Holding

The executing court must adjudicate objections of a stranger to a decree under Order XXI Rule 97 before delivering possession; the lower courts erred in directing the appellant to wait for Order XXI Rule 99.

Summary

The appellant, Brahmdeo Chaudhary, a stranger to a decree for eviction in favour of respondent No.1, resisted the execution of a warrant for possession against respondent No.2. The decree‑holder applied for a warrant with police assistance; the appellant filed an application before the executing court seeking a stay and adjudication of his objections. The executing court dismissed the application, directing the appellant to use Order XXI Rule 99 after dispossession, a view affirmed by the High Court. The Supreme Court held that when a stranger obstructs execution, the proper remedy is an application under Order XXI Rule 97, which must be heard before possession is handed over, and that refusing to do so violates natural justice. Consequently, the orders of the executing court and the High Court were set aside and the matter remanded to the Munsif court to decide the application under Rule 97. The appeal was allowed.

Issues considered

Whether a stranger to a decree who resists execution can seek relief under Order XXI Rule 97 before being dispossessed.
Whether the executing court may refuse to adjudicate the stranger's objections until after possession is handed over, directing him to file under Order XXI Rule 99.
Whether dismissal of the application without hearing violates principles of natural justice.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 101, s. Order XXI Rule 103, s. Order XXI Rule 105, s. Order XXI Rule 35, s. Order XXI Rule 97, s. Order XXI Rule 98, s. Order XXI Rule 99

Subjects

execution of decreeobstructionOrder XXI Rule 97stranger to decreenatural justicepossessionCivil Procedure Codeappeal

Judgment

BRAHMDEO CHAUDHARY A
v.
RISHIKESH PRASAD JAISWAL AND ANR.

JANUARY 22, 1997

[DR. AS. ANAND AND S.B.MAJMUDAR, JJ.] B

Civil Procedure Code, 1908-0rder XX!, Rules 35, 97, 98, 99, 101,
105--Stranger to the decree-Occupying decretal premises in his own
right-Resisting execution of the decree--Approaches the executing court to
adjudicate upon his right-Held: The executing court is bound to adjudicate c
upon the objections raised by the stranger under Order XX!, Rule 97-Can
not refuse to adjudicate upon the objections raised by the stranger before
handing over possession-Asking the stranger to move application under Order
XX!, Rule 99 after handing over possession will result in patent breach of
natural justice.
D
A decree was passesd in favour of respondent No.1, in a suit for
eviction filed by him against respondent No. 2. Respondent No.1 obtained
warrant for delivery of possession from the Executing court against
Respondent No. 2. When the bailiff went to the spot to execute the warrant,
he was resisted by the appellant. The decree-holder, re~pondent No. 1, E
made an application on the 6th May, 1991, praying for issuance of warrant

' for delivery of possession with the aid of armed force. E::e~uting Court

' directed execution of the warrant for possession by affording help of police
force to the decree-holder. At this stage the present appellant filed an
application before the Execution Court to stay the operation of the warrant
and to decide his objections. The executing court dismissed the application F
without adjudicating upon the objections of the appellant on merits. It
took the view that the remedy of the appellant was to move an application
under Order XXI, Rule 99 after he was dispossessed and as that stage had
not reached the request of the appellant to adjudicate his claim could not
be entertained. On appeal, the High Court confirmed this view. Hence the G
present appeal.

Allowing the appeal, this Court

HELD :1.1. When resistance is offered by a purported stranger, who
claims an independent right, title and interest in the decredal property, H
463
464 SUPREME COURT REPORTS [1997] 1 S.C.R.
A the Executing Court can no1t tell such obstructionist that he must first +
hand over possession and thien only his remedy is to move an application
under Or.der XXI, Rule 99 of the Code of Civil Procedure and pray for
restoration of possession. It is but natural that a stranger to the decree
claiming independent right on the decretal property can offer resistance
before getting actually dispossessed. [473-H; 474-A]
B
1.2 Order XXI, Rule 97 deals with a stage which is prior to the actual
execution of the decree for possession wherein the grievance of the obstruc-
tionist can be adjudicated u~oon before actual delivery of possession to the
decree-holder. The High Court has totally ignored the scheme of Order XXI,
C Rule 97 by taking the view that the only remedy of such stranger to the decree
lies under Order XXI , Rule 9!1 and he has no locus standi to get adjudication
of his claim prior to the.actu1al delivery of possession to the decree-holder
in the execution proceedings . This view taken by the High Court results in
patent breach of Principles of natural justice as the grievance of the
D obstructionist would not be. considered on merits. [474-C-G]

