Holding

The executing court is competent to determine all questions of right, title or interest under Order 21 Rule 101, and the objections are maintainable; the view that transferees are bound by the decree is unsustainable.

Summary

The original suit sought partition of a 196‑acre property in Hydernagar village, resulting in a preliminary decree that became final and a commissioner was appointed for division. Respondents, assignees of decree‑holders, obtained possession of their shares through execution proceedings. The appellants, who claimed to be transferees of the original pattadars under the Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958, filed objections under Order 21 Rules 97/99 of the CPC alleging an independent title and resisted the execution. Both the trial court and the Andhra Pradesh High Court dismissed the objections as non‑maintainable. The Supreme Court held that the executing court has jurisdiction under Order 21 Rule 101 to adjudicate all questions of right, title or interest raised in such objections, and that the view that the appellants are bound by the decree merely because they claim title through the State Government is unsustainable. Consequently, the appeal was allowed and the matter remitted to the High Court for fresh consideration of the objections.

Issues considered

The maintainability of objections filed under Order 21 Rule 97/99 of the CPC by persons claiming independent title to the property.
Whether the executing court can adjudicate questions of right, title or interest arising in such objections.
Whether transferees claiming title through the State Government are bound by the decree in the original partition suit.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rules 97-103
Transfer of Property Acts. Section 52

Subjects

partition suitexecution of decreeOrder 21 CPCobstructiontitle disputetransfereemaintainabilitydecree holderJagirdar Regulation Act

Judgment

N.S.S. NARA YANA SARMA AND ORS. A
v.
MIS. GOLDSTONE EXPORTS (P) LTD. AND ORS.

NOVEMBER 23, 2001

[D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.] B

Code of Civil Procedure, 1908-0rder 21 Rules 97-99 and 101-
Dispossession by decree holder of purchaser-Decree of partition of the suit
property-Transferee dispossessed of the property by decree holder-Objec-
tions filed under Order 21 Rule 99 claiming independent title to the property c
as the transferee from the Pattadars whose land did not vest in the State
Government under the provisions of the Act-Maintainability of-Dismissal
by Trial Court and High Court-On appeal, held the view that the transferees
are bound by the decree as they are claiming the property through the State
Government who were parties in the suit is unsustainable-Andhra Pradesh
(Telangana Area) Abolition of Jagirs Regulation, 1358. (Fasli) D

One 'D' filed a suit for partition of the suit properties. A preliminary
decree was passed which subsequently attained finality pursuant to which
the High Court appointed a Commissioner for division of the property in
terms of the decree. Respondent, tracing their title to transfers by some E
decree-holders filed applications before the High Court for delivery of
possession of the property of their share which was allowed. Respondent
then filed execution petition for delivery of possession. Appellants claiming
to be transferees, claimed right to such property and filed objection Peti-
tion under Order 21 Rule 97 read with Section 101 C.P.C. resisting the
execution. Trial Court and High Court dismissed the petitions. This Court, F
in appeal directed the parties to approach the Executing Court to decide
the question of maintainability of the applications under Order 21 Rule 99
C.P.C. and High Court to decide the controversies in accordance with law.
The High Court dismissed the objections as not maintainable. Hence the
present appeal. G
On appeal, the appellants contended that their right, title and inter·
est in the property could not have been evicted by the preliminary decree
passed in the matter in which they were not parties.

Allowing the appeal, the Court H
327
328 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A HELD : 1. The appellants filed a petition before Executing Court
claiming independent title to the property as the 1ransferees from the
pattadars whose land did not vest in the State Government under the
provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar
Regulation Act, 1958 from which they are sought to be evicted in execution
of the decree. Thus the view taken by the Division l~ench that since the
B
appellants were claiming the property through the Paigah Committee or
the State Government, who are parties in the suit, they are bound by the
decree, is unsustainable and does not at all stand scrutiny under law.
[338-G; H; 339-A; BJ

c 2. When any person claiming title to the property in his possession
obstructing the attempt by the decree-holder to dispossess him from the
said property the executing Court is competent to consider all questions
raised by the persons offering obstruction against exucution of the decree
and pass appropriate order which under the provisions of Order 21 Rule
103 is to be treated as a decree. (338-D; E]
D
Silverline Forum Pvt. Ltd..v. Rajiv Trust and Anr., (1998] 3 SCC 723;
Shreenath and Anr. v. Rajesh & Ors., [1998] 4 SCC 543 and Anwarbi v.
Pramod D.A. Joshi and Ors., [2000] 10 SCC 405, referred to.
Usha Jain v. Manmohan Bajaj, AIR (1980) MP 146, cited.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7983 of 2001.

