Holding

An objection under Order 21 Rule 97 is maintainable against the execution of a decree by any person, including tenants and strangers, and such disputes must be decided by the executing court under Rule 101, irrespective of the 1976 amendment.

Summary

Shreenath and others, who were tenants of a mortgaged property, opposed the execution of a decree for vacant possession granted to Rajesh, the mortgagee, by filing an objection under Order 21 Rule 97 of the Code of Civil Procedure, claiming an independent right in the premises. The executing court dismissed the objection, relying on a Madhya Pradesh High Court decision that a third‑party could not invoke Rule 97. On appeal, the Supreme Court examined whether a person not a party to the original suit could resist execution and whether the provision was maintainable before and after the 1976 amendment. The Court held that the words "any person" in Rule 97 expressly include tenants and strangers, and that such objections are maintainable both pre‑ and post‑amendment, with the dispute to be adjudicated by the executing court under Rule 101. Consequently, the earlier Full Bench decision was overruled, the orders of the High Court and the executing court were set aside, and the matter was remitted for proper consideration of the objection. The appeal was allowed.

Issues considered

Whether a third‑party occupier, not a party to the suit, can file an objection under Order 21 Rule 97 of the CPC against the execution of a decree for vacant possession.
Whether the objection under Rule 97 is maintainable under the pre‑1976 and post‑1976 statutory scheme.
Interpretation of the phrase "any person" in Order 21 Rule 97 and its impact on the rights of tenants or strangers.
Whether the provisions of Rules 99, 100 and 103 affect the maintainability of the objection.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 101, s. Order 21 Rule 103, s. Order 21 Rule 35, s. Order 21 Rule 36, s. Order 21 Rule 97(1), s. Order 21 Rule 97(2), s. Order 21 Rule 98, s. Order 21 Rule 99

Subjects

execution of decreemortgage redemptionvacant possessionOrder 21 Rule 97any personthird‑party rightsCPC 1976 amendmenttenant obstructionprocedural law interpretation

Judgment

SHREENA TH AND ANR. A
v.
. .....-( RAJESH AND ORS.

APRIL 13, 1998

[K. VENKATASWAMI AND A.P. MISRA, JJ.] B

Code of Civil Procedure, 1908: Order 21 Rules 97(1) & (2), 98, 99,
JOO, 101 and 103 (prior to, and after, 1976 Amendment).

Mortgaged property-Vacant possession-Execution ofdecree-Tenants C
in possession of the property obstructed decree-holder and filed an
application/objection under R.-97 on the ground that they were not parties
to the suit and that they had independent legal right not affected by the
mortgage or redemption thereof-Held: Such application/objection
maintainable both under the pre and post-1976 amendment-Distinction D
between pre and post-1976 amendment explained-Further, the
maintainability of such application/objection not affected by new R. 99 or
old R. JOO.

Order 21 Rule 97(1)-Words "any person"-Scope of-Held: Include
even person not bound by the decree. E
Interpretation of Statutes :

Procedural law-Interpretation of-Held: Where more than one
interpretation is possible, the one which curtails the procedure and not the
one which eludes or frustrates the recipient of justice is to be adopted- F

- Further, procedural law is always subservient to, and in aid of. justice.

Words and Phrases:

"Any person"-Meaning of-In the context of O. 21 R. 97(1) of the
Code of Civil Procedure, I 908. G
The respondent filed a suit for the redemption of his mortgaged
.._ "' property, which was decreed. The decree directed delivery of vacant possession
of the mortgaged property. In the said suit, the appellants were not arrayed
as parties. As the respondent put the decree in execution in which the
appellants, who were in possession of the property as tenants, obstructed the H
709
710 SUPREME COURT REPORTS [1998] 2 S.C.R.

A respondent and filed an application/objection under Order 21Rule97 of the
Code of Civil Procedure, 1908 on the ground that the appellants were not
arrayed as parties to the suit and that they had independent legal right to
,........, .
the property not affected either by the mortgage or redemption thereof.

