Supreme Court of India
NOORDUDDINversusDR. K.L. ANAND
- Citation
- 1994 INSC 452
- Decided
- 6 October 1994
- Disposal
- Appeal(s) allowed
Holding
Under Order 21, Rule 97 of the Civil Procedure Code, the executing court must adjudicate the claim of a person asserting an independent right, title or interest in immovable property and cannot refuse on the basis of prior adjudication where no adverse finding against the claimant exists.
Summary
The appellant, Noorduddin, claimed an independent right, title and interest in land (Khasra No.179) that he alleged was part of his ancestral property and not covered by the sale of evacuee lands (Khasra Nos.13 and 14) to Dr. K.L. Anand. The respondent sought possession of the latter parcels under a decree, and the appellant resisted execution by filing an application under Order 21, Rules 97 and 98 of the Civil Procedure Code, 1908. The executing court dismissed the application, holding that the dispute had already been decided in earlier litigation, a view affirmed by the Delhi High Court on revision. The Supreme Court examined the scheme of Order 21, Rule 97, which obliges the court to adjudicate any claim of an independent right, title or interest, even where the claimant was not a party to the original suit, and found that no adverse finding against the appellant existed in the prior proceedings. Consequently, the Court held that the lower courts erred in refusing to entertain the application and set aside their orders, remitting the matter to the executing court to determine whether Khasra No.179 forms part of the sold parcels and to appoint a commissioner for demarcation. The appeal was allowed without costs.
Issues considered
- Whether the executing court and the High Court were correct in refusing to entertain an application under Order 21, Rule 97 on the ground that the dispute was already adjudicated.
- Whether a person asserting an independent right, title or interest in immovable property, who was not a party to the original suit or decree, can resist execution under Rule 97.
- Whether the court must adjudicate the claim and determine if Khasra No.179 is part of Khasra Nos.13 and 14.
- Whether the orders of the lower courts should be set aside and the matter remitted for adjudication under the CPC scheme.
Legislation cited
- Code of Civil Procedure, 1908s. Order 21 Rule 101, s. Order 21 Rule 103, s. Order 21 Rule 104, s. Order 21 Rule 97, s. Order 21 Rule 98, s. Section 151
- Displaced Persons (Compensation and Rehabilitation) Act, 1954s. Section 20
Subjects
execution proceedingsOrder 21 Rule 97independent right title interestevacuee propertydemarcationadjudicationpossessionCivil Procedure Code
Judgment
A NOORDUDDIN
v.
DR. K.L. ANAND
OCTOBER 6, 1994
B
[K. RAMASWAMY AND N. VENKATACHALA, JJ.]
Civil Procedure Code, 1908-0rder 21, Rule 97-Scheme unde,-Ex-
ecution proceedings-Application under Order 21, Rules 97 & 98-C/aim of
C independent right, title and interest in immovable property under execu-
tion-Court enjoined to adjudicate claim and record a finding.
The applicant's father - N, R and W are brothers. M and B, their
cousins migrated to Pakistan. Their properties were declared as evacuee
properties. The· competent authority passed an order separating the
D respective shares held by the evacuees as well as the father of the appellant,
R and W and allotted specific items to N. A, an auction of the evacuee
properties, the respondents was the highest bidder. Properties bearing
Khasra Salmi No. 13 and 14 were confirmed in favour of the respondent.
R & W challenged the said sales in Delhi High Court contending that the
properties sold pursuant to the declaration of those properties being
E evacuee were not, in fact, correct; they had interest in the sold properties
and that, therefore, the sale made in favour of the respondents was illegal.
The Writ Petition filed was dismissed and that order had become final.
Therein, though N was impleded as 5th respondent, no relref if any sort
was claimed against him. The respondent filed suit against R & W for
F possession of the properties bearing Khasra Salmi Nos. 13 & 14. The suit
was dismissed but on appeal, the Delhi High Court decreed the suit for
possession and the decree had become final.