From the Judgment and Order dated 10.11.98 of the Andhra Pradesh
High Court in O.S.A. No. 20 of 1996.

WITH
F
C.A. Nos. 7984-85, 7986-88 of 2001.

P.P. Rao, C. Sitaramaiah R.F. Nariman, S. Muralidhar, B. Nalin Kumar,
S. Vallinayagam, M.K. Garg, Aman Lekhi, Ms. Anjali Aiyagari, Guntur
Prabhakar, Ms. Neeru Vaid, K. Ram Kumar, B. Sridhar, A.K. Narasimha Rao
G and Anis Ahmed Khan for the appearing parties.

The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. Leave is granted in all the SLPs.

The judgment rendered by a Division Bench of the Andhra Pradesh High
H
N.S.S. NARA YANA SARMA '-GOLDSTONE EXPORTS (P) LID. [MOHAPATRA, J.] 329
Court on 10th November, 1998 disposing of a batch of appeals filed under A
Clause 15 of the Letter Patent, against the judgment of single Judge is under
challenge in these appeals. Since common questions of fact and law were raised
by the parties in all the cases the High Court disposed of the appeals by a
common judgment. The dispute relates to a property extending over 196.20
guntas under Survey No. 172 of Hydernagar village. The contest is between
B
two sets of transferees of the property, while the appellants claim to be trans-
ferees of holders of pattas issued in their favour by the Pygah Committee of
Nawab Khurshed Jah Pygah, the respondents trace their title to transfers by
some decree-holders in the suit. The objections filed by the appellants under
Order 21 Rule 99 read with Rule 101 of the Civil Procedure Code (for short
'the CPC') having been dismissed by the High Court as non-maintainable, the c
appellants are before this Court assailing the judgment of the High Court.

The genesis of the proceedings leading to the present cases shorn of
unnecessary details, !nay be stated thus : One Dildar Unnisa Begum filed OS
No. 41/1955 in the City Civil Court, Hyderabad against the defendants for a
decree of partition of the suit properties which according to the plaintiff were
D
Matruka property of the late Nawab Khurshed Jah Paygah. The High Court
transferred the suit to its file and on such transfer the suit was re-numbered as
C.S. No. 14 of 1958. A preliminary decree was passed in the suit on 28th June,
1963 on the basis of the compromise entered into between the parties. No
appeal having been filed against the preliminary decree it attained finality. The E
subject matter of the present proceeding is included as Item No. 38 of Schedule
IV of the plaint. Item No. 38 corresponding to Survey No. 172 of Hydernagar
Village to an extent of 196 acres 25 guntas was allotted to plaintiff no. 21
defendants nos. 27, 50, 51, 52 and 116 in the preliminary decree. In pursuance
of the preliminary decree the High Court appointed a Commissioner for divi- F
sion of the property in terms of the decree.

Mis. M.S. Cyrus Investments Ltd. is stated to have purchased 50 shares
of HEH Nizarn who himself was a purchaser of certain shares from the original
decree-holder and thus became defendant no. 206 in the suit. Subsequently, the
said Mis. M.S. Cyrus Investments Ltd. assigned its assets in favour of Mis. G
Goldstone Exports and some others who are respondents herein. After the aid
assignment Mis. Goldstone Exports and ,others filed applications before the
High Court for certain reliefs including delivery of possession of the property '
of their share and for mutation of their n&mes in the revenue records. A single
Judge of the High Court allowed the applications filed by Mis. Goldstone H
330 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A Exports and other assignees for being impleaded as defendants in the suit.
Thereafter the applicants so impleaded as defendants in the suit filed E.P. No.
3/96 seeking delivery of possession. A single Judge of the High Court by the
order passed on 29th March, 1996 ordered delivery of possession of the
property in favour of the applicants. The Bailiff appointed by the Court is stated
B to have delivered possession of the property to the respondents.