The Executing court held that the application/objection filed by the
B appellants was not maintainable under Order 21 Rule 97 CPC. Hence this
appeal.

Allowing the appeal, this Court

C HELD: 1. Under Order 21Rule35(1) of the Code of Civil Procedure,
1908 the Executing Court delivers actual physical possession of the disputed
property to the decree-holder and, if necessary, by removing any person
bound by the decree who refuses to vacate the said property. Under Order
21 Rule 36 the decree-holder gets the symbolic possession. Order 2l. Rule
99 conceives of resistance or obstruction to the possession of immovable
D property when made in execution ofa decree by "any person". This may be
either by the person bound by the decree, claiming title through judgment
debtor or claiming independent right uf his own including tenant not party
to the suit or even a stranger. A decree-holder, in such a case, may make
an application to the Executing Court complaining such resistance for delivery
E of possession of the property. Rule 97(2) after the 1976 substitution empowers
the Executing Courts when such claim is made to proceed to adjudicate upon
the applicant's claim in accordance with provisions contained therein. This
refers to Order 21 Rule 101 (as amended by 1976 Act) under which all
questions relating to right, title or interest in the property arising between
the parties under Order 21 Rule 97 or Rule 99 should be determined by the
F Court and not by a separate suit. By the amendment, one has not to go for
a fresh suit but all matters pertaining to that property even if obstructed by
a stranger is adjudicated in the execution proceedings. The expression "any
person" in Rule 97(1) is used deliberately for widening the scope of power
-
,
so that the Executing Court could adjudicate the claim made in any such
application under Order 21 Rule 97. Thus by the use of the words "any
G person" it includes all person resisting the delivery of possession, claiming
right in the property even those not bound by the decree, including tenants
or other persons claiming right o:i their own including a stranger. 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
H to relegate itself to the long drawn out arduous procedure of a fresh suit.
SHREENATH v. RAJESH 711

This is to salvage the possible hardship both to the decret'-holder and other A
persons claiming title on their own right to get it ad.indicated in the very
execution proceedings. [717-B-H; 718-A[

2. Provisions of Ruic 97(1) before and after the 1976 Amendment are
the same but after the 1976 Amendment ;Lil disputes relating to the pro11erty
made under Rules 97 and 99 is to be adjudicated under Ruic 101, while B
under unamended provision under Ruic 97(2), the Executing Court issues
summons to any such person obstructing possession over the decretal
property. After investigation under Ruic 98 the Court puts back a dccree-
holder in possession where the Com1 finds obstruction was occasioned
without any just cause while under Rule 99 where obstruction was by a C
person claiming in good faith to be in possession of the pro11erty on his own
right, the Com1 has to dismiss the decree-holder's application. Thus even
prior to 1976 right of any person claiming right on his own or as a tenant,
not paiiy to the suit, such person's right has to be adjudicated under Rule
99 and he need not fall back to file a separate suit. This saves him from a
long litigation. So a tenant or any person claiming a right in the propc11y, D
on his own, if resists delivery of 11ossession to the decree-holder the dis)lute
and his claim have to be decided after the 1976 Amendment under Ruic 97
read with Rule 101 and 11rior to the amendment under Rule 97 read with
Rule 99. However, under the old law, in case order is )lassed against the
person resisting possession under Rule 97 read with Ruic 99 then by viliue E
of Rule 103, as it then was, he has to file a suit to establish his right. But
now after the amendment one need not file a suit even in such cases as all
disputes are to be settled by the Executing Court itself finally under Rule
101. [719-E-H; 720-AJ

3. Thus, both either under the old law or the present law the right of p
a tenant or any 11erson 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 itself. The provision of old Rule 100 or new Rule 99 will
not defeat the right of such person to get his objection decided under Ruic
97 which is a stage prior to his dispossession or a case where he is in
11ossession. [720-B-DJ G
Noorduddin v. D1'. KL. Anand, [1995] I SCC 242 and Brahmdeo
Chaudhary v. Rishikesh Prasad Jai.1wal, [1997) 3 SCC 694, relied on.