Resisting the execution and delivery of possession, appellant made
G an application under Order 21, Rules 97 & 98 r/w S. 151 Civil Procedure
Code, contending that his father and members of bis family had not
migrated to Pakistan though the custodian had declared certain ancestral
properties to be evacuee properties which were later sold to the respondent
under Khasra Salmi Nos. 13 & 14. It was further alleged that the respon-
dent had obtained collusive decree against others, the land was not demar-
H cated and the land bears Khasra No. 179 and it is in his possession as
322
NOORDUDDIN v. K.L. ANAND 323
owner by virtue of his share in the ancesral property which never vested A
in the custodian nor it is sold to the respondent.
The executing Court dismissed the application on the ground that
the dispute was already adjudicated by the High Court. On revision, High
Court dismissed the revision holding that the controversy was concluded
in Writ Petition wherein the applicant's father was arrayed as respondent B
and that, therefore, he cannot make the objections. This appeal bas been
filed against the said order of the High Court.
The question for determination was whether the executing Court and
the High Court had properly appreciated the scheme under Order 21, Rule C
97 and declined to entertain and adjudicate the claim of the appellant.
Allowing the appeal, this Court
HELD 1.1. The scheme of the Civil Procedure Code clearly
adumbrates that when an application has been made under Order 21, Rnle D
97, Civil Procedure Code, the Court Is enjoin to adjudicate upon the right,
title and interest claimed in the property arising between the parties to a
proceeding or between the decree bolder and the person claiming inde·
pendent right, title or interest in the Immovable property and an order in
that behalf be made. The determination shall be conclusive between the E·
parties as if it was decree subject to right of appeal and not a matter to
be agitated by a separate snit. Thus, the scheme of the Code appears to be
to put an end to the protection of the execution and to shorten the litigation
between the parties or persons claiming right, title and interest in the
Immovable property In execution. [332·B·E]
F
1.2. The execution Court is enjoined to adjudicate the claim or the
objection or the claim to resistance. Rule 97, enables snch a person to make
an application which must be ;.. dependent of the judgment debtor or a
person having derivative right from the jndgment debtor. The applicant in
bis own right must be In possession of the property. Admittedly, neither the G
applicant nor his father was a party to the snit or appeal. Therefore, the
decree perforce does not bind him. In the writ proceeding, though bis father
'{was impleaded as 5th respondent, no relief was claimed against him nor
a finding adverse to him bas been recorded. Thereby, there is no adverse
finding recorded either in the suit or in the writ proceeding against the
appellant or bis father. Under these circumstances, when the appellant bas H
324 SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.
A been claiming right, title and interest in Kbasra No. 179 from which he is
now sought to be dispossessed in execution of the decree by the respondent
in respect of Kbasra Sakni Nos 13 & 14, the executing Court necessarily
has to go into the question whether the property in Kbasra No. 179 is part
of Kbasra Sakni Nos. 13 & 14 and if so, whether the respondent while
executing the property trenched into his property and sought to dispossess
B him. The appellant's possession, pending adjudication, needs to be
protected by interim orders. When the appellant claimed independent
right, title and interest and resisted the execution the decree holder or the
appellant made an application under Rule 97(1), the Court, in that event,
is enjoined to adjudicate the claim and record a finding allowing or reject·
C ing the claim. It should be remembered that the Parliament intended to
shorten the litigation and to give effect to it, simplified procedure was
devised for adjudication. On the basis of fact situation and the natnre of
the controversy, the claim has to be adjudicated expeditiously in a period
not exceeding six months. [333·C·H)
D 1.3. The Orders of the Courts below are set aside. The matter is
remitted to the executing Court to go into the question raised by the appel·
lant. The question of going into the boundaries and the extent of the land
covered by sale certificates which have become final cannot arise. The only
limited question is whether Kbasra No. 179 is part of Kbasra Sakni Nos.
E 13 & 14 and ifnot, whether in executing the decree the respondent is entitled
to take possession of Kbasra Survey No. 179. [334·A·CJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7466 of
1994.
From the Judgment and Order dated 11.7.94 of the Delhi High Court
F in C.R.P. No. 574 of 1994.
B.D. Sharma for the Appellant.
Rajiv Sawhney, Sanjeev Anand, R.P. Wadhwani and Mrs. Kajol
Chandra for the Respondent.
G
The following Order of the Court was delivered :
Leave granted.