The appellants tried to obstruct delivery of possession of the property to
the applicants. The gist of their case was that the late Nawab Khurshed Jab
Pygah administration had granted pattas in favour of several cultivators and
supplementary sethwar was also issued, wherein the names of the pattadars
c were recorded. Since the supplementary sethwar had not been implemenied the
lands were erroneously shown as government lands. Subsequently, however
the supplementary sethwar was implemented and their names were recorded
as transferees of the property in the year 1980. Thereafter the pattadars entered
into an agreement of sale with SETW!N Employees Housing Cooperative
Society and Shri Satya Sai Cooperative Housing Society Ltd. of which the
D
appellants are the members. Registered sale-deeds were also executed in favour
of the appellants to the extent of 85 acres of land. Pakka houses were con-
structed on the lands transferred in favour of the appellants. Assessment of
property tax in respect of the houses has been made by the Kukatpally Munici-
pality.
E
Coming to know of the execution petition filed by the respondents for
delivery of possession before the District Judge, Ranga Reddy District, some
of the appellants filed petitions under Order 21 Rule 97 read with Section IOI
of the CPC resisting the execution. The District Judge dismissed the petitions
holding that he was not the Executing Court, he was merely implementing the
F orders passed by the High Court and, therefore, could not entertain such
applications. The appellants approached the High Court in appeal but were
unsuccessful. Thereafter they filed Civil Appeal Nos. 5610-5611/1997 (Arising
out of SLP (C) No. 4162-63/1997) and Civil Appeal No. 5609 of 1997 (Arising
out of SLP (C) No. 23706 of 1996) and Civil Appeal Nos. 5612-14/1997
G (Arising out of SLP (C) Nos. 8787-8789 of 1997) before this Court which were
disposed of by the order dated 14.8.1997 wherein both the parties were directed
to approach the Executing Court and the Executing Court was directed to
decide the question of maintainability of the applications under Order 21 Rule
99 CPC and also the question of limitation, uninfluenced by any direction given
by the High Court. The High Court was directed to go into all the questions
H
N.S.S. NARAYANA SARMA '·GOLDSTONE EXPORTS (P) LTD. [MOHAPATRA, J.] 331
arising in the case and finally decide the controversies as it thinks proper and A
in accordance with law.

That is how the appeals were placed before the Division Bench which
disposed them of by the judgment under challenge.

From the facts narrated in the impugned judgment it is clear that the B
appellants claimed to have become absolute owners of the land on the basis
of their purchase of the same from the pattadars much prior to the Andhra
Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958 came
into force. It was the further case of the appellants that they were in possession
of the land and had constructed pucca houses thereon. They contended that
their right, title and interest in the property could not have been affected by the c
preliminary decree passed in C.S. No. 14 of 1958 in which they were not
parties.

: The relevant provisions of the CPC material for the case are Rules 97
to 103 of Order 21 of the Code. Rule 97 provides that :"(1) Where the holder
D
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 abstaining possession of the property, he may make an application
to the Court complaining of such resistance or obstruction''. Such an applica-
tion is to be dealt with by the Court in accordance with the provisions contained
in the Code. E
Under Rule 98 provision is made regarding the order to be passed by the
Court in accordance with the determination either making it to be allowing the
application and directing that the applicant be put into the possession of the
property or dismissing the application or passing such other order as, in the
F
circumstances of the case, it may deem fit.

Under Rule 99(1) it is laid down "Where any person other than the
judgment-debtor is dispossessed of immovable property by the holder of a
decree for the possession of such property or, where such property has been
sold in execution of a decree, by the purchaser thereof, he may make an G
application to the Court complaining of such dispossession." Under sub-rule
(2) thereof it i; provided that where any such application is made, the Court
shall proceed to adjudicate upon the application in accordance with the pro-
visions contained in the Code.