Smt. Usha Jain v. Manmohan Bajaj, AIR (1980) Vol. 67 MP 146,
overruled. H
1-
712 SUPREME COURT REPORTS (1998) 2 S.C.R.

A 4. In interpreting any procedural law, where more than one
interpretation is possible, the one, which curtails the procedure without
eluding the justice, is to he adopted. The procedural law is always subservient
to, and is in aid of, justice. Any interpretation, which eludes or frustrates
the recipient of justice, is not to be followed. 1713-C-D]

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2929 of
1985.

From the Judgment and Order dated 20.2.85 of the Madhya Pradesh
High Court in C.R. No. 406of1983.

C S.K. Gambhir for the Appellants.

H.K. Puri and J.M. Khanna for the Respondents.

The Judgment of the Court was delivered by

D MISRA, J. The seekers of justice many a time has to take a long
circuitous routes, both on account of hierarchy of Courts and the procedural
law. Such persons are and can be dragged till the last ladder of the said
hierarchy for receiving justice but even here he only breaths tearness of
receiving the fruits of that justice for which he has been aspiring to receive.
E To reach this stage is in itself an achievement and satisfaction as he, by then
has passed through a long arduous journey of thF- procedur?l law with may
hurdles replica of mountain certain with ridges and furrows. When he is ready
to take the bite of that fruit, he has to pass through the same terrain of the
procedural law in the execution proceedings the morose is writ large on his
face. What looked inevitable to him to receive it at his hands distance is
F deluded back into the horizon. The creation of hierarchy of Courts was for
a reasonable objective for confering greater satisfaction to the parties that
errors, if any, by any of the lower Courts under the scruitiny of a higher Court
be rectified and long procedural laws also with good intention to exclude and ~-

filter out all unwanted who may be the cause of obstruction to such seekers
G in his journey to justice. But this obviously is one of the causes of delay in
justice. Of course, under this pattern the party wrongfully gaining within
permissible limits also stretches and litigation an much as possible. Thus, this
has been the cause of anxiety and concern of various authorities, Legislators
and Courts. How to eliminate such a long consuming justice? We must
confess that we have still to go long way before true satisfaction in this
H regard is received. Even after one reaches the stage of final decree, he has
SHREENATH v. RA.TESH [MISRA, J.] 713

to undergo a long distance by passing through the ordained procedure in the A
execution proceedings before he receives the bowl of justice.

The Courts within its limitations have been interpreting the procedural
laws so as to conclude all possible disputes pertaining to the decreetal
property which is within its fold in an execution proceeding i.e .. including
what may be raised later by way of another bout of litigations through a fresh B
suit. Similarly legislatures equally are also endeavouring by amendments to
achieve the same objective. the present case is one in this regard. Keeping
this in view, we now proceed to examine the present case.

In interpreting any procedural law, where more than one interpretation C
is possible, the one which curtails the procedure without eluding the justice
is to be adopted. The procedural law is always subservient to, and is in aid
to justice. Any interpretation which eludes or frustrates the receipient of
justice is not to be followed.

This appeal arises out of the judgment and order of the High Court of D
• Madhya Pradesh, Bench at Indore, in Civil Revision No. 406 of 1983.