The appellant's father-Nanu, Rehmatullah and Wazu are brothers.
H Munshi and Banda were their cousins. Munshi and Banda had migrated to
NOORDUDDIN v. K.L ANAND 325
Pakistan and their properties were declared as evacuee properties. By A
proceedings dated 12.3.56, the competent authority had passed an order
separating the respective shares held by the evacuees, Munshi and Banda
as well as the father of the appellant, Rehmatullah and Wazu had allotted
specific items to Nadu. At an auction held on April 14, 1%7 of the evacuee
properties, the respondent-Dr K.L. Anand had become the highest bidder
and sale certificates issued on September 26, 1968, are as follows :- B
"CERTIFICATE OF SALE
(FREEHOLD PROPERTIES)
RULE 90(15)
THIS IS TO CERTIFY that Shri K.L. Anand, s/o Shri Par- C
shotarn Dass Anand having given the highest bid of Rs. 4250
(Rupees four thousand two hundred and fifty only) as sale by
public auction held in pursuance of the powers conferred upon me·
under s. 20 of the Displaced Persons (compensation and
Rehabilitation) Act, 1954 (44 of 1954) on the 14th day of April D
1%7 of the property described in the Scheduled and his bid having
been accepted and the value thereof having been paid by bim in
cash/by adjustment of compensation due on his and his associate(s)
clai\n(s) has been declared the purchaser of the said property in
shares as mentioned below with effect from 14th day of June 1968.
E
Given under my hand and seal of my officer this 26th day of
September 1968.
SCHEDULE SHARES
Property Khasra Salmi No. 13 Full .
Village Kalu Sarai, New Delhi. F
bounded as under :
East : Mosque Gali
West : House of Shri Rehmatullah
North : Khasra Sakni No. 14
G
South : Gali
Sd/- Signature
Designation
Managing Officer/Asst!.
Custodian, New Delhi. H
326 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.
A Shri K.L. Anand, s/o Sh. Parshotam Dass Anand Shop No. 176,
Vinay Nagar, New Delhi.
Copies to:
1. Sub-Registrar, Kashmeri Gate, Delhi.
2. Asstt. Accounts Officer,
B 3. Central Board of Revenues, N.D.
4. Municipal Corporation of Delhi.
Signature
Designation. 11
c ****************
CERTIFICATE OF SALE
(FREEHOLD PROPERTIES)
RULE 90(15)
D
THIS IS TO CERTIFY that Shri K.L. Anand, S/o Shri Par-
shotam Dass having given the highest bid of Rs. 6050 (Rupees six
thousand and fifty only) at sale by public auction held in pursuance
of the powers conferred upon me under Section 20 of the Dis-
placed Persons (Compensation and Rehabilitation) Act 1954 (44
E of 1954) on the 14th day of April 1967 of the property described
in the Schedule and his bid having been accepted and the value
thereof having been paid by him cash/by adjustment of compensa-
tion due on his and his associate(s) claim(s) has been declared the
purchaser of the said property in shares as mentioned below with
F effect from 14th day of June 1968.
Given under my hand and seal of my office this 26th day of
Sept. 1968.
SCHEDULE SHARES
G
Property Khasra Salmi No. 14 Full
Vill~ge Kalu Sarai, New Delhi.
bounded as under :
· H East : Mosque and Gali
NOORDUDDIN v. K.L. ANAND 327
West : House of Shri Wazu A
North : Agriculture land
South : Khasra Sakni No. 13.
Sci/- M.L. Vij
Signature
Designation B
26.9.1968
Managing Officer/Asst!.
Custodian Office of the
Regional Settlement C
Commissioner, New Delhi.
To : Shri K.L. Anand
Shop No. 176
Vinay Nagar, New Delhi."
D
******************
No. RSCD(MO)/Auc/PN/Khasra No.13/Kalu Sari!D/5178
Govt. of India,
Min. of Labour Employment and Rehabilitation, E
Office of Regional Settlement Commr. (MW),
Jarnnagar House, New Delhi.
CORRIGENDUM 25.10.69
Subject : Regarding Khasra Sakni No.13, Village Kalu Sari, F
New Delhi.