Under Rule 100 it is laid down that : "Order to be passed upon appli- H
332 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A cation complaining of dispossession - Upon the detennination of the questions
referred to in Rule 101, the Court shall, in accordance with such detennination

(a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing
B the application; or

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

Rule 101 contains provisions regarding question to be detennined. It
c reads as follows :

"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 adjudi-
cation of the application, shall be determined by the Court dealing with the
D
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."

Under Rule 102 it is provided "Nothing in Rules 98 and 100 shall apply
E to resistance or obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgment-debtor has transferred
the property after the institution of the suit in which the decree was passed or
to the dispossession of any person." .

Under Rule 103 any order made by the Court upon adjudication under
F Rule 98 or Rule 100 shall have the same force and be subject to the same
conditions as to an appeal or otherwise as if it were a decree.

Provision is made in the Civil Procedure Code for delivery of possession
of immovable property in execution of a decree and matters relating thereto.
In Order 2 I Rule 35 provisions are made empowering the executing court to
G deliver possession of the property to the decree holder if necessary, by remov-
ing any person bound by the decree who refuses to vacate the property. In Rule
36 provision is made for delivery of fonnal or symbolical possession of the
property in occupancy of a tenant or other person entitled to occupy the same
and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of
H Order 21 contain the provisions enabling the executing court to deal with a
N.S.S. NARAYANA SARMA v. GO!DSTONE EXPORTS (PiLTD. [MOHAPATRA, I.) 333
situation when a decree holder entitled to possession of the property encounters A
obstruction from "any person". From the provisions in these rules which have
been quoted earlier the scheme is clear that the legislature has vested wide
powers in the executing court to deal with "all issues" relating to such matters.
It is a general impression prevailing amongst the litigant public that difficulties
of a litigant are by no means over on his getting a decree for immovable
B
property in his favour. Indeed, his difficulties in real and practical sense, arise
after getting the decree. Presumably, to tackle such a situation and to allay the
apprehension in the minds of litigant public that it takes years and years for
the decree holder to enjoy fruits of the decree, the legislature made drastic
amendments in provisions in the aforementioned Rules, particularly, the pro-
vision in Rule IOI in which it is categorically declared that all questions c
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 D
contrary contained in any other law for the time being in force, be deemed to
have jurisdiction to decide such questions. On a fair reading of the rule it is
manifest that the legislature has enacted the provision with a view to remove,
as far as possible, technical objections to an application filed by the aggrieved
party whether he is the decree holder or any other person in possession of the
immovable property under execution and has vested the power in the executing
E
court to deal with all questions arising in the manner irrespective of whether
the Court otherwise has jurisdiction to entertain a dispute of the nature. This
clear statutory mandate and the object and purpose of the provisions should not
be lost sight of by the Courts seized of an execution proceeding. The Court
cannot shirk its responsibility by skirting the relevant issues arising in the case. F

(Emphasis supplied)

Interpreting the provisions in these rules, a three Judge hench of this
Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., [1998]
3 sec 723 held :
G

"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
IOI stipulates that all questions "arising between the parties to a
proceeding on an application under Rule 97 or Rule 99" shall be H
334 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A 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 IO I if an
adjudication is warranted as a consequence of the resistance or ob-
struction made by him to the execution of the decree. No doubt if the
resistance was made by a transferee pendente lite of the judgement-
B
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
I 02. Exclusion of such a transferee from raising further contentions is
c based on the salutary principle adumbrated in Section 52 of the Trans-
fer of property Act.

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

The words "all questions arising between the parties to a proceed-
E ing on an application under Rule 97" would envelop only such ques-
tions as would legally arise for determination between those parties.'
In other words, the court is not obliged to determine a question merely
because of the resister raised it. The questions which the executing
court is obliged to determine under Rule IOI, must possess two
adjuncts. First is that such questions should have legally arisen be-
F tween the parties, and the seconC: is, such quesllions must be relevant
for consideration and determination between the parties, e.g., if the
obst~ctor admits that he is a transferee pendente lite it is not necessary
to determine a question rnised by him that he was unaware of the
litigation when he purchased the property. Similarly, a third party, who
G questions the validity of a transfer made by a decree-holder to an
assignee, cannot claim that the question regarding its validity should
be decided dming execution proceedings. Hence, it is necessary that
the questions raised by the resister or the obstructor must legally arise
between him and the decree-holder. In the adjudication process envis-
aged in Order 21 Rule 97(2) of the Code, the execution court can
H
N.S.S. NARAYANA SARMA '· GOLDSTONE EXPORTS (PJ LTD. [MOHAPATRA. J.] 335
decide whether the question raised by a resister or obstructor legally A
arises between the parties. An answer to the said question also would
be the result ~f the adjudication contemplated in the sub-section."