The question raised is, whether the third party in possession of a
property claiming independent right as a tenant not party to a deem:! under
execution could resist such decree by seeking adjudication of his objections
under order 21, Rule 97 of the Civil Procedure code? E
The respondent No. 1, Rajesh, filed a suit for the redemption of his
mortgage against respondent No.2, Prem Shanker, which was decreed. The
decree directed the delivery of vacant possession of the mortgaged property
to the applicant (Respondent No. I). In the said suit, admittedly, the present F
appellants were not parties. The decree-holder put his decree in execution in
which the present appellants obstmcted on the ground that vacant possession
cannot be delivered in execution because they were the tenants in the shop
from the year 1952 much before the execution of the mortgage which was in
the year 1962, hence, only symbolical possession can be given. There has
been two rounds of proceedings in execution. Initially, the Executing Court G
held that the decree-holder was not entitled to take actual possession in
• Jo: execution of the decree against the non-applicants. The case of the decree-
holder is that in the suit it was held that the mortgagor had to deliver vacant
possession to the mortgagee. Hence he is entitled to get back vacant
possession. Thus he made strong plea for a vacant possession in terms of H
714 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the decree. For him. it is submitted that a similar objection was taken by the
judgment debtor Prem Shanker that only symbolic possession could be given
to the decree-holder. The objection was negatived by the trial court, appellate
court and even by the High Court in the second appeal. Hence, the executing
court cannot go behind the decree. The appellants case is they were not
B parties to those proceedings. However, this objection of the decree-holder
was rejected in the first round by the Executing Court and the Revisional
Court holding that the person resisting viz. the present appellants were not
parties to the suit nor there is any decree against them. It seems subsequently,
the decree-holder again moved another application in the aforesaid execution
case No. IA of 19970-81 for delivery of vacant possession. The present
c appellants also moved an application/objections under Order 21, Rule 97
C.P. C. resisting that they cannot be dispossessed in terms of the said decree,
as they were not parties to the said suit nor they are deriving any right and
title through the Judgement debtor. They claim separate and independent
legal right, not affected either by the mortgage or redemption of the mortgage.
D It is not clear as under what circumstances the second application for actual
possession was made by the decree-holder after the matter was earlier disposed
of. Since this point seems not r;iised either before the Executing Court or the
High Court, we are not adverting to this point. We find the Executing Court
in the second round on consideration of a subsequent decision of the Full
E Bench of the M.P High Court in Smt. Usha Jain and others v. Manmohan
Bajaj and others, AIR (1980) Vol 67 M.P. 146, held that the appellants had no
right to object to the decree under order 21, Rule 97. The said full Bench held:-

"The executing Court has no jurisdiction to start an enquiry suo
motu or at the instance of a third party other than the decree-holder/
F aution-purchaser under 0.21, Rule 97. This rnle is merely permissive
and not mandatory so that the decree-holder/aution-purchaser need
not resort to it against his will and may even apply for fresh warrant
under 0.21, R. 35, C.P.C. Executing Court is not bound to stay its
hands the moment a third party files an objection to the execution nor
G the stay would continue till an unwilling decree-holder/auction-
purchaser is forced to apply for investigation into the right or title
claimed by the third part}· and negative the claim therein. If the
Executing Court were to stay its hands till investigation into a third
party's claim is not finally decided then it would result in depriving
H the decree-holder of his possession by filing repeated spurious claims.
SHREENATH v. RAJESH [Ml.SRA. J.] 715
No enquiry into the title or possession of a third party is A
contemplated at any rate at his instance either under Rules 35 and 36
or Rules 95 and 96 of Order 2 L C.P.C. when the decree-holder or the
auction-purchase applies for obtaining possession. Subsequently when
the decree-holder or auction-purchaser is met with obstruction or
resistancee in obtaining possession, one of the options open to him B
is to apply under Rule 97 but that provision is merely permissive and
not mandatory and it is open to the decree-holder/auction-purchaser
apply instead for a fresh warrant of possession. An enquiry at the
instance of a third party in possession is contemplated only under
0.21. R. 100 after he was dispossessed and not before it.
c
The omission by the executing Court to investigate into the
objection filed by a third party does not result in injustice to the third
party. It cannot be said that he would have no "remedy to protect his
possession and have his title judicially investigated brief to his
dispossession his only remedy then being under Order 21, Rule 100 D
after dispossession. Another remedy available to such a third party
is to institute an independent civil suit for a declaration of his title
claiming therein the relief of temporary injuction to protect his
possession.

