Holding

An objection to execution, even by a non‑party to the decree, must be heard and decided under Order 21 Rule 98 of the CPC; the execution court cannot refuse jurisdiction merely because the objector has not been dispossessed.

Summary

Babulal obtained a decree for specific performance of a contract for sale of immovable property, but the decree did not grant possession. When the decree‑holder sought to execute the decree, Raj Kumar (the appellant), who was not a party to the decree, claimed a right in the property and obtained an injunction. He objected to the execution under Order 21 Rule 32 CPC. The executing court dismissed his objection, holding that because he had not been dispossessed the application under Order 21 Rule 97 was not maintainable; the High Court affirmed. On appeal, the Supreme Court held that any objection to execution, even by a non‑party, must be adjudicated under Order 21 Rule 98, and the execution court cannot refuse jurisdiction on the ground of non‑dispossession. The Court directed the execution court to conduct an enquiry, record a finding, and treat the order as a decree subject to appeal. The appeal was allowed.

Issues considered

Whether an objection to execution by a person who is not a party to the decree can be dismissed merely because he has not been dispossessed.
Whether the executing court is required to adjudicate such objection under Order 21 Rule 98 of the CPC, treating the order as a decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 101, s. Order 21 Rule 102, s. Order 21 Rule 103, s. Order 21 Rule 32, s. Order 21 Rule 35, s. Order 21 Rule 97, s. Order 21 Rule 98
Specific Relief Act, 1963s. 22(1), s. 22(2)

Subjects

specific performanceexecution of decreeobjection to executionOrder 21 CPCadjudicationimmovable propertypossessiondecreeappeal

Judgment

--
BABULAL A
v.
RAJ KUMAR AND ORS.

FEBRUARY 16, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Specific Relief Act, 1963/Code of Civil Procedure, 1908:

Section 22(1)/0rder 21Rules32, 35, 97, 98, 101, 102, 103-Detemiina-
tion of the question of the 1ight, title or interest of the objector in the C
immovable prope1ty under execution needs to be adjudicated--17ze procedure
prescribed is a complete code in itself-Executing Cowt required to detemiine
the question, when the appellants had objected to the execution of the decree
as against the appellants who were not parties to the decree for specific
pe1fomzance-Executing Cowt directed to enquire into the matter and record
a finding after giving opp01tu11ity to the pwties. D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3765 of
1996.

From the Judgment and Order dated 9.5.95 of the Rajasthan High E
Court in S.B.C.R.P. No. 656 of 1994.

Tapas Ray and S.K. Jain for the Appellants.

Caveator-in-person (NP) for th'? Respondents.

The following Order of the Court was delivered : F

Leave granted.

Though the respondents have been served, the second respondent
has filed a photocopy of the power of Attorney on behalf of respondent G
Nos. 1 and 3 to 6 but when the Registry directed him to produce the
original he failed to do the same. He is also present in the Court. One
Shyam Lal, son of Prabhu Lal Kayasth had laid the suit for specific
performance; the Civil Judge dismissed the suit but on appeal No. 16/1973
by judgment and decree dated October 18, 1973, the suit was decreed as
~cr: H
763
764 SUPREME COURT REPORTS [1996] 2 S.C.R.
--
A "Appeal is accepted with cost. Judgment and decree under appeal
is set aside and suit for specific performance ofcontract is decreed
with costs that defendants as per contract Ex. 1 at 1.9.66 shall
execute sale deed within 3 months and plaintiff shall pay the
balance sum to the defendant in the said period, otherwise plain-
tiff shall be entitled to get the sale deed executed of the dispute
B property as per the law depositing the balance amount in the Court
within two months."

In the suit there was prayer for specific performance with possession
of_ the property in prayer 1 thus :
c
"It be decreed that defendants should perform their part of the
contract regarding the land and foi: this purpose get the sale deed
registered after receiving a sum of Rs~ 1100 and handover the
possession of the disputed house to the plaintiff."

D Under Section 22(1) of the Specific Relief Act, 1963, notwithstanding
anything contained in Civil Procedure Code, the plaintiff suing for the
specific performance of a contract for transfer of immovable property may,
in an appropriate case, ask for possession or partition with specific posses-
sion of the property, in addition to such specific performance. Sub-section
E (2) puts fetters on the power of the court to grant such relief without there
being the relief si>ecifically claimed inthe plaint. As seen in the decree,
though prayer for possession was claimed, no decree for possession was
granted which had become final.