(Emphasis supplied)

Tracing the change in the statutory provisions brought about by the B
amendment of the CPC this Court in the case of Shreenath and Anr. v. R[liesh
and Ors., [1998] 4 SCC 543, made the following observations :

"Under sub-clause (I) Order 21 Rule 35, the executing court delivers
actual physical possession of the disputed property to the decree- c
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 21Rule36 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 conspiuous place of the said property and
D
proclaiming to the occupant by beat of drum or the customary mode
at some convenient ?lace, the substance of the decree in regard to the
property. In other words, the decree !.older gets the symbolic posses-
sion. Order 21 Rule 97 conceives of resistance of obstruction to the
possession of immovable property when made in execution of a decree E
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 tenant not party to the suit or even a stronger.
A decree-holder, in such a case, may make an application to the
executing court complaining such resistance for delivery of possession F
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 refer 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 G
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 expres-
sion "any person" under sub-clause ( 1) is used deliberately of widen- H
336 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A ing the scope of power so that the executing court could adjudicate the
claim made in any such application under Order 21Rule97. Thus by
the use of word "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.
B
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 itse(f to the long-drawn-out
arduous procedure of a fresh suit. This is to salvage the possible
c hardship both to the decree holder and the other person claiming title
on their own right to get adjudicated in the very execution proceed-
ings. 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 posses-
sion who is bound by a decree, while under Order 21 Rule 36 only
D symbolic possession is given where the tenant is in actual possession.
Order 21 Rule 97, as qforesaid, conceives of cases where delivery of
possession to the decree holder or purchaser is resisted by any person.
"Any person", as qforesaid, is wide enough to include even a person
not bound by a decree or claiming right in the property on his own
E including that ~fa tenant including a stranger.

xxx xxx xxx

So far sub-clause (I) of Rule 97 the provision is the same but after
the 1976 Amendment all disputes relating to the property made under
F Rules 97 and 99 are to be adjudicated under Rule IOI, 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
G 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 ~f any person
claiming right on his ou1n or as a tenant not party to the suit, such
person's right had to be adjudicated under Rule 99 and he need not
H fall back to file a separate suit. By this, he is saved from a long
N.S.S. NARA YANA SARMA "·GOLDSTONE EXPORTS (P) LID. [MOHAPATRA, J.] 337
litigation. So a tenant or any person claiming a right in the property A
on the own. If resists delivery of possession to the decree-ho!der, 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
B
with Rule 99 then by virtue qf Rule 103, as it then was, he was to.file
a suit to establish his right. But now '!fter the m#endment one need not
•' file suit even in such cases as all disputes are to be settled by the
executing court itse(f finally under Rule 101.

We find that both either under the old law or the present law, the C
right qf a tenant or any person claiming right on his own of the
property in case he resists, his objection under Order 21 Rule 97 has
to be decided by the executing court itse(f.

Rule 100 of the old law, as referred in the aforesaid Full Bench
decision of the Madhya Pradesh High Court is a situation different D
from what is covered by Rule 97. Under Rule 100 (old law) and Order
99, the new law covers cases where persons other than the judgment-
debtor is dispossessed of immovable property by the decree holder, of
course, sucl1 cases are also covered to be decided by the executing
court. But this will not defeat the right of such a peon to get his E
objection decided under Rule 97 which is a stage prior to his dispos-
session or a case where he is in possession. In other words, when such
person is in possession the adjudication to be under Rule. 97 and in case
dispossessed adjudication to be under Rule 100 (old law) and Rule 99
under the new law. Thus a person holding possession of an immovable
property on his own right can object in the execution, proceeding under
F
Order 21 Rule 97. One has not wait for his dispossession to enable him
to participate in the execution proceedings. This shows that such a
person can object and get adjudication when he is sought to be dispos-
sessed by the decree-holder. For all the aforesaid reasons, we do not
find the Full Bench in Usha Jain, AIR (1980) MP 146 correctly decided G
the law."