1.3 On the contrary, the statutory scheme envisaged by Order XXI,
Rule 97 provides a statutory remedy both to the decree-holder as well as
to the obstructionist to have their respective say in the matter and get

,,
proper adjudication before the Executing Court. If a decree-holder is
E obstructed in execution of the decree for possession with the result that
the decree for possession could not be executed in the normal manner by
obtaining warrant for possession under Order-XXI, Rule 35 then the
decree-holder has to move an application under Order XXI, Rule 97 for
removal of such obstruction and after hearing the decree-holder as well as
F the obstructionist, the Courit can pass appropriate orders after adjudicat-
ing upon the controversies between -the parties as enjoined by Order XXI,
Rule 97, sub-rule(2) read with Order XXI, Rule 98 and such order passed
would be treated as a decre1e under Order XXI, Rule 101 and no separate
suit would lie against such order meaning thereby the only remedy would
G be to prefer an appeal before the appropriate appellate court against such
deemed decree. [472-E-G]

1.4. When the strang;er is already dispossessed, then his remedy
woµld lie in filing an application under Order XXI, Rule 99 'claiming for
restoration of possession. If such an application is allowed after adjudica-
H tion, then as enjoined by Order XXI, Rule 98, sub.-rule(l), the Executing
,

BRAHMDEO CHAUDHARYv. R.P. JAISWAL 465
Court cau direct the stranger applicant under Order XXI, Rule 99 to be A
put in possession or if his application is found to be substance less it has
to be dismissed. Such an order passed by the executing Court disposing
of the application one way or the other under Order XXI Rule 98 sub-
Rule(l) would be deemed to be a decree as laid down by Order XXI Rule
103 and would be appealable before appropriate appellate forum. But no
B
separate suit would lie against such orders as clearly enjoined by Order
XXI Rule 101, in order to prevent multiplicity of proceedings and parallel
proceedings. [472-H; 473-A-D]

2. The application of Respondent No. 1, the decree holder, dated 6th
May, 1991 praying for issuance of warrant for delivery of possession with c
the aid of armed force, was in substance for removal of obstruction offered
by the appellant under Order XXI, Rule 97 and had to be adjudicated upon
as enjoined by Order XXI Rule 101 and Rule 98. As the Executing Court
refused to adjudicate upon the claim of the appellant who obstructed to
the execution proceedings, it had clearly failed to exercise jurisdiction D
vested in it by law. The High Court, in revision also committed the same
error by taking the view that such application was not maintainable. As
such, neither the Executing Court, nor the High Court in revision had
considered the objection of the appellant on merits. Consequently the
impugned judgment of the High Court as well as the order of the Executing
Court are quashed and set aside and proceedings are remanded to the E
Court of Munsif to redecide the application of respondent No.I, decree
holder dated 6th May, 1991 by treating it to be one under Order XXI Rule
97 for removal of. obstruction of the appellant and after hearing the
decree-holder as well as the appellant to adjudicate the claim of the
-._ ,(: appellant and to pass appropriate orders under Order XXI, Rule 97, F
sub-rule (2) CPC read with Order XXI, Rule 98. [477-F-H; 478-C-DJ

Bhanwar Lal v. Satyanarain and Anr., [1995] 1 SCC 6, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12088 of
1996. G

From the Judgment and Order dated 17.5.96 of the Patna High Court
-'I' in C.R. No. 381 of 1996.

S.B. Sanyal and Akhilesh Kumar Pandey for the Appellant. H
466 SUPREME COURT REPORTS [1997] 1 S.C.R.

