SAMEER SINGH AND ANOTHERversusABDUL RAB AND OTHERS

                       [2014] 10 S.C.R. 1004


A                SAMEER SINGH AND ANOTHER
                                  V.
                    ABDUL RAB AND OTHERS
                  (Civil Appeal No. 9699 of 2014)
                        OCTOBER 14, 2014
B
         [DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

        Constitution of India, 1950:

c       Art. 227 - Scope of - Order of executing court holding
  the application under 0.21, rr.97, 99 and 101 as not
  maintainable on the ground that the said court had become
  functus officio - The said order cannot earn the status of a
  decree as there has been no adjudication - If a subordinate
  court exercises its jurisdiction not vested in it by law or fails
0
  to exercise the jurisdiction so vested, such an order is
  revisable u/s 115 CPC and after amendment w.e.f 1. 7.2002,
  the said power is exercised under Art. 227 - Appellants had
  rightly invoked the jurisdiction of High Court under Art. 227
  assailing the order passed by executing court on the
E foundation that it had failed to exercise the jurisdiction vested
  in it - Code of Civil Procedure, 1908 - s. 115.

        Code of Civil Procedure, 1908:

F       0. 21, rr. 99 to 103- Execution of ex-parte decree - Power
  of executing court - Application filed by stranger claiming
  right, title and interest in the property subject matter of
  execution - Execution court has the authority to adjudicate
  all the questions pertaining to right, title or interest in the
G property arising between the parties - It also includes the claim
  of a stranger who apprehends dispossession or has already
  been dispossessed from the immovable property.

        Allowing the appeal, the Court

H                               1004
           SAMEER SINGH v. ABDUL RAB                    1005


     HELD: 1.1. The executing court has the authority to        A
adjudicate all the questions pertaining to right, title or
interest in the property arising between the parties. It also
includes the claim of a stranger who apprehends
dispossession or has already been dispossessed from
the immovable property. The self-contained Code, as has         B
been emphasised by this Court, enjoins the executing
court to adjudicate the lis and the purpose is to avoid
multiplicity of proceedings. It is also so because prior to
1976 amendment the grievance was required to be
agitated by filing a suit but after the amendment the entire    c
enquiry has to be conducted by the executing court.
[para 21] [1018-F-H; 1019-A]

     Babula/ v. Raj Kumar and Others               1996
(2) SCR 763 =1996 (3) SCC 154; Ghasi Ram and Others v.
Chait Ram Saini and others 1998 (3) SCR 863 = 1998 (6)          D
SCC 200; and Ram Kumar Tiwari and Others v. Deenanath
and Others AIR 2002 Chhattisgarh 1; S. Rajeswari v. S.N.
Kulasekaran and Others 2006 (3) SCR 610 = 2006
(4) SCC 412; Noorduddin v. Dr. K.L. Anand 1994 (4)
Suppl. SCR 322 =1995 (1) SCC 242; Bhan war Lal v.               E
Satyanarain and Another 1994 (4) Suppl. SCR 208 =1995
(1) SCC 6; Brahmdeo Chaudhary v. Rishikesh Prasad
Jaiswal and another 1997 (1) SCR 463 =1997 (3) sec 694-
referred to.
                                                                F
     1.2. Rule 103 of 0.21, CPC clearly stipulates that
when an application is adjudicated upon under r.98 or
r.100 the said order shall have the same force as if it were
a decree. Thus, it is a deemed decree. If a court declines
to adjudicate on the ground that it does not have               G
jurisdiction, the said order cannot earn the status of a
decree. In the instant case, the executing court has
expressed an opinion that it has become functus officio
and, as such, it cannot initiate or launch any enquiry. The
appellants had rightly invoked the jurisdiction of the High
                                                                H
    1006    SUPREME COURT REPORTS             [2014) 10 S.C.R.


