JINI DHANRAJGIR & ANRversusSHIBU MATHEW & ANR. ETC.

                          [2023] 5 S.C.R. 551                               551


                    JINI DHANRAJGIR & ANR.                                  A
                                   v.
                  SHIBU MATHEW & ANR. ETC.
               (Civil Appeal Nos. 3758 – 3796 of 2023)
                            MAY 16, 2023                                    B
       [A. S. BOPANNA AND DIPANKAR DATTA, JJ.]
       Code of Civil Procedure, 1908 : s. 47, Ord. XXI r. 97 –
Execution of decrees– Resistance to delivery of possession to decree-
holder or purchaser – Original plaintiff filed suit for declaration
                                                                            C
of title and recovery of possession against the defendants – Suit
decreed in favour of the plaintiff and the defendants directed to put
the plaintiff in possession of the suit property – In appeal, decree
modified to the extent of paying compensation to defendants in lieu
of part-payment of purchase consideration made by defendant no.
1 and thereafter, the defendants would surrender the vacant                 D
possession of the property – Execution application by the appellant-
son and daughter of the plaintiff – Executing Court held that the
objections filed by the respondents, who had purchased the property
from defendant no. 1 to be maintainable and deemed it necessary
to adjudicate the same on their own merits – On appeal, held: Claim
                                                                            E
regarding right, title and interest in respect of their respective shares
in the decretal property, as raised by the respondents, cannot be
thrown out at the threshold since it is well within their rights to
contest the application u/ Ord. XXI r. 97 filed by the appellants –
Since evidence is required to be led before it, the Executing Court
was justified in holding the objections to be maintainable at this          F
stage not in the sense that the decree cannot be executed against
them but in the sense that a prima facie case had been set up for an
enquiry to be conducted, and posting the matter for evidence to be
led by the parties – Upon determination of the questions referred to
in r. 101, the Executing Court would proceed in the manner
                                                                            G
mandated by r. 98 –Thus, interference with the order under challenge
not called for – Executing Court to deal with the application of the
appellants u/Ord. XXI r. 97 together with the objections raised by
the respondents on their own merits – Appellants have been deprived
of the fruits of the decree for over two decades, it would be just and
                                                                            H
                                  551
552            SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A     proper that the Executing Court decides the issue as early as
      possible.
             Constitution of India : Art. 136 – Power to grant leave under
      – Appellant directly coming before this Court against the order of
      the Executing Court without subjecting such orders to any challenge
B     before the High Court – Permissibility of – Held: This Court should
      not entertain such matters – Litigants should not be indulged to
      hop, skip and jump to reach the Supreme Court for the remedy is
      quick and more efficacious – Supreme Court in its discretion does
      entertain special leave petitions directly from orders of tribunals/
      courts without the High Court having been approached only in
C     matters where substantial questions of general importance are
      involved or where a similar issue is pending for its consideration –
      This Court would not allow a party invoking the ‘special leave’
      jurisdiction to bypass the remedy available – Alternative remedy.