A Ugra Shankar Prasad and Manish Mohan the Respondents. +
The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. In this appeal by special leave the appellant
has posed a short question for our consideration. It runs as under :
B
"Whether the appellant who claims to be a stranger, occupying
decretal premises in his own right and who has offered resistance
to the execution of the decree obtained by the decree-holder
against the judgment-debtor qua such property can request the
c Executing Court to adjudicate upon his resistance and obstruction
without being insisted upon that first he must hand over possession
and then only move an application under Order XXI Rule 99 Code
of Civil Procedure ('CPC' for short)?"

The High Court agreeing with the Executing Court has negatived the
D aforesaid request of the appellant by holding that such stranger to the
decree who has put forward his obstruction in the exe~ution proceedings
has the only remedy under Order XXI Rule 99, CPC after his obstruction
is first removed and he is dispossessed of the premises. This Court granted
special leave to appeal to the appellant under Article 136 of the Constitu-
E tion of India and granted stay of dispossession by its order dated 17th
September 1996. Shri Sanyal, learned senior counsel for the appellant has
raised a serious grievance against the aforesaid view of the High Court.

For resolving the aforesaid controversy between the appellant on the
one hand and respondent No. 1 decree-holder on the other a few intro-
F ductory facts deserve to be noted at the outset.

Respondent No. 1 filed an Eviction Suit No. 54 of 1988 in relation
to six and a half dhurs of the suit land against respondent No. 2 and his
mother Bachani Devi. A decree was passed in favour of respondent No. 1
against the judgment-debtor respondent No. 2 in 1988 by the Court of
G Munsif II, Munger. Respondent No. 1 filed execution proceedings in 1990
against respondent No. 2 Judgment-debtor. These proceedings were
registered as Execution Case No. 25 of 1990. On 25th April 1991 respon-
dent No. 1 decree-holder obtained warrant for delivery of possession from
the Executing Court against respondent No. 2. When the bailiff went on
H spot to execute the warrant on 28th April 1991 he was resisted by the
BRAHMDEOCHAUDHARYv. R.P.JAISWAL[MATMUDAR,J.] 467

present appellant as well as his brothers Sitaram Choudhary and Jago A
Choudhary along with 20- 25 persons and because of the resistance offered
by them and on account of abuses and throwing of bricks and stones
indulged into by them it was impossible to execute the warrant for posses-
sion. Under these circumstances the decree-holder by his application dated
6th May 1991 requested that help of magistrate' and armed force be made
B
available at his cost for execution of the decree. It appears that the said
application remained lingering on the file of Executing Court for number
of years and ultimately the Executing Court directed execution of the
warrant for possession by affording help of police force to the decree-
holder. It was at that stage that the present appellant filed a written
application on 22nd January 1996 before the Executing Court to stay C
operation of the said warrant and to decide his objections. By a rejoinder
date_d 1st February 1996 respondent No. 1 decree-holder raised the ques-
tion of maintainability of such an application before handing over actual
possession to the decree-holder. The Executing Court without adjucating
upon the objections of the appellant on merits and without deciding D
whether the obstruction or resistance offered by him was legally justified
of not dismissed the appellant's application dated 22nd January 1996 by
order dated 15th February 1996. The Executing Court took the view that
the remedy of the appellant was to move an application under Order XXI
Rule 99, CPC only after he was dispossessed and as that stage was not still
reached the request of the appellant to adjudicate his claim could no be E
entertained. It is this order of the Executing Court which has come to be
confirmed by the High Court of Judicature at Patna by the impugned order
dated 17th May 1996.

In the background of the aforesaid factual matrix it is necessary to F
have a look at the relevant statutory provisions governing the controversy
between the parties. As respondent No. 1 decree-holder seeks to execute
his decree for possession of immovable property against judgment-debtor
respondent No. 2 he has rightly invoked provisions of Orders XXI, CPC
by putting the decree for possession of immovable property into execution.
His application for issuance of a fresh warrant for possession with the G
police aid as moved by him on 6th May 1991 purports to invoke the
provision of Order XXI Rule 35, CPC which reads as under :

"35. Decree for immovable property. - (1) Where a decree is for
the delivery of any immovable property, possession thereof shall H
468 SUPREME COURT REPORTS [1997] 1.S.C.R.
A he delivered to the party to whom it has been adjudged, or to such
person as he may appoint to receive delivery on his behalf, and, if
necessary, by removing any person bound by the decree who
refuses to vacate the property.