A Court under Art. 227 of_ the Constitution assailing the
  order passed by the executing court on the foundation
  that it had failed to exercise the jurisdiction vested in it.
  [para 21) [1019-A-D]

       1.3. Whether the executing court, in the obtaining
8
  circumstances, has correctly expressed the view that it
  has become functus officio or not and thereby it has
  jurisdiction or not, fundamentally pertains to rectification
  of a jurisdictional error. It is so as there has been no
  adjudication. If a subordinate court exercises its
C jurisdiction not vested in it by law or fails to exercise the
  jurisdiction so vested, the said order u/s 115 of the Code
  is revisable. After the amendment of s.115, C.P.C. w.e.f.
  1.7.2002, the said power is exercised under Art. 227 of the
  Constitution. [para 22) [1019-E-F; 1020-A]
D
       Surya Dev Rai v. Ram Chander Rai and others 2003
  (2) Suppl. SCR 290 = 2003 (6) SCC 675; Joy Chand Lal
  Babu v. Kamalaksha Chaudhury and others AIR 1949 PC
  239; Keshardeo Chamria v. Radha Kissan Chamria and
E others 1953 SCR 136 =AIR 1953 SC 23 and Chaube Jagdish
  Prasad and another v. Ganga Prasad Chaturvedi 1959
   Suppl. SCR 733 =AIR 1959 SC 492 - relied on.

      1.4. The High Court has fallen into error by opining
F that the decision rendered by the executing court is a
  decree and, therefore, an appeal should have been filed.
  The impugned order is set aside. The High Court shall
  decide the matter as necessary under Art. 227 of the
  Constitution. [para 23] [1020-C-D]             ·

G                       Case Law Reference:
        1996 (2) SCR 763           referred to        para 11
        1998 (3) SCR 863           referred to        para 11
        AIR 2002 Chhattisgarh 1 referred to           para, 11
H
           SAMEER SINGH v. ABDUL RAB                      1007


    2006 (3) SCR 610             referred to          para 12      A
    1994 (4) Suppl. SCR 322 referred to               para 16
    1994 (4) Suppl. SCR 208 referred to               para 17
    1997 (1) SCR 463             referred to          para 20      B
    2003 (2) Suppl. SCR 290 relied on                 para 22
    AIR 1949 PC 239              relied on            para 22
    1953 SCR 136                 relied on            para 22
                                                                   c
    1959 Suppl. SCR 733          relied on            para 22

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9699 of 2014.

    From the Judgment and Order dated 22.06.2011 in WPC            D
No. 348 of 2011 of the High Court of Jharkhand at Ranchi.

    Saurabh S. Sinha, Arijit Mazumdar, Abhinav Mukerji for the
Appellants.

    Jayesh Gaurav, Amarendra Kr. Singh, T. Mahipal for the         E
Respondents.

    The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Leave granted.
                                                                   F
     2. The Universal Construction Company, the respondent
No. 3 herein, instituted Civil Suit No. 480 of 1971 in the High
Court of Calcutta invoking its original civil jurisdiction for
realization of a sum of Rs.2, 15,289.28 paise from the Engineers
Syndicate (India) Private Limited, the 4th respondent herein,      G
and an ex parte decree was passed in the suit. After obtaining
the decree, respondent No. 3 assigned the same in favour of
Abdul Rab, respondent No. 1 herein, on 20th May, 2005. After
the deed of assignment was given the formal shape, the 1st
respondent moved the High Court of Calcutta and got the said       H
    1008     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   decree transferred to the Court of Sub Judge-I, Jamshedpur for
    execution by way of attachment and sale of immovable
    properties of the 4th respondent situated within the jurisdiction
    of the executing Court. Thereafter, the 1st respondent filed an
    execution case against the 4th respondent. A schedule of
B   property was attached to the execution petition.

       3. As the factual matrix would unfurl, the executing court
  after receipt of the decree on 23.8.2006 issued notice to the
  4th respondent by registered post and when the service was
  not effected, mode of publication was taken recourse to for
C appearance of the judgment-debtor. Eventually, the execution
  case was fixed for ex parte hearing on 9.3.2007 on the petition
  of the assignee-decree-holder. After following the procedure,
  the scheduled property was put up for sale by way of auction
  and ultimately Abdul Rafai, respondent No. 2, purchased the
D property and pursuant to the order of the Court took over
  possession of the said immovable property.