            Dismissing the appeals and Contempt petition, the Court
D
            HELD : 1.1 Section 47 CPC, being one of the most important
      provisions relating to execution of decrees, mandates that the
      court executing the decree shall determine all questions arising
      between the parties to the suit or their representatives in relation
      to the execution, discharge, or satisfaction of the decree and that
E     such questions may not be adjudicated in a separate suit. What is
      intended by conferring exclusive jurisdiction on the executing
      court is to prevent needless and unnecessary litigation and to
      achieve speedy disposal of the questions arising for discussion
      in relation to the execution, discharge or satisfaction of the
F     decree. Should there be any resistance offered or obstruction
      raised impeding due execution of a decree made by a court of
      competent jurisdiction, the provisions of Rules 97, 101 and 98 of
      Order XXI enable the executing court to adjudicate the inter se
      claims of the decre appellants have been deprived of the fruits of
      the Decree for over two decades, it would only be just and proper
G     to request the Executing Court to proceed to decide the
      contentious issues in accordance with law e-holder and the third
      parties in the execution proceedings themselves to avoid
      prolongation of litigation by driving the parties to institute
      independent suits. No wonder, the provisions contained in Rules
H     97 to 106 of Order XXI CPC under the sub-heading “Resistance
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                     553


to delivery of possession to decree-holder or purchaser” have been     A
held to be a complete code in itself. Rules 97 to 103 of Order
XXI provide the sole remedy both to parties to a suit as well as
to a stranger to the decree put to execution. [Para 17][565-F-G;
566-A-C]
      1.2 In terms of the ordainment of Rule 102 of Order XXI,         B
Rules 98 and 100 thereof would not apply to resistance or
obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgment-debtor
has transferred the property after the institution of the suit in
which the decree was passed. [Para 23][567-E]
                                                                       C
      1.3 The submission that the respondents are pendente lite
transferees, the doctrine of lis pendens applies, and in view of the
clear terms of Rule 102, the objections were not maintainable;
therefore, the respondents are not entitled to the protection of
having an adjudication of their claims in terms of Rule 98, though
attractive at first blush, pales into insignificance in view of the    D
peculiar facts obtaining here. If, indeed, there have been transfers
post dismissal of the Suit during the time when there was no
pending lis, it would be most appropriate for the Executing Court
to determine the question as to whether any of the transfers made
by defendant no. 3 to the respondents would attract Rule 102.          E
This would indeed involve an exercise of leading of evidence by
the parties and merely because the Suit was ultimately decreed
on 21st October 2000 and ultimately was upheld by this Court
with a minor modification of the amount of compensation, that
would not be sufficient justification to throw out the objections
raised by the respondents as being devoid of merit. [Paras 24          F
and 25][567-F-G; 568-A-B]
     1.4 The impugned order of the Executing Court bearing in
mind the unchallenged order dated 5th April 2018 passed by the
High Court has found the objections to be maintainable, at least
warranting an enquiry. On facts, there is no legal infirmity in such   G
order deserving interference. [Para 27][568-E]
       1.5 Simply because this Court did not interfere with the
first appellate decree dated 11th February 2014 is no ground to

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554            SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A     hold that such order would bar an enquiry of the nature
      contemplated by Rule 101. This Court would not allow its vision
      to be colored by treating the order dated 13th October 2014 as
      bringing an end to the controversies between the decree-holders
      and the strangers/third parties, who were not before it. While it
      cannot be gainsaid that the dignity, prestige and majesty of this
B
      Court has to be maintained, yet, merely because the issue
      between the Appellants on the one hand and defendant nos. 2
      and 3 on the other has attained finality, the same would not afford
      any justification for this Court, much less sufficient justification,
      to uphold the contention of the appellants which has the effect of
C     subverting, rather than effectuating, the substantive right that
      Rules 97 to 103 of Order XXI confer on strangers/third parties
      not bound by the decree for recovery of possession. The claim
      regarding right, title and interest in respect of their respective
      shares in the decretal property, as raised by the respondents,
      cannot be thrown out at the threshold since it is well within their
D
      rights to contest the application under Order XXI Rule 97, CPC
      filed by the appellants. Since evidence is required to be led before
      it, the Executing Court was well-nigh justified in holding the
      objections to be maintainable at this stage not in the sense that
      the decree cannot be executed against them but in the sense
E     that a prima facie case had been set up for an enquiry to be