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

c (3) Whether poss1~ssion of any building on enclosure is to be
delivered and the person in possession, being bound by the decree,
does not afford free access, the Court, through its officers, may,
after giving reasonable warning and facility to any woman not
appearing in public according to the customs of the country to
\\ithdraw, remove or open any lock or bolt or break open any door
D
or do any other act necessary for putting the decree-holder in
possession."

A mere look at the aforesaid provision shows that warrant for possession
can be straightaway sought against persons occupying immovable .property
E which is subject-matter of decree by the decree-holder provided such
persons who are occupying the suit property are judgment-debtors or
persons c!laiming through the former. We are concerned with the situation
in which th:e appellant resisted the execution proceedings on the ground
that he was a stranger to the decree and claimed an independent interest
F in the suit immovable property possession of which was decreed in favour ,,. r·
of respondent No. 1 decree-holder. The Nazir in his report dated 28th
April 1991 has noted that the warrant for possession could not be executed
on spot on account of the resistance and obstruction offered by the
appellant, amongst others. Once that report was received by the Executing
Court respondent No. 1 decreecholder naturally became alive to the fact
G of such resistance on spot by the appellant, amongst others. Thereafter
when he movecl the application on 6th May 1991 for issuance of fresh
warrant for possession with the help of police force though the application
purported to be under order XX.I Rule 35 it would strictly not fall within ~
that provision as the decree-holder wanted to bypass the obstruction and
H resistance: offered by a stran~;er to the decree, namely, the appellant who
BRAHMDEOCHAUDHARYv. R.P.JAISWAL[MAJMUDAR,J.] 469

was not claiming any right, title or interest through the judgment-debtor. A
Wh.ether his claims was right or wrong on merit is a different matter. But
once such resistance was offered by him the proper procedure which was
required to be followed by respondent No. 1 decree-holder was the one
contemplated by Order XXI Rule 97, CPC. The said provision reads as
under:
B
"97. Resistance or obstruction to possession of immovable proper-
ty. - (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 C
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 accord-
ance with the provisions herein contained." D

On the undisputed facts on record it has, therefore, to be held that because
of the resistance or obstruction offered by the appellant, amongst others,
on 28th April 1991 the application moved by the respondent decree-holder
on 6th May 1991 was necessarily to be one falling within the scope and E
ambit of Order XXI Rule 37. Jt is pertinent to note that the resistance
and/or obstruction to possession of immovable property as contemplated
by Order XXI Rule 97, CPC could have been offered by any person. The
words 'any person' as contemplated by Order XXI Rule 97 sub-rule (1)
are comprehensive enough to include apart from judgment-debtor or
F
anyone claiming through ·him even persons claiming independently and
who would, ·therefore, be total strangers to the decree. It is not in dispute
between the parties that no decree for possession has been obtained by
respondent No. 1 against the appellant. He is, therefore, prima facie a
stranger to the decree. When he offered obstruction or resistance to. the
execution of the decree he would squarely fall within the sweep of the G
words 'any person' as found in Order XXI Rule 97 sub-rule (1). Conse-
quently it must be held that respondent No. l's application dated 6th May
1991 though. seeking only re-issuance of warrant for delivery of possession
with aid of armed force in substance sought to bypass the previous resis-
tan.;e and obstruction offered by the appellant on spot. Thus it was H
470 SUPREME COURT REPORTS (1997] 1 S.C.R.
A · squarely covered by the sweep of Order XXI Rule 97 sub-ruie (1). Once
that happened the procedure laid down by sub-rule (2) thereof had to be
followed by the Executing Court. The Court had to proceed to adjudicate
upon the application in accordance with the subsequent provisions con-
tained in the said Order. We may in this connection also refer to the
B Schedule to the CPC, Appendix E which gives various forms for summons
to be issued to parties in execution proceedings especially form No. 40
which deals with 'Summons to appear an answer charge of obstructing
execution of decree (0.21, R.97)'. The said form reads as under:

"No. 40
c
Summons To Appear And Answer Charge of Obstructing
Execution of Decree (0.21, R 97)

(Title)

D To

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

E You are here by summoned to appear in this Court on the day
of 19, at A.M., to answer the said complaint.
J

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

Judge."
F
It is, therefore, clear that in an application under Order XXI Rule 97
moved by a decree-holder who complains about the resistance or obstruc-
tion offered by any person to the decree-holder in his attempt at obtaining
possession of property and who wants such obstruction or resistance to be
removed which otherwise is an impediment in his way, a !is arises between
G the decree-holder applicant under Order XXI Rule 97 on the one hand
and such obstructionist or resisting party on the other, to whom summons
has been issued by the Court as per Form No. 40. When such a lis arises,
it has to· be adjudicated upon as enjoined by Order XXI Rule 97 sub-rule
(2). The procedure for adjudicating such a !is has to be culled out from
H the remaining succeeding Rules of Order XXL This directly takes us to
BRAHMDEO CHAUDHARY v. R.P. JAISWAL [MAJ MUD AR, J.] 471

the consideration of Order XXl Rule 101 which reads as under : A
"101. Question to be determined. - All questions (including ques-
tions relating to right, title or interest in the property) arising
between the parties to a proceedings on an application under Rule
97 or Rule 93 of their representatives, and relevant to the adjudica-
tion of the application, shall be determined by the Court dealing B
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."
c
Now it is obvious that such questions relating to the right, title and interest
in the property arising between the parties to any proceedings under Order
XXI Rule 97 or Rule 99 have to be adjudicated upon by following an
identical gamut of procedure by the Executing Court. The said gamut of
procedure is laid down by Order XXI Rule 98 which reads as under :
D
"98. Orders after adjudication.- (1) Upon the determination of the
questions referred to in Rules 101, the Court shall, in accordance
with such determination and subject to be provisions of sub-rule
(2).
E
(a) make an order allowing the application and Ciirecting that the
applicant be put into the possession of the property or di;;-
missing the application; or

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

(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 proceedings, it G
shall direct that the applicant be put into possession of the proper-
. ty, and where the applicant is still resisted or obstructed in obtain-
ing 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 H
472 SUPREME COURT REPORTS (1997] 1 S.C.R.

A may extend to thirty days."

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

"99. Dispossession by decree-holder or purchaser.- (1) Where any
person other than the judgment-debtor is dispossessed of immov-
B able property by the holder of a decree for the possession of such
property or where such property has been sold in execution o( 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
c proceed to adjudicate upon the application in accordance with the
provisions herein contained."

A conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the
following picture :
D
(1) If a decree-holder is resisted or obstructed in execution of the
decree for possession with the result that the decree for posses-
sion could not be executed in the normal manner by obtaining
warrant for possession under Order XXI Rule 35 then the
decree-holder has to move an application under Order X.XI Rule
E 97 for removal of such obstruction and after hearing the decree-
holder and the obstructionist the Court can pass appropriate
orders after adjudicating upon the controversy between the par-
. ties as enjoined· by Order XXI Rule 97 sub-rule (2) read with
. Order XXI Rule 98. It is obvious that after such adjudication if
F it is found that the resistance or obstruction was occasioned
without just cause by the judgment-debtor or by some other
person at his instigation or on his behalf than such obstruction
or resistance would be removed as per Order XXI Rule 98
sub-rule(2) and the decree-holder would be permitted to be put
. in possession. Even in such an eventuality the order passed would
G be treated as a deciree under Order XXI Rule 101 and no
separate suit would lite against such order meaning thereby the
.only remedy would be to prefer an appeal before the appropriate
appellate court again:it such deemed decree.