       4. As the factual narration would further undrape, at the
  said juncture, the present appellants filed an application under
E Order XX.I, Rules 97, 99 and 101 of the Code of Civil Procedure
  (C.P .C.) contending, inter alia, that the disputed property
  originally belonged to the 4th respondent who had borrowed a
  sum of Rs.14,571/- from his deceased father, Gopal Singh, by
  depositing the sale deeds of the said property on 18.2.1971
F at Calcutta and had delivered possession of the said property
  to Gopal Singh on 192.1971 in lieu of interest of said borrowed
  amount. When he failed to pay the borrowed sum, the 4th
  respondent agreed to transfer the said property for a
  consideration of Rs.25,000/- to Gopal Singh after adjusting the
G borrowed amount i.e. Rs.14,571/-. Regard being had to the said
  arrangement, Gopal Singh .had paid the balance amount of
  Rs.10,429/- and accordingly an agreement for sale was
  executed. When the 4th respondent did not honour his part of
  the contract, Gopal Singh instituted Title Suit No. 43 of 1974 in
  the Court of Sub Judge-I, Jamshedpur against the 4th
H
            SAMEER SINGH v. ABDUL RAB                       1009
                 [DIPAK MISRA, J.]

respondent and eventually the said suit was decreed by the           A
Second Additional Sub Judge-I on 14.5.1977. Thereafter, a
case was filed and in pursuance of the decree a sale deed was
executed on 10.10.1982 in favour of the father of the appellants
through Court and he was put in possession through Nazir of
the Civil Court in respect of the property in question, and after    B
the demise of Gopal Singh, the appellants, being sons, inherited
the said property and remained in possession having right, title
and interest till 27.4.2008 when all of a sudden, respondent No.
2 through the help of Nazir took delivery of the property after
dispossessing the appellants therefrom. On an inquiry being          c
made, they came to know under what circumstances they had
been dispossessed by the Nazir. The application further
asserted that the schedule of property which had been
appended to Execution Case No. 24 of 2006 had been
deliberately added though the 4th respondent had no concern          0
with the same. It was also put forth that an order of attachment
was published in a local daily 'Uditwani' dated 23.10.1982 in
respect of the scheduled property by the High Court of Calcutta
in Suit No. 480 of 1971 and the father of the appellants coming
to know of the same had filed an objection before the High           E
Court which after considering the objection and taking note of
the right, title and interest of the father of the appellants had
released the said property from attachment but the 1st
respondent by suppressing all the facts got the said schedule
of property attached and put the same in auction and
respondent No. 2 who was set up by the respondent No.1               F
became the purchaser of the property. In essence, it had been
pleaded that respondent Nos. 1 and 2 had colluded to put the
property to auction which did not belong to the respondent No.
4 and was not meant for attachment and sale, for it had been
already released by the High Court of Calcutta and, in any case,     G
the respondent No. 4 had no concern with the said property. In
 the application it was prayed that the appellants, the applicants
 in the court below, should be put in possession of the scheduled
 property and the respondents be restrained from changing the
                                                                     H
    1010     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   nature and character of the property till the adjudication of the
    application.

         5. The said application was resisted by respondent Nos.
    1 and 2, the opposite parties No. 1 and 2 before the executing
    court, on many a ground and basically reasseverating the facts
8
    how the decree had been passed by the High Court of Calcutta
    and how there had been a deed of assignment and further the
    fairness of procedure adopted in putting the property to auction
    and the eventual sale.

C        6. The executing court framed two issues which read as
    follows:-

        "I. Whether the transferee executing court has jurisdiction
        to adjudicate the present petition filed by the applicants
o       under order XXI rules 97, 99 and 101 C.P.C.?