      conducted, and posting the matter for evidence to be led by the
      parties. Upon determination of the questions referred to in Rule
      101, the Executing Court would proceed in the manner mandated
      by Rule 98. [Para 28][568-E-H; 569-A-C]
F            1.6 This Court should not entertain the appeals against the
      order of the Executing Court without such order having been
      subjected to any challenge by the Appellants before the High
      Court. Litigants should not be indulged to hop, skip and jump to
      reach the Supreme Court for no better reason than the remedy
      is quick and more efficacious. As a matter of practice, the Supreme
G     Court in its discretion does entertain special leave petitions
      directly from orders of tribunals/courts without the High Court
      having been approached only in matters where substantial
      questions of general importance are involved or where a similar
      issue is pending for its (the Supreme Court’s) consideration. The
H
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                    555


power to grant leave under Article 136 itself being discretionary,    A
this Court would not allow a party invoking the ‘special leave’
jurisdiction to bypass the remedy available at the level of the
High Court without the two situations being satisfied. Indeed,
this is not one such case. [Para 29][569-D-F]
      1.7 There is no reason to interfere with the order under        B
challenge. It is upheld. The Executing Court shall proceed to
deal with the application of the appellants under Rule 97 of Order
XXI CPC together with the objections raised by the respondents
on their own merits and without being influenced by any
observation made in this order which has been necessitated only
for disposal of the present appeals. Having regard to the fact that   C
the appellants have been deprived of the fruits of the Decree for
over two decades, it would only be just and proper to request the
Executing Court to proceed to decide the contentious issues in
accordance with law as early as possible without granting
unnecessary adjournments to any of the parties. [Para 30-32][569-     D
G-H; 570-A-B]
      1.8 The Contempt Petition initiated by the appellants to
punish defendant nos. 2 and 3 for willful disobedience of the order
passed by this Court in Special Leave Petition (C) No. 24344/
2014, at this stage, does not survive; hence, is dismissed. [Para     E
33][570-C]
      The General Manager of The Raj Durbhunga, Under
      the Court of Wards vs. Maharajah Coomar Ramaput
      Singh (1871-72) 14 Moo IA 605; Kuer Jang Bahadur
      vs. Bank of Upper India Ltd. Lucknow AIR 1925 Oudh              F
      448; Martin Burn Ltd. vs. Corporation of Calcutta AIR
      1966 SC 529 : [1966] SCR 543; Usha Sinha vs. Dina
      Ram (2008) 7 SCC 144 : [2008] 4 SCR 1192; Board of
      Trustees vs. Nikhil Gupta (2015) 10 SCC 1339; Sriram
      Housing Finance and Investments India Ltd. vs. Omesh
      Mishra Memorial Charitable Trust (2022) SCC OnLine              G
      SC 794; Firm Ganpat Ram Rajkumar vs. Kalu Ram and
      Ors. (1989) Supp 2 SCC 418 : [1989] 1 Suppl. SCR
      223; Cheeranthoodika Ahmmedkutty & Anr. vs.
      Parambur Mariakutty Umma & Ors. (2000) 2 SCC 417
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556          SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A          : [2000] 1 SCR 725; Brahmdeo Chaudhary vs.
           Rishikesh Prasad Jaiswal (1997) 3 SCC 694 : [1997] 1
           SCR 463; T Vijendradas & Anr. vs. M. Subramanian &
           Ors. (2007) 8 SCC 751 : [2007] 10 SCR 880; ITI Ltd.
           v. Siemens Public Communications Network Ltd (2002)
B          5 SCC 510 : [2002] 3 SCR 1122; Columbia Sportswear
           Company v. Director of Income Tax, Bangalore (2012)
           11 SCC 224 : [2012] 7 SCR 187; Asgar vs. Mohan
           Verma (2020) 16 SCC 230 : [2019] 2 SCR 664;
           Bhanwar Lal vs. Satyanarain (1995) 1 SCC 6 : [1994]
           4 Suppl. SCR 208; Noorduddin v. Dr. K.L. Anand (1995)
C          1 SCC 242 : [1994] 4 Suppl. SCR 322; Babulal v. Raj
           Kumar & Ors. (1996) 3 SCC 154 : [1996] 2 SCR 763;
           Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr. (1998)
           3 SCC 723 : [1998] 2 SCR 587 – referred to.
                           Case Law Reference
D
      AIR 1925 Oudh 448               referred to          Para 2
      [1966] SCR 543                  referred to          Para 3
      [2008] 4 SCR 1192               referred to          Para 11 (a)
      (2015) 10 SCC 1339              referred to          Para 11 (b)
E
      [1989] 1 Suppl. SCR 223         referred to          Para 11 (d)
      [2000] 1 SCR 725                referred to          Para 13 (b)
      [1997] 1 SCR 463                referred to          Para 13 (e)
F     [2007] 10 SCR 880               referred to          Para 13 (f)
      [2002] 3 SCR 1122               referred to          Para 13 (g)
      [2012] 7 SCR 187                referred to          Para 13 (h)
      [2019] 2 SCR 664                referred to           Para 17
G     [1994] 4 Suppl. SCR 208         referred to          Para 18
      [1994] 4 Suppl. SCR 322         referred to          Para 19
      [1996] 2 SCR 763                referred to          Para 20
      [1998] 2 SCR 587                referred to          Para 22
H
    JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                       557


      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3758-                  A
3796 of 2023.