H (2) If for any reason a stranger to the decree is already dispossessed
BRAHMDEO CHAUDHARYv. R.P.JAISWAL(MAJMUDAR,J.] 473

of the suit property relating to which he claims any right, title or A
. ·-1" interest before his getting any opportunity to resist or offer
obstruction on spot on account of his absence from the place or
for any other valid reason then his remedy would lie in filing an
application under Order XXI Rule 99, CPC claiming that his
dispossession was illegal and that possession deserves to be B
restored to him. If such an application is allowed after adjudica-
tion then as enjoined by Order XXI Rule 98 sub-rule (1), CPC
the Executing Court can direct the stranger applicant under
Order XXI Rule 99 to be put in possession of t)le property or if
his application is found to be substanceless is has to be dismissed. .
Such an order passed by the Executing Court disposing of the C
application one way or the other under Order XX! Rule 98
sub-rule (1) would be deemed to be a decree as laid down by
Order XX! Rule Hl3 and would be appealable before ap-
propriate appellate forum. But no separate suit would lie against
such orders as clearly enjoined by Order XX! Rule 101. D
In short the aforesaid statutory provisions of Order XXI lay down a
complete code for resolving all disputes pertaining to execution of decree
for possession obtained by a decree-holder and whose attempts at execut-
ing the said decree meet with rough weather. Once resistance is offered E
by a purported stranger to the decree and which comes to be noted by
the Executing Court as well as by the decree-holder the remedy available
to the decree-holder against such an obstructionist is only under Order
XXI Rule 97 sub-rule (1) and he cannot b)'pass such obstruction and insist
on re-issuance of warrant for possession under Order XX! Rule 35 with
the help of police force, as that course would amount to bypassing and F
circumventing the procedure laid down under Order XX! Rule 97 in
connection with removal of obstruction ·of purported stranger.s to the
decree. Once such an obstruction is on the record of the Executing Court
it is difficult to appreciate how the. Executing Court can tell such obstruc-
tionist that he must first lose possession and then only his remedy is to G ·
move an application under Order. XXI Rule 99, CPC and pray for
restoration of possession. The High Court by the impugned order and
judgment has taken the view that the only remedy available to a stranger
to the decree who claims any ind.ependent right, title or interest in the
decretal property is to go by Order XXI Rule 99. This view of the High H
474 SUPREME COURT REPORTS [1997] 1 S.C.R.
A Court on the aforesaid statutory scheme is clearly unsustainable. It is easy
to visualise that a stranger to the decree who claims an independent right,
title and interest in the decreral property can offer his resistance before
getting actually dispossessed. He can equally agitate his grievance and
claim for adjudication of his independent right, title and interest in the
B decretal property even after losing possession as per Order XXI Rule 99.
Order XXI Rule 97 deals with a stage which is prior to the actual execution
of the decree for possession wherein the grievance of the obstructionist can
be adjudicated upon before adual delivery of possession to the decree-
holder. While Order XXI Rule 99 on the other hand deals with the
C subsequent stage in the execution proceedings where a stranger claiming
any right, title and interest in the decretal property might have got actually
dispossessed and claims restoration of possession on adjudication of his
independent right, title and interest dehors the interest of the judgment-
debtor. Both these types of enquiries in connection with the right, title and
D interest of a stranger to the decree are clearly contemplated by the
aforesaid scheme of Order XXI and it is not as if that such a stranger to
the decree can come in the picture only at the final stage after losing the ~--
possession and not before it if he is vigilant enough to raise his objection
and obstruction before the warrant for possession gets actually executed
against him. With respect the High Court has totally ignored the scheme
E of Order XXI Rule 97 in this connection by taking the view that only
remedy of 1;uch stranger to the decree lies under order XXI Rule 99 and
he has no locus standi to get adjudication of his claim prior to the actual
delivery of possession to the decree-holder in the execution proceedings.
The view taken by the High Comt in this connection also results in patent
F breach of principles of natural justice as the obstructionist, who alleges to
have any independent right, title and interest in the decretal property and
who is admittedly not a party to the decree even though making a grievance
right in time before the warrant for execution is actually executed, would
be told off the gates and his grievance would not be considered or heard
G on merits and he would be thrown off lock, stock and barrel by use of
police force by the decree-holder. That would obviously result in ir-
reparable injury to such obstructionist whose grievance would go over-
board without being considered on merits and such obstructionist would
be condemned totally unheard . Such an order of the Executing Court,
H therefore, would fail also 011 the ground of non-compliance with basic
BRAHMDEO CHAUDHAR Y v. R.P. JAISWAL [MAJMUDAR, J .] 475