        II. Whether the applicants are entitled to get as relief in
        claim in their application?"

       7. The executing court noted the submissions of both the
E parties, referred to the order passed by the High Court of
  Calcutta transferring the decree for execution, adverted to the
  provisions under Sections 39 to 42 of C.P.C., placed reliance
  on certain authorities as regards the limitation on the powers
  of the transferee court under Section 42 of C.P.C., recorded
F the fact that it had already dismissed the execution case to the
  full satisfaction of the decree-holder on 19.12.2008 and
  informed the same to the Registrar of the High Court of
  Calcutta, and eventually came to hold that it had no jurisdiction
  to reopen and discuss the matter pertaining to the title of the
G parties in execution case at the instance of a third party. In that
  backdrop, it observed that the executing court had become
  functus officio and could not entertain the application. Adverting
  to the second issue, the executing court noted the contentions
  and referred to the authorities earlier cited but ultimately opined
H that as a finding had been recorded to the effect that the
            SAMEER SINGH v. ABDUL RAB                       1011
                 [DIPAK MISRA, J.]

transferee-executing court had no jurisdiction to entertain the     A
petition, regard being had to the fact that the decree he .. been
executed to the full satisfaction and an intimation had been sent
to the Registrar of the Calcutta High Court, the controversy
raised could not be dealt with and no relief could be granted.
                                                                B
     8. The aforesaid order came to be assailed before the
High Court in W.P.C. No. 348 of 2011 under Article 227 of the
Constitution of India. A preliminary objection was raised on
behalf of the 1st respondent that an order passed urider Order
XXI, Rule 98 to 100 of C.P.C. is a decree as per the provisions C
contained under Order XXI, Rule 103 of C.P.C. and, therefore,
an appeal would lie and the writ petition was not maintainable.
The preliminary objection was resisted by proponing a
contention that only those orders which adjudicate the dispute
between the parties would be treated as decree but as in the
case at hand, the Court had not decided the lis in question as D
it had expressed an opinion that it had no jurisdiction after
having become functus officio, an appeal would not lie.

    9. The learned Single Judge accepted the preliminary
objection on the foundation that dispute between parties            E
regarding jurisdiction of executing court could be determined
under Order XXI, Rule 100 of C.P.C. and that when a decision
had been rendered on that score it would be a deemed decree
under Order XXI, Rule 103 of C.P.C. and hence, the writ petition
was not maintainable. Expression of aforesaid view entailed         F
dismissal of the writ petition. Hence, the present appeal by
special leave.

      10. We have heard Mr. Saurabh S. Sinha, learned counsel
for the appellants and Mr. Jayesh Gaurav, learned counsel for
the respondents.                                                    G

     11. Assailing the impugned order it is contended by Mr.
Sinha that the learned Single Judge has failed to appreciate
the language employed in Order XXI, Rules 97 to 103 which
commands the executing court to adjudicate the controversy          H
    1012       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   pertaining to all the aspects and, therefore, when the executing
    Court has only opined that it has become functus officio, the
    said order cannot be treated as a decree. It is urged by him
    that the said order tantamounts to refusal of exercise of
    jurisdiction duly vested in a Court and, therefore, such an error
s   has to be rectified in exercise of the power of superintendence
    by the High Court under Article 227 of the Constitution of India.
    It is his further submission that the view expressed by the High
    Court is fallacious as far as its understanding of the ratio of the
    decision in Babula/ v. Raj Kumar and Others1• To pyramid the
c   submission that there ha'S to be an adjudication as warranted
    in law, learned counsel has placed reliance on Ghasi Ram and
    Others v. Chait Ram Saini and others2 and Ram Kumar Tiwari
    and Others v. Deenanath and Others3.

          12. Mr. Jayesh Gaurav, learned counsel appearing for the
D   respondents in support of the order passed by the High Court
    has contended that when the executing court had clearly
    expressed the view that it has no jurisdiction to embark upon
    the issues as required to be gone into under Order XXI, Rules
    97 to 103 of C.P.C., there was no necessity to proceed further
E   and it would be a travesty of justice if it is construed that when
    there has been no adjudication of an application on behalf of
    a third party it would not be a decree. It is canvassed by him
    that adjudication does not necessarily mean to record evidence
    and deal with the issue of right, title and interest to make the
F   order a deemed decree as stipulated under Order XXI, Rule
    103. It is urged by him that when finality is given to the objection
    it assumes the character of a decree as envisaged under Order
    XXI, Rule 103 and, therefore, the reasons ascribed by the High
    Court cannot be faulted. In support of his contention, learned
G   counsel has commended us to the authority in S. Rajeswari v.
    S.N. Ku/asekaran and Others".
    1.   (1996) 3 sec 154.
    2.   (1998) 6 sec 200.
    3.   AIR 2002 Chhatlisgarh 1.
H   4.   c2oosi 4 sec 412.
           SAMEER SINGH v. ABDUL RAB                    1013
                [DIPAK MISRA, J.]