The High Court upheld the Executing Court's order following the said Full E
Bench decision of the M.P. High Court. Hence this appeal. The only question
raised is, whether the Full Bench decision is correctly decided. In view of
this Full Bench decision, objection of the appellant was rejected without
considering the points raised on merit or other objections.

In order to appreciate the controversy, Order 21, Rule 35, Order 21, Rule
F
36 and Order 21, Rule 97 are quoted hereunder :-

"O. 21, R. 35: Decree for immovable property:-

( 1) Where a decree is for the delivery of any immovable property, G
possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on
his behalf, and, if necessary, be removing any person bound by the
decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable H
716 SUPREME COURT REPORTS (1998] 2 S.C.R.

A property, such possession shall be deliYered by affixing a copy of the
warrant in some conspicuous place on the property and proclaiming
by beat of drum, or other customary mode. at some convenient place,
the substance of the decree.

(3) Where a possession of any building is enclosure is to be
B delivered and the person in possession, being bound by the decree,
does not afford free access. the court. through its officers, may. after
giving reasonable warning and facility to any woman not appearing
in public according to the customs of the country to withdraw, remove
or open any lock or bolt or break open any door or do any other act
C necessary for putting the decree-holder in possession.

0. 21, R: 36: Decree ji!r delivery for i111111ovable property when in
occupancy of tenant:-

Where a decree is for the delivery of any immovable property in
D the occupancy of a tenant or other person entitled to occupy the same
and not bound by the decree to relinquish such occupancy, the court
shall order delivery to be made by affixing a copy of the warrant in
some conspicuous place on the property, and proclaiming to the
occupant by beat of drum or other customary mode, at some convenient
place, the substance of the decree in regard to the property.
E
0. 21, R. 97 : Resistance or obstruction to possession of immovable
property :-

(1) Where the holder ofa decree for the possession of immovable
property the purchaser of any such property sold in execution of a
F
decree is ·resistetl 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.

(2) Where any application is made under sub-rule (I) the court
G shall proceed to adjudicate upon the application in accordance with
the provisions herein contained."

This sub-clause (2) was substituted by the Amending Act 1976.
Earlier sub-clause (2) was :

H 'The Court shall fix a day of investigating the matter and shall
SHREENATH v. RAJESH [MISRA. I ] 717

summon the party against whom the application is made to appear and A
answer the same."

Under sub-clause I Order 21, Rule 35, the Executing Court delivers
actual physical possession of the disputed property to the decree-holder and,
if necessary, by removing any person bound by the decree who refuses to
vacate the said property. The significant words are by removing any person B
bound by the decree. Order 21, Ru le 36 conceives of immovable property
when in occupancy of a tenant or other person not bound by the decree, the
Court delivers possession by fixing a copy of the warrant in some conspicuous
place of the said property and proclaiming to the occupant by beat of drum
or other customary mode at some convenient place, the substance of the C
decree in regard to the property. In other words. the decree-holder gets the
symbolic possession. Order 2 L Rule 99 conceives of resistance or obstruction
to the possession of immovable property when made in execution of a decree
by "any person". This may be either by the person bound by the decree,
claiming title through judgment debtor or claiming independent right of his D
own including tenant not party to the suit or even a stranger. A decree holder,
in such a case, may make an application to the Executing Court complaining
such resistance, for delivery of possession of the property. Sub-clause (2)
after 1976 substitution empowers the Executing Courts when such claim is
made to proceed to adjudicate upon the applicants claim in accordance with
provisions contained hereinafter. This refers to Order 21, Rule 101 (As E
ammended by 1976 Act) under which all questions relating to right, title or
interest in the property arising between the parties under Order 21, Rule 97
or Rule 99 shall be determined by the Court and not by a separate suit By
the amendment,. one has not to go for a fresh suit but all matter pertaining
to that property even if obstructed by a stranger is adjudicated and finality F
given even in the executing proceedings. We find the expression '·any person"
under sub-clause (1) is used deliberately for widening the scope of power so
that the Executing Court could adjudicate the claim made in any such application
under Order 21, Rule 97. Thus by the use of the words 'any person' it
includes all persons resisting the delivery of possession, claiming right in the G
property even those n01 bound by the decree. including tenants or other
persons claiming right on their own including a stranger.