In the certificate of sale executed on 26.9 .68 in favour of Shri
K.L. Anand, s/o Shri Parshotam Dass in respect of Khasra Sakni
No. 13, Village Kalu Sari, New Delhi, the boundaries may be read G
as under:-
East : House of Shri Rehmatullah
West : Mosque and Gali
North : Khasra Sakni No. 14
South : Gali. H
328 SUPREME COURT REPORTS (1994] SUPP.4S.C.R.
A Given under my hand and seal of my office this day 24th
October, 1969.
Sd/- M.L. Vij
Managing Officer/Asst. Custodian
B To,
Shri K.L. Anand, son of Shri Parshotam Dass
Shop No. 176, Vinay Nagar, New Delhi.
Copy to : Sub-Registrar, Asaf Ali Road, New Delhi.
c (MANAGING OFFICER)"
••••••••••••••••••
No. RSCD/MO(AUC)!PN/Kh. No. 14/Kalu Sari/D/5180
D Govt. of India,
Min. of Labour Employment and Rehabilitation,
Office of Regional Settlement Commr. (MW),
Jamnagar House, New Delhi.
CORRIGENDUM 25.10.69
E
Sub : Regarding Khasra Sakni No. 14, Village Kalu Sari, New Delhi
In the certificate of sale executed on 26.9.68 in favour of Shri
K.L. Anand son of Shri Parshotam Das in respect of Khasra Sakni
No. 14, Village Kalu Sar~ New Delhi, the boundaries may be read
F
as under:-
East : House of Shri Wazu
West : Mosque and Gali
North : Agriculture land.
G South : Khasra Sakni No. 13.
Given under my hand and seal of my officer this day 24th
October, 1969.
Sd/- M.L. Vij
H Managing Officer
NOORDUDDIN v. KL.ANAND 329
To, A
Shri K.L. Anand,
Shop No. 176, Vinay Nagar,
New Delhi
Copy to: Sub-Registrar, Asaf Ali Road, Delhi. B
(Managing Officer)"
Thus, the properties bearing Khasra Sakni Nos. 13 and 14 were
confirmed in favour of the respondent. Rehrnatullah and Wazu challenged
the said sales in W.P. No. 960/69 in Delhi High Court contending that the C
properties sold pursuant to the declaration of those properties being
evacuee on February 6, 1956 were not, in fact, correct; they had interest in
the sold properties and that, therefore, the sale made in favour of the
respondent was illegal. The writ petition came to be dismissed by the
learned Single Judge whic h was affirmrd by the DiVision Bench in LPA D
No. 95ns by order dated September 14, 1982. That order had become final.
Therein, though Nanu was impleaded as 5th respondent, no relief of any
sort was claimed against him nor any finding adverse to him in that behalf
was recorded. In the meanwhile, the respondent had filed Suit No. 210no
in the District Court, Delhi, against Rehrnatullah and Wazu for possession E
of the properties bearing Khasra Sakni Nos. 13 and 14 as indicated herein-
before. Though· the suit was dismissed, on appeal in RFA No. 305/86, the
Division Bench of the Delhi High Court decreed the suit for possession
and the decree had become final.
Therefore, now in execution, the respondent sought to take posses- F
sion of the properties in Khasra Sakni Nos. 13 and 14. Resisting the
execution and delivery of possession, the appellant made an application
under Order 21, Rules 97 and 98 read with Section 151 of CPC contending
that his father and members of his family had not migrated to Pakistan
though the Custodian had declared certain ancestral properties to be
evacuee properties of Munshi and Banda which .were later sold to the G
respondent under Khasra Sakni Nos. 13 and 14; Dr. Anand has obtained
collusive decree against others; the land was not demarcated; the land
bears Khasra No. 179 and in accordance with the Chijra Akshi, it is in his
possession as. an owner by virtue of his share in the ancestral property
separated by the competent authority which never vested in the custodian H
330 SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.
A nor it is sold to the respondent.
The executing court dismissed the application on the ground that the
dispute was adjudicated by the High Court in RFA No".305/86 and that,
therefore, the claim is no longer tenable. On revision, in the impugned
order dated 11.7.94, the learned Single Judge dismissed the revision hold-
B ing that the controversy was concluded in W.P. No. 960/69 wherein the
appellant's father was arrayed as respondent and that, therefore, he cannot
make the objections. Hence this appeal.