      From the Judgment and Order dated 29.06.2018 of the Principal
Sub-Judge, Kottayam, Kerala in EA Nos. 299, 300, 302, 303, 304, 305,
307, 308, 309, 310, 311, 312, 313, 319, 320, 321, 322, 323, 324, 325, 335,
344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358,   B
364, 365 of 2017 and 127 of 2018.
         With
      Contempt Petition (C) No. 2091 of 2018 in Special Leave Petition
(C) No. 24344 of 2014.
                                                                             C
      Shyam Divan, Arvind Minocha, Sr. Advs., George Cherian,
Mayank Kshirsagar, Ms. Abha Goel, Ms. Anshula Laroiya, Advs. for
the Appellants.
      V. Chitambaresh, Sr. Adv., T. G. Narayanan Nair, M. T. George,
Mrs. Susy Abraham, Johns George, C. Venugopal, Ms. Sonal Gupta, K.           D
V. Mohan, Ms. Tessy Varghese, Ms. Tatwender Kaur, K.K. Vinosh,
Advs. for the Respondents.
         The Judgment of the Court was delivered by
         DIPANKAR DATTA, J.
                                                                             E
           Leave granted.
       2. More than a century and a half back, the Privy Council (speaking
through the Right Hon. Sir James Colville) in The General Manager
of The Raj Durbhunga, Under the Court of Wards vs. Maharajah
Coomar Ramaput Singh1 lamented that the difficulties of litigants in         F
India indeed begin when they have obtained a decree. A reference to
the above observation is also found in the decision of the Oudh Judicial
Commissioner’s Court in Kuer Jang Bahadur vs. Bank of Upper
India Ltd. Lucknow2. It was ruled there that the Courts had to be
careful to ensure that the process of the Court and the laws of procedure
were not abused by judgment-debtors in such a way as to make the             G
courts of law instrumental in defrauding creditors, who had obtained
decrees in accordance with their rights.

1
    (1871-72) 14 Moo IA 605
2
    AIR 1925 Oudh 448                                                        H
558                 SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A            3. Notwithstanding the enormous lapse of time, we are left
      awestruck at the observation of the Privy Council which seems to have
      proved prophetic. The observation still holds true in present times and
      this case is no different from cases of decree-holders’ woes commencing
      while they are in pursuit of enforcing valid and binding decrees passed
      by civil courts of competent jurisdiction. The situation is indeed disquieting,
B
      viewed from the perspective of the decree-holders, but the law, as it
      stands, has to be given effect whether the court likes the result or not. In
      Martin Burn Ltd. vs. Corporation of Calcutta 3, this Court held that
      a court has no power to ignore that provision to relieve what it considers
      a distress resulting from its operation.
C             4. The challenge in these civil appeals by the Appellants herein,
      daughter and son of Mrs. Tara Cherian (“Mrs. Cherian”, hereafter), is
      to the common interim order of the Principal Sub-Judge, Kottayam, (“the
      Executing Court”, hereafter) dated 29th June, 2018. The Executing Court
      was seized of an execution application under Section 47 read with Order
D     XXI Rule 97 of the Civil Procedure Code, 1908 (“CPC”, hereafter) filed
      by the Appellants, seeking enforcement of the decree dated 21st October,
      2000 (“Decree”, hereafter) and removal of resistance put forth by the
      contesting respondents herein (“Respondents”, hereafter). By the
      impugned order, the Executing Court held several objections filed by the
      Respondents to be maintainable and deemed it necessary to adjudicate
E     the same on their own merits, after due recording of evidence.