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 itself to the long drawn out arduous procedure of a H
718 SUPREME COURT REPORTS [1998] 2 S. C.R

A fresh suit. This is to salvage the possible hardship both to the decree-holder
and other person claiming title on their own right to get it adjudicated in the
very execution proceedings. We find that order 21, Rule 35 deals with cases
of delivery of possession of an immoval..le property to the decree-holder by
delivery of actual physical possession and by removing any person in
B possession who is bound by a decree. while under Order 2 L Rule 36 only
symbolic possession is given where tenant is in actual possession. Order 21,
Rule 97 as aforesaid, conceives of cases where delivery of possession to
decree-holder or purchaser is resisted by any person. ·Any person' , as
aforesaid, is wide enough to include even a person not bound by a decree
or claiming right in the property on his own including that of a tenant
c including stranger.

Prior to the 1976 Ammending Act, provisions under Order 21, Rules 97
to IOI and 103 were different which are quoted hereunder :-

"97 (I) Where the holder of a decree for the possession of
D 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) The Court shall fix a day for investigating the matter and shall
sulll111011 the party against whom the application is made to appear and
answer the same.

98. Where the Court is satisfied that the resistance or obstruction was
occasioned without any just cause by the judgment debtor or by
F some other person at his instigation, 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, order the judgment-debtor, or any person
acting at his instigation to be detained in the civil prison for a term
which may extend to thirty days.
G
99. Where the court is satisfied that the resistance or obstruction was
occasioned by any person (other than the judgment-debtor) claiming
in good faith to be in possession of the property on his own account
or on account of some person other than the judgment-debtor, the
H Court shall make an order dismissing the application.
SHREENATH v. RAJESH [MISRA, J ] 719

mo. (I) Where any person other than tl;e judgment-debtor is A
dispossessed of immovable property by the h~er of a 'decree for the
possession of such property or, where such property or where such
property has been sold in execution of a dec~ee. by purchaser thereof,
he may make an application to the Court complaining of such
dispossession. B
(2) The Court shall fix a day for investigating the matter and shall
"" summon the party against whom the application is made and answer
the same.

10 I. Where the Court is satisfied that the applicant was in possession
of the property on his own account or on account of some person
c
other than the judgment-debtor, it shall direct that the applicant be put
into possession of the property.

103. Any party not being a judgment-debtor against whom an order
is made under rule 98, rule 99 and rule I 01 may institute a suit to D
establish the right which he claims to the present possession of the
property, but, subject to the result of such suit (if any), the order shall
be conclusive."

So far sub-clause (I) of Rule 97 the provision is same but after 1976
amendment all disputes relating to the property made under Rules 97 and 99 E
is 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 decree-holder in possession where the
Court finds obstruction was occassioned without any just cause, while under F
)>..
Rule 99 where 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 application. Thus even prior to 1976 right of any person claiming
right on his own or as a tenant, not party to the suit such person's right has
to be adjudicated under Rule 99 and he need not fall back to file a separate
suit, By this, he is_ saved from a long litigation. So a tenant or any person G
claiming a right in the property, on his own, if resists delivery of possession
- A; to the decree-holder the dispute and his claim has to be decided after 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 cases order
is passed against the person resisting possession under Rule 97 read with H
·.·
720 SUPREME COURT REPORTS [1998) 2 S.C.R

A Rule 99 then by virtue of Rule 103, as it then was. he has to file a suit to
establish his right. But now after the amendment one need not file suit even
>- ...
in such cases as all disputes arc to be settled by the Executing Court itself
finally under Rule 10 I.

We find both either under the old law or the present law the right of
B 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 v
JI-.
Executing Court itself.