      13. To appreciate the submissions raised at the Bar, it is A
necessary to appreciate the whole gamut of provisions
contained in Order XXI, Rules 97 to 103 of CPC and the
fundamental objects behind the same. Rule 97 deals with
resistance or obstruction to possession by the holder of a
decree for possession or the purchaser of any such property B
sold in execution of a decree. It empowers such a person to
file an application to the Court complaining of such resistance
or obstruction and requires the Court under sub-rule (2) to
adjudicate upon the application in accordance with the
provisions provided therein. Rule 99 deals with dispossession . c
by decree-holder or purchaser. It stipulates that 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 0
make an application to the Court complaining of such
dispossession. The Court is obliged to adjudicate such an
application. Thus this rule, as is manifest, includes any person
other than the judgment-debtor. Rule 101 deals with the
questions to be determined. It provides that all questions
                                                                 E
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 an application and not by
a separate suit and for the said purpose, the executing court F
has been conferred the jurisdiction to decide the same. Rule
100 deals with orders to be passed upon application
complaining of dispossession. It is apt to reproduce the said
rule:-
                                                                 G
      "Rule 100. Order to be passed upon application
      complaining of dispossession.- Upon the determination
      of the questions referred in Rule 101, the Court shall, in
      accordance with such determination,-
                                                                H
    1014         SUPREME COURT REPORTS             [2014) 10 S.C.R.


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

           (b)     pass such order as, in the circumstances of the
                   case, it may deem fit."
B
        14. Rule 98 deals with orders after adjudication. Sub-rule
  (1) provides that upon the determination of questions referred
  to in Rule 101, the Court in accordance with determination and
  subject to provisions of sub-rule (2) therein make an order
C allowing the application and directing that the applicant be put
  in possession of the property or dismissing the application or
  pass such other order, as in the circumstances of the case it
  may deem fit. As far as sub-rule (2) is concerned, the same is
  not necessary to be taken note of for the purposes of present
D case. Rule 103 which is significant reads as follows:-

        " Rule 103. Orders to be treated as decrees.- Where
        any application has been adjudicated upon under Rule 98
        or Rule 100, the order made thereon shall have the same
        force and be subject to the same conditions as to an
E
        appeal or otherwise as if it were a decree."

       15. The submission of the learned counsel for the
  appellants is that if the scheme underlying the said Rules is
  appositely appreciated, it is clear as crystal that the legislature
F in order to avoid multiplicity of proceedings has empowered
  the executing court to conduct necessary enquiry and adjudicate
  by permitting the parties to adduce evidence, both oral and
  documentary, and to determine the right, title and interest of the
  parties and, therefore, such an order has been given the status
G of a decree. As has been put forth by him, a proceeding in
  terms of Rule 97 or Rule 99 is in the nature of a suit and the
  adjudication is similar to that of a suit and when in the case at
  hand, the Court has declined to embark upon any enquiry by
  calling for reply, recording evidence and appropriately
H adjudicating the controversy, the order passed cannot be
             SAMEER SINGH v. ABDUL RAB                      1015
                  [DIPAK MISRA, J.]

regarded under Rule 103 of Order XXI as a decree. In this            A
context, the authorities that have been commended to us need
to be carefully noticed.