principles of natural justice. On the contrary the statutory scheme en- A
visaged by Order XXI Rule 97, CPC as discussed earlier clearly guards
against such a pitfall and provides a statutory remedy.both to the dccree-
holder as well as lo the obstructionist to have their respective say in the
matter and to get proper adjudication before the Executing Court and it
is that adjudication which subject to the hierarchy of appeals would remain B
binding between the parties to such proceedings and separate suit would
be barred with a view to seeing that multiplicity of proceedings and parallel
..... ,._ proceedings are avoided and the gamut laid down by Order XX! Rules 97
to 103 would remain a complete code and the sole remedy for the con-
cerned parties to have their grievances once and for all finally resolved in
execution proceedings themselves.
c
In this connection we may also profitably refer to a judgment of the
Bench of three learned judges of this Court in the case of Bhanwar Lal v.
Satyanarain and Another, (1995] 1 SCC 6. In that case the Bench consisting
of K. Ramaswamy, S.C. Agrawal and N. Venkatachala, JJ., had to consider D
a parallel fact situation. One Satyanarain had obstructed to the delivery of
possession of the suit immovable property which was sought to be obtained
in execution by the appellant decree-holder. After such an obstruction was
offered by Satyanarain the decree-holder moved an application under
Order XXI Rule 35 for police assistance to remove 9bstruction caused by E
Satyanarain. The Executing Court directed the decree-holder to make an
application under Order XXI Rule 97. This Court took the view that the
very application under Order XXI Rule 35 sub-rule (3) for police assis-
tance for removal of obstruction caused by Satyanarain had to be treated
to be an application under Order XXI Rule 97 and such an application
was maintainable and could not be said to be beyond limitation. It this F
connection the following pertinent observations were made by this Court :

"The crux of the question is whether the application filed on
25.5.1979 by the appellant, though purported to \:>e under Order
21, Rule 35(3) against Satyanarain, is convertible to one under G
Order 21, Rule 97. Order 21, Rule 35(3) provides that :

'35. (3) Where possession of any building on enclosure is to
be delivered and the person in possession, being bound by
the decree, does not afford free access, the Court, through
.its officers, may, after giving reasonable warning and facility H
476 SUPREME COURT REPORTS [1997) 1 S.C.R.

A to any woman not appearing in public according to the
customs of the country to withdraw, remove or open any lock
or bolt or break open any door or do any other act necessary
for putting the decree-holder in possession.'

A reading of Order 21, Rule 35(3) postulates that the person
B in possession of the: immovable property to be delivered under the
decree must be per force 0ound by the decree. Admittedly,
Satyanarain was not a judgment-debtor and that therefore, he is
not bound by the decree unless he claims right, title or interest
through the judgment-debtor, Ram Kishan, the person resisting
c delivery of possession must be bound by the decree for possession.
In other words the resistor must claim derivate title from the
Judgment-debtor. The court gets power under Order 21, Rule 97
to remove such obstruction or resistance and direct its officer to
put the decree-holder in possession of the immovable property
after conducting enquiry under Rule 97.
D
Order 21, Rule 97 provides thus :

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

F (Z) 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."

The procedure has been provided in Rules 98 to 103. We are
not, at present, concerned with the question relating to the proce-
G dure to be followed and question to be determined under Order
21, Rules 98 to 102. A reading of Order 21, Rule 97 CPC clearly
envisages that "any person" even including the judgment-debtor
irrespective whether he claims derivative title from the judgment-
debtor or set up his own right, title or interest delwrs the judg-
H ment-debtor and he resists execution of a decree, then the court
BRAHMDEOCHAUDHARYv. R.P.JAISWAL[MATMUDAR,J.] 477

in addition to the power under Rule 35(3) has been empowered A
to conduct an enquiry whether the obstruction by that person in
obtaining possession of immovable property was legal or not. The
decree-holder gets a right under Rule 97 to make an application
against third parties to have his obstruction removed and an
enquiry thereon could be done. Each occasion of obstruction or B
resistance furnishes a cause of action to the decree-holder to make
an application for removal of the obstruction or resistance by such
person.