(Emphasis supplied)

This Court in the case of Anwatbi v. Pramod D.A. Joshi and Ors., [2000]
IO SCC 405, interpreting the provisions in Order 21Rules97 and 101 clarified H
338 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A the position that the obstructionist in possession can only be dispossessed in
accordance with law - person in possession of immovable property claiming
legal entitlement thereto and obstructing execution of decree for possession -
may not be dispossessed till his rights are adjudicated in appropriate proceed-
ings. The decree-holder cannot take possession unless such proceedings termi-
nate in his favour. This Court further held :
B
"Learned counsel for the appellant has contended that the appellant is
being repeatedly threatened with dispossession. We, therefore make it
clear that the possession of the appellant cannot be disturbed except
in accordance with law; and that in view of the obstruction raised by
c her to the execution of the said decree, the rights of the obstructionist
will have to be decided in appropriate proceedings, in accordance with
law. Unless and until such proceedings terminate in favour of the
decree-holder, the decree-holder cannot take possession and the appel-
lant is entitled to retain possession."

D From the principles laid down in the decisions noted above, the position
is manifest that when any person claiming title to the property in his possession
obstructing the attempt by the decree-holder to dispossess him from the said
property the executing Court is competent to consider all questions raised by
the persons offering obstruction against execution of the decree and pass
E appropriate order which under the provisions of Order 21 Rule 103 is to be
treated as a decree. From the averments made in the petition filed by the
appellants before the executing Court it is clear that they are claiming inde-
pendent right to the property from which they are sought to be evicted in
execution of the decree. It is the further case of the appellants that the·right in
the property had vested in them much prior to filing of the present suit the
F decree of such is under execution. It is to be kept in mind that the suit as
initially filed was a suit for partition simplicitor. In such a suit the High Court
in course of execution proceedings ordered delivery of possession. Whether
such a direction given in the suit is valid or not 1s a separate matter. We need
not say anything more on the question at present. As noted earlier, the learned
G single Judge and the Division Bench dismissed the petition filed by the appel-
lants as non-maintainable without entering into the merits of the case. The
Division Bench appears to have taken the view that since the appellants are
claiming the property through the Paigah Committee or the State Government,
who are parties in the suit, they are bound by the decree. The view taken by
H the Division Bench is unsustainable and does not at all stand scrutiny under
N.S.S. NARA YANA SARMA '· GOLDSTONE EXPORTS (P) LTD. [MOHAPATRA, J.] 339
law. It amounts to, if we may put it that way, begging the question raised in A
the petition filed by the appellants. At the cost of repetition, it may be stated
here that the appellants are claiming independent title to the property as the
transferees from the pattadars whose land did not vest in the State Government
under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar
Regulation Act, 1958. On a perusal of the orders passed by the single Judge
B
as well as Division Bench of the High Court, we are constrained to observe that
the said orders arc based on a complete mis-reading of the case of the appel-
.J
lants and mis-conception of the legal position relevant to the matter. Consid-
ering the facts and circumstances of the case, we are the view that the matter
should be remitted to the High Court for fresh consideration of the petitions
filed by the appellants by a single Judge at the first instance. C
Accordingly, the appeals are allowed. The order dated 28th December,
1995 of the learned single Judge in C.S. No. 14 of 1958 which was confirmed
by the Division Bench in the order dated 10th November, 1998 in O.S.A. Nos.
10, 11, 18, 20/1996 & 35, 36 and 37 of 98 (appealed from) is set aside and
the matter is remitted to the High Court for fresh consideration of the petitions
D
filed by the appellants and disposal in accordance with law. The matters shall
be placed before a single Judge of the High Court other than the learned Judge
who passed the order, at the first instance. The contesting respondents shall pay
to the appellants a sum of a Rs. 10,000 as costs of these appeals.
E
NJ. Appeals allowed.