Rule 100 of the old law, as referred in the aforesaid Full Bench decision

c of the Madhya Pradesh High Court is a situation different from what is
covered by Rule 97. Under Rule 100 (old law) and Order 99 the new law covers
cases where persons other than judgment-debtor is dispossessed of immovable
property by the decree-holder, of course, such cases are also covered to be
decided by the Executing Court. but this will not defeat the right of such
person to get his objection decided under Rule 97 which is a stage prior to
D his dispossession or a case where he is in possession. In other words, when
]r
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 Order 21, Rule 97.
E One has not to wait for his dispossession to enable him to participate in the
execution proceedings. This shows that such person can object and get
adjudication when he is sought to be dispossessed by the decree-holder. For
all the aforesaid reasons, we do not find the Full Bench in Smt. Usha Jain,
(supra) correctly decided the law.

F In Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242 it is held :- .....
"Para 8: Thus the scheme of the Code clearly adumbrates that when
an application has been made under Order 21, Rule 97, the court is
enjoinded to adjudicate upon the right, title and interest claimed in the
property arising between the parties to a proceeding or between the
G decree-holder and the person claiming independent right, title or interest
in the immovable property and an order in that behalf be made. The
determination shall be conclusive between the parties as if it was a
decree subject or right of appeal and not a matter to be agitated by
a separate suit. In other words, no other proceedings were allowed to
H be taken. It has to be remembered that preceding Civil Procedure Code
SHREENATll v. RA.IESl-l [MISRA, J.] 721

Amendement Act 1976. right of suit under Order 21, Rule l03 of l 908 A
Code was a1·ailable which has been now taken away. By necessary
·--..: implication. the legislature relegated the parties to an adjudication of
right. title or interest in the immol'able property under execution and
finality has been accorded to it. Thus, the scheme of the Code appears
to be to put an and to the protraction of the execution and to shorten
B
the litigation between the parties or persons claiming right. title and
"'1, interest in the immovable property in exeuction.''

In Brahmdeo Chaudhmy v. Rishikesh Prasad Jaiswal and Another
r1997] 3 sec 694, the question raised was whether a stranger occuping the
premises on his own right when offered resistance to the execution of the c
decree obtained by the decree holder can or cannot request the Executing
Court to adjudicate his claim without being insisted upon that first he must
handover the possession and then move an application under Order 21, Rule
97. It is held in para 9 :-

"Para 9 : In short the aforesaid statutory provisions of Order 21 lay D
"(
down a complete code for resoll'ing all disputes pertaining to execution
>
of the decree for possession obtained by a decree-holder and whose
attempts at executing the said decree meet with rough weather. Once
resistance is offered by a purported stranger to the decree and which
comes to be noted by the executing court as well as by the decree- E
holder the remedy available to the decree-holder against such an
obstructionist is only under Order 21, Rule 97, sub-rule ( 1) and he
cannot bypass such obstruction and insist on reissuance of warrant
for possession under Order 21, Rule 3 5 with the help of police force,
as that course would amount to bypassing and circumventing the
,I.._ procedure laid down under Order 21, Rule 97 ................. " F
In view of the aforesaid finding and the law being well settled the
interpretation given by the aforesaid Full Bench of the M.P. High Court in the
case of Usha Jain v. Man111ohan Bajaj (supra) cannot be held to be a good
law. As we have recorded above, both the Executing Court and the High
Court have rejected the application of the applicant under Order 21, Rule 97 G
only on the basis of the said Full Bench decision, hence the said order cannot
be sustained. Accordingly, both the orders dated 20th February, 1985 passed
by the High Court in Civil Revision No. 406 of 1983 and the order dated 20th
April, 1983 passed by Executing Court in execution case No. l-N70/81 is
herewith quashed. H
722 SUPREME COURT REPORTS [1998] 2 S.C.R

A We direct the Executing Court to consider and dispose of the objections
and the application of the appellants under Order 21, Rule 97 after giving :.-- -
opportunity to the parties in accordance with law. The appeal is accordingly
allowed. On the facts and circumstances of the case, cost on the parties.

B V.S.S. Appeal allowed.

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