenant or other person not bound by the decree, the court delivers
possession by fixing a copy of the warrant in some conspicuous place of the said property and
proclaiming to the occupant by beat of drum or other customary mode at some convenient place,
the substance of the decree in regard to the property. In other words, the decree-holder gets the
symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession
of immovable property when made in execution of a decree by “any person”. This may be either
by the person bound by the decree, claiming title through the judgment-debtor or claiming
independent right of his own including a tenant not party to the suit or even a stranger. A decree-
holder, in such a case, may make an application to the executing court complaining such
resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution
empowers the executing courts when such claim is made to proceed to adjudicate upon the
applicant's claim in accordance with the provisions contained hereinafter. This refers to Order 21
Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in
the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined
by the court and not by a separate suit. By the amendment, one has not to go for a fresh suit but
all matter pertaining to that property even if obstruction by a stranger is adjudicated and finally
given even in the executing proceedings. We find the expression “any person” under sub-clause
(1) is used deliberately for widening the scope of power so that the executing court could
adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of
the words “any person” it includes all persons resisting the delivery of possession, claiming right
in the property, even those not bound by the decree, including tenants or other persons claiming
right on their own, including a stranger.’
13. In “Sameer Singh & Anr. Vs. Abdul Rab & Ors.” (2015) 1 SCC 379, this Court
again observed that the Executing Court has the authority to adjudicate all the questions

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pertaining to right, title or interest in the property arising between the parties including the
claim of a stranger who apprehends dispossession from the immovable property. This is
provided to avoid multiplicity of proceedings and if a court declines to adjudicate by stating
that it lacks jurisdiction, that by itself would occasion failure on part of the Executing Court
to exercise the jurisdiction vested in it.
14. In most recent judgment in “Jini Dhanrajgir & Anr. Vs. Shibu Mathew & Anr.”
(2023) SCC Online SC 643, the legal position has been reiterated that Rules 97 to 103 of
Order XXI of the CPC provide the sole remedy both to the parties to a suit as well as to a
stranger to the decree put to execution.
15. In view of the settled legal position, as noted (supra), it was the duty of the Executing
Court to issue warrant of possession for effecting physical delivery of the suit land to the
decree-holder in terms of suit schedule property and if any resistance is offered by any
stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101
of Order XXI of the CPC. The Executing Court could not have dismissed the execution
petition by treating the decree to be inexecutable merely on the basis that the decree-
holder has lost possession to a third party/encroacher. If this is allowed to happen, every
judgment-debtor who is in possession of the immoveable property till the decree is passed,
shall hand over possession to a third party to defeat the decree-holder’s right and
entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree
for immovable property can be executed.
16. In the result, the appeals succeed and are allowed. Accordingly, the judgment and
orders dated 07.04.2016 and 04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No.
487 of 2016 respectively by the High Court of Delhi and the order of the Executing Court
dated 11.09.2012 are set aside and the Executing Court is directed to execute the decree
by effecting delivery of physical vacant possession to the appellant/decreeholder in
accordance with the provisions contained in Order XXI CPC. The parties shall bear their
own costs.

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