             5. Having regard to the nature and extent of controversy raised, a
      decision on these appeals should not have necessitated noting the facts
      triggering the appeals and the rival contentions advanced across the bar
      in any great depth; however, since the parties have addressed us at
F     length, we propose to briefly narrate the essential facts and refer to the
      rival claims as advanced by learned senior counsel for the parties before
      recording our conclusions on such claims.
            6. The basic facts arising from the two sets of proceedings, which
      we would presently advert to, are intertwined; hence, it is considered
G     appropriate to dissect the same for facility of appreciation.
               7. The first part of the factual matrix is that:
               a.     Mrs. Cherian, as the original plaintiff, instituted OS No. 28/
                      1987 (“the Suit”, hereafter) inter alia against Mr. V.T.
      3
H         AIR 1966 SC 529
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                        559
               [DIPANKAR DATTA, J.]

         Mathew [defendant no.1], his sons [defendant no. 2, Mr.          A
         Thomas Mathew (“Mr. Thomas”, hereafter) and defendant
         no. 3, Mr. Abraham Mathew (“Mr. Abraham”, hereafter),
         and Mr. Mathew’s assistant defendant no. 4, Mr. K.T.
         Joseph (“the Defendants”, wherever referred to collectively,
         hereafter) for declaration of title of Mrs. Cherian in respect
                                                                          B
         of land measuring in excess of 2.81 acres in Village
         Nattakom, Kottayam, Taluk, Kottayam District, Kerala
         (“Suit Property”, hereafter), and recovery of possession
         with mesne profits from the Defendants.
    b.   Mrs. Cherian contended that Mr. Mathew, the caretaker of
         the Suit Property, had intended to purchase the same from        C
         her deceased husband, that the sale had not been completed
         as balance consideration was still to be paid, and that in the
         interim the Defendants had made constructions on the Suit
         Property. The Defendants contended that they were tenants
         in respect of the Suit Property through an oral lease            D
         agreement with Mrs. Cherian’s deceased husband and his
         brothers and were entitled to fixity of tenure under the
         provisions of the Kerala Land Reform Act, 1963 (for brevity
         “KLR Act”, hereafter).
    c.   In course of trial of the Suit, the question of tenancy was      E
         referred by the trial court to the Land Tribunal under Section
         125(3) of the KLR Act. In R.C. No. 84/1988, the Land
         Tribunal found that Mr. Mathew was a cultivating tenant
         entitled to protection under the KLR Act. Based on the
         observation of the Land Tribunal, the Suit was dismissed
         by the trial court on 16th November 1989. Challenging the        F
         dismissal of the Suit, Mrs. Cherian filed A.S. No. 27/1991
         before the High Court.
    d.   Mr. Mathew passed away on 18th January 1998, and the
         proceedings before the High Court continued with his sons
         Mr. Thomas and Mr. Abraham contesting the appeal.                G
    e.   The High Court, allowed A.S. No. 27/1991 on 18th December
         1998, and opined that the Defendants were not entitled to
         fixity of tenure. The Suit was remanded to the trial court
         for adjudication on other issues.
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560              SUPREME COURT REPORTS                        [2023] 5 S.C.R.


A           f.     A Division Bench of the High Court while hearing CMA
                   No. 34/1999, being an appeal against the aforementioned
                   order of the Single Judge, dismissed the same on 13th
                   December 1999, and confirmed that Mr. Mathew had only
                   been the caretaker of the Suit Property.
B           g.     Upon remand, the Suit was decreed on 21st October 2000,
                   in favour of Mrs. Cherian and the Defendants were directed
                   to put Mrs. Cherian in possession of the Suit Property.
            h.     Mr. Thomas and Mr. Abraham filed A.S. No. 219/2001
                   before the High Court. It was partly allowed on 11 th
C                  February 2014, inter alia, to the extent that the Decree
                   was modified whereby Mrs. Cherian was required to deposit
                   Rs. 25,99,250 as compensation in lieu of part-payment of
                   the purchase consideration paid by Mr. Mathew, after which
                   the Defendants would surrender vacant possession of the
                   decretal property to her.