The question, therefore, is whether the executing court and the High
C Court had properly appreciated the scheme under Order 21, Rule 97 and
declined to entertain and adjudicate the claim of the appellant?
Order 21, Rule 97 provides thus :-
''Rule 97 • Resistance or abstraction to possession of immovable
D property· (1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold in
execution of a decree is resisted or obstructed by any person in
obtaining possession of the property, he may make an application
to the court complaining of such resistance or obstruction.
E (2) Where any application is made under sub-rule (1), the court
shall proceed to adjudicate upon the application in accordance
with the provisions; herein contained."
"Rule 98 · Orders after adjudication · Upon the determination of
the questions referred to in Rule 101, the court shall, in accordance
F with such determination and subject to the provisions of sub-rule
(2):
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or dismiss·
G ing the the application; or
(b) pass such other order as, in the circumstances of the case,
it may deem fit.
(2) Where, upon such determination, the court is satisfied that the
H resistance or obstruction was occasioned without any just cause by
NOORDUDDIN v. K.L. ANAND 331
the judgment-debtor or by some other person at his instigation or A
on his behalf, or by any transferee, where such transfer was made
during the pendency of the suit or execution proceeding it shall
direct that the applicant be put into possession of the property,
and where the applicant is still resisted or obstructed in obtaining
possession, the court may also, at the instance of the applicant, B
order the judgment-debtor or any person acting at his instigation
or on his behalf, to be detained in the civil prison for a term which
may extend 'to thirty days."
"Rule JOO - Order to be passed upon application complaining of
dispossession - Upon the determination of the questions referred C
to in Rule 101, the court shall in accordance with such determina-
tion -
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or dismiss-
ing the application; or D
(b) pass such order as, in the circumstances of the case, it may
deem fit."
"Rule JO I - Question to be determined - All qnestions (including E
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 adjudica-
tion of the application shall be determined by the court dealing
with the application and not by a separate suit and for this purpose,
the court shall, notwithstanding anything to the contrary contained F
in any other law for the time being in force, be deemed to have
jurisdiction to decide such questions.'
"Rule 103. Orders to be treated as decrees - Where any application
has been adjudicated upon under Rule 98 or Rule 100, the order G
made thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as is if it were a decree.
Rule 104. Order under Rule 101 or Rule 103 to be subject to the
result of pending suit- Every order made under Rule 101 or Rule
103 shall be subject to the result of any suit that may be pending H
332 SUPREMECOURTREPORTS [1994] SUPP. 4S.C.R.
A on the date of commencement of the proceeding in which such
order is made, if in such suit the party against whom the order
under rule 101 or Rule 103 is made has sought to establish a right
which he claims to the present possession of the property."
Thus, the scheme of the Code clearly adumbrates that when an
B
application has been made under Order 21, Rule 97, the court is enjoined
to adjudicate upon the right, title and interest claimed in the property
arising between the parties to a proceeding or between the decree-holder
and the person claiming independent right, title or interest in the immov-
able property and an order in that behalf be made. The determination shall
C be conclusive between the parties as if it was a decree .subject to right of
appeal and not a matter to be agitated by a separate suit. In other words,
no other proceedings were allowed to be taken. It has to be remembered
that preceding CPC Amendment Act, 1976, right of suit under Order 21,
Rule 103 of 1908 Code was available which has been now taken away. By
D necessary implication, the legislature relegated the parties to an adjudica-
tion of right, title or interest in the immovable property under execution
and finality has been accorded to it. Thus, the scheme of the Code appears
to be to put an end to the protraction of the execution and to shorten the
litigation between the parties or persons claiming right, title and interest
in the immovable property in execution.