When the appellant had made the application on 25.5.1979
against Satyanarain, in law it must be only the application made C
under Order 21, Rule 97(1) of CPC. The executing court, obvious-
ly, was in error in directing to make a fresh application. It is the
duty of the executing court to consider the averments in the
petition and consider the ·scope of the applicability of the relevant
rule. On technical ground the executing court dismissed the second D
application on limitation and also the third application, on the
ground of res judicata which the High Court has in the revisions
now upheld. The procedure is the handmaid of substantive justice
but in this case it has ruled the roost."

In view of the aforesaid settled legal position, therefore, and in the light of E
the statutory scheme discussed by us earlier it must be held that respondent
No. 1 decree-holder's application dated 6th May 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 XXI Rule 97, CPC and had to be adjudicated upon as F
enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI 101 and
Order XXI Rule 98. In this connection the Court had also to follow the
procedure laid down by Order. XXI 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 G
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 paragraph4 of the judgment under appeal the H
478 SUPREtvlE COURT REPORTS (1997] 1 S.C.R.
A High Court has noted that there was some discrepancy about the Khasra
Number. But these are passing observations. On the contrary in the sub-
sequent 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 XXI Rule 99 after
handing over possession and consideration of objection to delivery of
B
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
C No. 25 of 1990 dated 15th February 1996 are quashed and set aside and
proceedings are remanded to the Court of Munsif II, Munger to re-decide
the application of re~pondent No. 1 decree-holder dated 6th May 1991 by
treating it to be one under Order XXI Rule 97 removal of obstruction of
appellant and after hearing the. decree-holder as well as the appellant to
D adjudicate the claim of the appellant and to pass appropriate orders under
Order XXI Rule 97 sub-rule (2), CPC read with Order XXI Rule 98, CPC
as indicat\:d in earlier part of this judgment.

Before parting will this case we may mention one apprehension
voiced by learned counsel appearing for the decree-holder. He submitted
E the Nazir has noted in his report dated 28th April 1991 that when he went
to execute the decree he was resisted on spot by Brahmdeo Chaudhary,
that is the present appellant, as well as by Sitaram Chaudhary and Jago
Chaudhary who are found to be brothers of the appellant and some other
persons and therefore, these other persons also would one by one come
F forward to further obstruct the execution proceedings which would be
indefinitely delayed. This submission through p1ima f acie looking attractive
on a closer scrutiny does not remain well sustained. Even though the
Nazir's report mentions the obstructions offered by Sitaram Chaudhary,
Jago Chaudhary, Brahmdeo Chauclhary and others, only the appellant
objected to the order passed by the Executing Court on respondent No.
G f's application elated 6th May 1991 for issuance of a fresh warrants for
delivery of possession with the aid of police force. Only he put forward his
written objections on 22nd January 1996. Neither of his brothers, namely,
Sitaram Choudhary or Jago Chaudhary nor anyone else filed and objection
to the said application for issuance of fresh warrant for possession with the
H police aid. Therefore, it must be held that the only objectionist to remain
0

BRAHMDEOCHAUDHARYv. R.P.JAISWAL[MAJMUDAR,J.] 479

in the field claiming to be a stranger having any right, title and interest in A
the suit property is the appellant and no one else. The others who might
have resisted on spot on 28th April 1991 must be treated to have given up
their obstructions and resistance subsequently and have gone out of pic-
ture. It must, therefore, be held that only the appellant is the sole surviving
obstructionist whose claim regarding the alleged independent right, title
B
and interest in the decretal property has to be adjudicated upon by the
Executing Court under XXI Rule 97 sub-rule (2), CPC pursuant to the
present order. The Executing Court shall not entertain objection or
obstruction from any other party or person. It is also necessary to direct
the executing Court, to which these proceedings are being remanded, to
adjudicate upon the claim of the appellant to the decretal property as per c
the provisions of Order XXI Rule 97 sub-rule (2), CPC read with Ordff
XXI Rule 98 within a period of thre'" months from the receipt of the writ
of the order at its end as the decree 1S.:!lf 1988 and the execution proceed-
ings now would be pending for about nine years.

The appeal is accordingly allowed. There will be no order as to costs D
in the facts and circumstances of the case.

H.K. Appeal allowed.