D
            i.     The order dated 11th February 2014 was carried before
                   this Court by Mr. Thomas and Mr. Abraham in S.L.P. (C)
                   No. 24344/2014. On 13th October 2014, this Court while
                   disposing of the said petition marginally enhanced the
                   compensation to Rs. 30,00,000.00. The Appellants were
E                  directed to deposit the balance compensation, whereafter
                   the Defendants were required to handover possession of
                   the decretal property to the Appellants; the Decree was
                   otherwise kept undisturbed.
             8. This being one part of the factual matrix, we proceed to notice
F     the other part. It begins with proceedings under the KLR Act, being
      S.M. Nos. 107/1992 and 55-56/1989 before the Land Tribunal. On 23rd
      January 1993, the Land Tribunal issued a Purchase Certificate to Mr.
      Mathew in S.M. No. 107/1992, whereby Mr. Mathew was conferred
      the status of a cultivating tenant. Pertinently, Mrs. Cherian was put on
G     notice but did not ultimately contest the proceedings. After obtaining the
      Purchase Certificate, parcels of the decretal property were sold by Mr.
      Mathew to some of the Respondents. Certain other Respondents were
      also issued Purchase Certificates in S.M. No. 55/1989 and S.M. No. 56/
      1989 qua parcels of the decretal property during the period intervening
      between institution of the Suit and much before the same was decreed
H     on 21st October 2000.
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                          561
               [DIPANKAR DATTA, J.]

       9. The following subsequent events are of further importance to      A
the instant case:
      a.    The Executing Court on 27th May 2017, in E.P. No. 379/
            2012, accepted the Appellants’ prayers for delivery of the
            decretal property, appointed an Advocate Commissioner,
            and issued directions to deliver possession of the decretal     B
            property within 10 days of the order, with the help of the
            relevant Sub-Inspector of Police.
      b.    The Commissioner, on 23rd June 2017, submitted a report to
            the effect that the Respondents objected to the delivery of
            possession to the Appellants.                                   C
      c.    Subsequently, certain Respondents as objectors filed multiple
            objections in the main execution proceedings objecting to
            the execution of the Decree and refusing to give possession
            to the Appellants. They inter alia contended that they were
            not aware of the proceedings in the Suit and became aware       D
            of the same only when the Commissioner attempted to take
            delivery of possession as per the order of the Executing
            Court on 27th May 2017.
      d.    The Appellants then filed a petition before the High Court
            under Article 227 of the Constitution of India. On 5th April    E
            2018, a Single Judge of the High Court directed the
            Executing Court to consider the Appellants’ contentions on
            the objections filed by the Respondents and decide the same
            on or before 30th June 2018.
      e.    Upon a contested hearing, the Principal Sub-Judge,              F
            Kottayam, being the Executing Court, passed the present
            impugned interim order on 29th June 2018.
      10. Mr. Diwan, learned senior counsel for the Appellants
contended that:
      a.    The pleadings in S.L.P. (C) No. 24344/2014, filed by Mr.        G
            Thomas and Mr. Abraham, made no disclosure of anyone
            else being in possession of the decretal property. Further,
            the conduct of the Respondents was in wilful disobedience
            of the Decree passed by the trial court and its affirmation
            up to and by this Court. The Respondents had no rights in
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562                 SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A                     the decretal property and hence no locus standi in the
                      matter to resist the Decree which was made two decades
                      back.
               b.     The contentions of the Respondents are based on Purchase
                      Certificate being SM No. 197/1992, obtained by Mr.