     16. In Noorduddin v. Dr. K.L. Anancf', the executing court
had rejected the application of the appellant therein on the         B
ground that the High Court had already adjudicated the lis.
Analysing the language employed in Rules 97, 98 and 100 to
104, the Court held:-

     "Thus, the scheme of the Code clearly adumbrates that
     when an application has been made under Order 21, Rule          C
     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 immovable property and an order in that behalf be           D
     made. The determination shall 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 Civil Procedure             E
     Code Amendment Act, 1976, right of suit under Order 21,
     Rule 103 of 1908 Code was available which has been now
     taken away. By necessary implication, the legislature
     relegated the parties to an adjudication of right, title or
     interest in the immovable property under execution and          F
     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."                               G

    Elucidating further, the Court opined that adjudication
before execution is an efficacious remedy to prevent fraud,
oppression, abuse of the process of the court or miscarriage

5.   (1995) 1 sec 242.                                               H
    1016     SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A   of justice. The object of law is to meet out justice and, therefore,
    adjudication under Order XXI, 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.
B
          17. In Babula/ (supra), the appellant apprehending that it
    would be dispossessed in an execution proceeding had filed
    an application based on possessory title and obtained interim
    injunction. He had also filed an application stating, inter a/ia,
    that he should not be dispossessed. His objection was
C   overruled by the executing court holding that since he had not
    been dispossessed, an application under Order XXI, Rule 98
    was not maintainable. The said view was affirmed by the High
    Court in Civil Revision Petition. The Court while interpreting the
    Order XXI, Rules 98 to 102 referred to the decision in Bhanwar
D   Lal v. Satyanarain and Anothe~ and opined that it is clea·r that
    an adjudication is required to be conducted under Order XXI,
    Rule 98 before removal of the obstruction caused by the
    objector or the appellant and a finding is required to be
    recorded in that behalf. The Court ruled that the order is treated
E   as a decree under Order XXI, Rule 103 and it is subject to an
    appeal. It has been observed in the said case that prior to 1976,
    the order was subject to suit, but under the amended Code, right
    of suit under Order XXI, Rule 63 of old Code has been taken
    away, and the determination of the question of the right, title or
F   interest of the objector in the immovable property under
    execution needs to be adjudicated under Order XXI, Rule 98
    which is an order and is a decree under Order XXI, Rule 103
    for the purpose of appeal subject to the same conditions as to
    an appeal or otherwise as if it were a decree. The Court further
G   opined that the procedure prescribed is a complete code in
    itself and, therefore, the executing court is required to
    determine the question.

         18. In Ghasi Ram and Others (supra) while making a
H 6. (1995)) 1 sec 6.
              SAMEER SINGH v. ABDUL RAB                       1017
                   [DIPAK MISRA, J.]

distinction between the provisions prior to the amendment             A
brought in 1976 in CPC and the situation after the amendment,
a two-Judge Bench observed thus:-

       "The position has changed after amendment of the Code
       of Civil Procedure by the Amendment Act of 1976. Now,
                                                                      B
       under the amended provisions, all questions, including
     · right, title, interests in the property arising between the
       parties to the proceedings under Rule 97, have to be
       adjudicated by the executing court itself and not left to be
       decided by way of a fresh suit."
                                                                      c
     19. In the case of S. Rajeswari (supra), the appellant was
one of the persons who had obstructed the execution of a
decree obtained by the 1st respondent therein and had filed
an application under Section 151 of CPC which was rejected
by the executing court on the ground that it was not                  D
maintainable. Being grieved by the said order he preferred a
revision petition which was allowed by the High Court. The
Court treated the application preferred under Section 151 of
C.P.C. to be one under Order XXI, Rule 97 because the
executing court proceeded to record evidence and thereupon            E
adjudicated the matter. The evidence of the decree-holder was
considered and a conclusion was arrived at that the identity of
plot in question had not been established and thereby the
plaintiff was disabled from executing the decree for possession
of the land. A contention was raised before this Court that the       F
High Court had erred in entertaining a revision petition under
Section 115, C.P.C., for the order was a decree under Order
XXI, Rule 103 of C.P.C. and hence, an appeal lay. The said
contention was accepted by this Court.