It would appear that in execution of the decree the legal repre-
F sentatives of the decree-holder sought to dispossess the appellant from the
property said to be in his possession. Apprehending his dispossession, the
appellant had fded another suit for injunction based on po.ssessory title
obtained an ad-interim injunction on July 2, 1991 as under :

"Counsel for the applicant present. The Presiding Officer has been
G trfillsferred. Notice be issued tq non-applicant on filing the process
fee. File be put us on........ After writing this, non-applicant No. 2
Subhash Saxena appeared and informed the ~ourt that he has not
received copy of stay application. Copy of stay application is given.
to him today. Rest of the applicants Nos.l, 3, 4, 5 and 6 be
H summoned through notices on filing the Registry fees and other
BABULAL v. RAJ KRUMAR 765

expenses. Meanwhile non-applicant No. 2 would not dispossesed A
applicant Babu Lal from the disputed house (except the decree of
the court). Put file on 17.8.91."

We are informed that the injunction is still subsisting.

B
In the execution application filed under Order 21 Rule 32 of the CPC
the appellant filed an objection on the ground that he could not be
disposed. It is not in dispute that the appellant was not a party to the
decree for specific performance. His objection was over-ruled by the
executing Court holding that since he had not been dispossessed, applica-
tion under order 21 Rule 97 is not maintainable. That view was affirmed c
by the High Court in the impugned order dated May 9, 1995 in C.R.P. No.
656/94 by the High Court of Rajasthan at Jaipur Bench. Thus, this appeal
~by special leave.

The controversy is no longer res integra. This Court in Bhanwar Lal D
v. Satyanarain & Anr., [1995) 1 SCC 6 considered the controversy and had
held that even an application filed under Order 21 Rule 35(3) or one filed
under Section 47 would be treated as an application under Order 21 Rule
97 and an adjudication is required to be conducted under Rule 98. Dis-
possession of the applicant from the property in execution is not a condi-
tion for declining to entertain the application. The reasons are obvious. E
·The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin
conduct of a regular adjudication, finding recorded thereon would be a
decree and bind the parties. In Para 7 thereof it was held thus :

"In the above view we have taken, the High Court has com- F
mitted grievous error of jurisdiction and also pate~t illegality in
treating the application filed by the appellant as barred by limita-
tion and the third one on res judicata. Once the application, dated
25.5.1979 was made, the Court should have treated it to be one
filed under Order 21, Rule 97(1) CPC. The question of res judicata G
for filing the second and third applications does not arise. Under
these circumstances, the appellate court, though for different
reasons was justified in directing an enquiry to be conducted for
removal of the obstruction or resistance caused by Satyanarain
under Order 21 Rules 35(3) and Order 21, Rules 101 and 102 of
CPC". H
766 SUPREME COURT REPORTS (1996) 2 S.C.R.

A It would, therefore, be clear that an· adjudication is required to be
conducted under Order 21, Rule 98 before removal of the obstruction 4---
.......
caused by the object or the appellant and a finding is required to be
recorded in that behalf. The order is treated as a decree under Order 21,
. Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was
subject to suit under 1976 Amendment to CPC that may be pending on the
B date of the commencement of the amended provisions of CPC was secured.
Thereafter, under the amended Code, right of suit under Order 21, Rule
63 cif old Code has been taken away. The determination of the question of
the right, titl~ or interest of the objector in the immovable property under
execution needs to be adjudicated under Order 21, Rule 98 which is an
a
C order and is decree under Order 21, Rule 103 for the purpose of appeal
subject to the same conditions as to an appeal or otherwise as if it were a
decree. Thus, the procedure prescribed is a complete code in itself. There-
fore, the executing Court is required to determine the question, when the
appellants had objected to the execution of the decree as against the
D appellants who were not parties to the decree for specific performance.
The appeal is accordingly allowed. The executing Court is directed
to enquire into the matter and record a finding after giving opportunity to
the parties. No costs.

G.N. Appeal allowed.