E
Adjudication before execution is an efficatious remedy to prevent
fraud, oppression, abuse of the process of the court or miscarriage of
justice. The object of law is to meet out justice. Right to the right, title or
interest of a party in the immovable property is a substantive right. But the
F right to an adjudication of the dispute in that behalf is a procedural right
to which no one has a vested right. The faith of the people in the efficacy
of law is the saviour and succour for the sustenance of the rule of law. Any
weakening like in the judicial process would rip apart the edifice of justice
and create a feeling of disillusionment in the minds of the people of the
very law and courts. The rules of procedure has been devised as a channel
G or a means to render substantive or at best substantial justice which is the
highest interest of man and almarneter for the mankind. It is a foundation
for orderly human relations. Equally the judicial process should never
become an instrument of oppression or abuse or a means in the process
.of the court to subvert justice. The court has, therefore, to wisely evolve its
H process to aid expeditious adjudication and would preserve the possession
NOORDUDDIN v. KL.ANAND 333
of the property in the interregnum based on factual situation. Adjudication A
under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua
non to a finality of the adjudication of the right, title or interest in the
immovable property under execution.
The question is whether the executing court was right in dismissing B
the application on the ground that the dispute was adjudicated in RFA No.
305/86 or as held by the High Court that the dispute was decided in the
writ proceedings referred to earlier. The execution court is enjoined to
adjudicate the claim or the objection or the claim to resistance. As seen,
Rule 97 enables such a person to make an application which must be
independent of the judgment-debtor or a person having derivate right from C
the judgment-debtor. The applicant in his own right must be in possession
of the property. Admittedly, neither the appellant nor his father was a party
to the suit or appeal. Therefore, the decree per force does not bind him.
In the writ proceedings, though Nanu was impleaded as 5th respondent,
no relief was claini.ed ~gains! him nor a finding adverse to him has been D
recorded. Thereby, there is no adverse finding recorded either in the suit
or in the writ proceedings against the appellant or his father. Under these
circumstances, when the appellant has been claiming right, title and inter-
est in Khasra No. 179 from which be is now sought to be dispossessed in
execution of the decree by the respondent in respect of Kbasra Sakni Nos.
13 and 14, the executing court necessarily has to go into the question E
whether the property in Kbasra No. 179 is part of Khasra Sakni Nos. 13
and 14 and if so, whether the respondent while executing the decree
tranched into his property and sought to dispossess him. The appellant's
possession, pending adjudication, needs to be protected by interim orders.
Unfortunately, the Courts below had not adverted to these crucial aspects F
of the matter. When the appellant claimed independent right, title ·and
interest and resisted the execution, the decree- holder or the appellant
should make an application under Rule 97(1) and the court, in that event,
is enjoined to adjudicate the claim .and record a finding allowing or
rejecting the claim. It should be remembered that the Parliament intended G
to shorten the litigation and to give effect to it, simplified procedure was
devised for adjudication. On the basis of fact-situation and the nature of
the controversy, the claim bas to be adjudicated expeditiously in a period
not exceeding six months and preferably on day to day basis by putting an
end to the tendentious conduct of prolonging the proceedings by suitable
orders. · H
334 SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.
A The orders of the courts below are accordingly set aside. The matter
is remitted to the executing court to go into the question raised by the
appellant. In the nature of the dispute, a Commissioner may be appointed
by the court by issuing a warrant to demarcate the respective properties in
Khasra Sakni Nos. 13 and 14 and Khasra No. 179 as claimed by the
appellant, to find whether Khasra No. 179 is part of the Khasra Salmi Nos.
B 13 and 14 or independent of the latter. From the averments in the S.L.P.
as well as in the petition filed before the executing court, the appellant had
not made claim in respect of the Khasra Salmi Nos. 13 and 14. Therefore,
the question of going into the boundaries and the extent of the land
covered by sale certificates which have become final cannot arise. As stated
C earlier, the only limited question is whether Khasra No. 179 is part of
Khasra Salmi Nos. 13 and 14 and if not, whether in executing the decree
the respondent is entitled to take possession of Khasra Survey No. 179.
In this view, it may be open to the respondent to make an application
to the executing court to appoint a Commissioner for demarcating the
D respective properties and for submitting a r~port and plan in that behalf
according to rules. The executing court is directed to dispose of this
application within a period of six months from the date of the receipt of
this order.
The appeal is accordingly allowed, but in the circumstances without
E costs.
A.G. Appeal allowed.
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