    20. At this juncture, we may refer with profit to the             G
pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad
Jaiswal and another wherein a two-Judge Bench scanning the
anatomy of the rules came to hold that:-

7.   AIR 1997 SC 856.                                                 H
    1018     SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A       "... a stranger to the decree who claims an independent
        right, title and interest in the decretal 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 decretal
B       property even after losing possession as per Order XX.I,
        Rule 99. Order XX.I, 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 actual delivery of possession to
c       the decree-holder. While Order XX.I, Rule 99 on the other
        hand deals with the 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
D
        dehors the interest of the judgment-debtor. Both these
        types of enquiries in connection with the right, title and
        interest of a stranger to the decree are clearly
        contemplated by the aforesaid scheme of Order XX.I and
        it is not as if that such a stranger to the decree can come
E       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."

F       21. The aforesaid authorities clearly spell out that the court
  has the authority to adjudicate all the questions pertaining to
  right, title or interest in the property arising between the parties.
  It also includes the claim of a stranger who apprehends
  dispossession or has already been dispossessed from the
G immovable property. The self-contained Code, as has been
  emphasised by this Court, enjoins the executing court to
  adjudicate the lis and the purpose is to avoid multiplicity of
  proceedings. It is also so because prior to 1976 amendment
  the grievance was required to be agitated by filing a suit but
H after the amendment the entire enquiry has to be conducted by
             SAMEER SINGH v. ABDUL RAB                         1019
                  [DIPAK MISRA, J.]

the executing court. Order XXI, Rule 101 provides for the               A
determination of necessary issues. Rule 103 clearly stipulates
that when an application is adjudicated upon under Rule 98 or
Rule 100 the said order shall have the same force as if it were
a decree. Thus, it is a deemed decree. If a Court declines to
adjudicate on the ground that it does not have jurisdiction, the        B
said order cannot earn the status of a decree. If an executing
court only expresses its inability to adjudicate by stating that it
lacks jurisdiction, then the status of the order has to be different.
In the instant case the executing court has expressed an opinion
that it has become functus officio and hence, it cannot initiate        C
or launch any enquiry. The appellants had invoked the
jurisdiction of the High Court under Article 227 of the
Constitution assailing the order passed by the executing court
on the foundation that it had failed to exercise the jurisdiction
vested in it. The appellants had approached the High Court as
per the dictum laid down by this Court in Surya Dev Rai v. Ram          D
Chander Rai and others6 •

     22. Whether the executing court, in the obtaining
circumstances, has correctly expressed the view that it has
become functus officio or not and thereby it has jurisdiction or        E
not, fundamentally pertains to rectification of a jurisdictional
error. It is so as there has been no adjudication. If a subordinate
court exercises its jurisdiction not vested in it by law or fails to
exereise the jurisdiction so vested, the said order under Section
115 of the Code is revisable as has been held in Joy Chand              F
Lal Babu v. Kamalaksha Chaudhury and others!. The same
principle has been reiterated in Keshardeo Chamria v. Radha
Kissan Chamria and others10 and Chaube Jagdish Prasad
and another v. Ganga Prasad Chaturvedi11 • Needless to
emphasise, the said principle is well-settled. After the                G

s.   (2003) a sec 675.
9.   AIR 1949 PC 239.
10. AIR 1953 SC 23.
11. AIR 1959 SC 492.                                                    H
    1020    SUPREME COURT REPORTS               [2014] 10 ·s.C.R

                                                  .
A amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said
  power is exercised under Article 227 of the Constitution as per
  the principle laid down in Surya Dev Rai (supra). Had the
  executing court apart from expressing the view that it had
  become functus officio had adjudicated the issues on merits,
8 the question would have been different, for in that event there
  would have been an adjudication.

       23. In view of the forgoing analysis, we conclude and hold
  that the High Court has fallen into error by opining that the
  decision rendered by the executing court is a decree and,
C therefore, an appeal should have been filed, and resultantly
  allow the appeal and set aside the impugned order. The High
  Court shall decide the matter as necessary under Article 227
  of the Constitution of India. As a long span of time has expired
  we would request the High Court to dispose of the matter within
D a period of three months. There shall be no order as to costs.

   Rajendra Prasad                                    Appeal allowed.