B                     Mathew from the Land Tribunal, Kottayam. However, the
                      Respondents held no title to the said properties as the person
                      from whom the title flowed, i.e., Mr. Mathew himself had
                      no title to the decretal property.
               c.     The persons alleging to have purchased different plots in
C                     the decretal property from Mr. Mathew did not produce
                      documents of title along with their objection petitions in the
                      Executing Court.
               d.     The objections are frivolous and not maintainable and in
                      the light of the order of this Court dated 13th October 2014,
D                     in SLP (C) No. 24344/2014, which had given finality to these
                      proceedings, the conduct of the Respondents has the effect
                      of nullifying such order.
               e.     The Appellants had already deposited Rs. 30,00,000 with
                      the trial court in compliance with this Court’s directions on
                      13th October 2014, and that the Respondents were enjoying
E
                      the decretal property without delivering possession to the
                      Appellants.
               f.     As per Section 52 of the Transfer of Property Act, 1882,
                      the aforesaid transfers are hit by lis pendens, and were
                      impermissible; also, in view of Rule 102 of Order XXI of
F                     the CPC, Rules 98 and 100 thereof would not be attracted
                      and the Executing Court misdirected itself in holding the
                      objections of the Respondents to be maintainable.
              11. Mr. Diwan cited the following decisions of this Court in support
      of his contentions:
G
               a.     Usha Sinha vs. Dina Ram4, where this Court, inter alia,
                      held that a pendente lite purchaser had no right to offer
                      resistance or cause obstruction as the purchaser’s rights
                      had not been crystallised in a decree.

H     4
          (2008) 7 SCC 144
    JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                       563
                   [DIPANKAR DATTA, J.]

        b.   Board of Trustees vs. Nikhil Gupta5, where this Court           A
             issued directions to the obstructionists to handover
             possession to the petitioner therein in a case where a decree
             of eviction was obtained after three decades of litigation.
        c.   Sriram Housing Finance and Investments India Ltd.
             vs. Omesh Mishra Memorial Charitable Trust6, where              B
             this Court expounded that Order XXI Rule 97 empowers a
             decree-holder to make an application complaining about any
             resistance or obstruction in possession of immovable
             property and that Rule 102 also clarified that Rules 98 and
             100 would not apply in cases where resistance or obstruction
             in execution was offered by a transferee pendente lite,         C
             where the property was transferred by a judgment debtor
             to such a person after the institution of a suit in which the
             decree sought to be executed was passed.
        d.   Firm Ganpat Ram Rajkumar vs. Kalu Ram and Ors 7,
             where this Court held that non-compliance of the orders of      D
             the Supreme Court, with an objective to mislead the Court,
             should not lead to frustration of the order.
      12. Mr. Diwan, accordingly, appealed that justice of the case
demands setting aside of the impugned order and a direction on the
Executing Court to put the Appellants in possession of the decretal          E
property after removing the obstructions raised by the Respondents.
      13. Per contra, Mr. Chitambaresh, learned senior counsel
appearing for the Respondents contended that:
        a.   Mr. Mathew was a tenant of the entire decretal property         F
             and on a part thereof he along with Mr. Thomas and Mr.
             Abraham Mathew had constructed buildings. In S.M. No.
             107/1992 before the Land Tribunal, Mrs. Cherian was a
             party, yet, she did not challenge the Purchase Certificate
             after it was issued in favour of Mr. Mathew. Further, two
             other Purchase Certificates had been issued by the Land         G
             Tribunal to certain Respondents in the proceedings being
             SM Nos. 55 and 56/1989.
5
  (2015) 10 SCC 1339
6
  (2022) SCC OnLine SC 794
7
  (1989) Supp 2 SCC 418                                                      H
564               SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A            b.     In terms of the decision of this Court in Cheeranthoodika
                    Ahmmedkutty & Anr. vs. Parambur Mariakutty
                    Umma & Ors8, where it was held that in the absence of
                    any material to doubt the veracity of the Purchase
                    Certificates due weight should have been given to them as
                    per law, it was submitted that the Purchase Certificate issued
B
                    in suo motu proceedings under Section 72K of the KLR
                    Act in favour of inter alia Mr. Mathew was conclusive
                    proof of his title, and since the same has remained
                    unchallenged, would operate as res judicata.
             c.     The Respondents as objectors had set up title, independent
C                   of the judgment-debtors, and that their objection deserved
                    to be adjudicated by the Executing Court.
             d.     That apart, the Executing Court had only held the objectors’
                    applications to be maintainable; in such circumstances, this
                    Court ought not to interfere when adjudication on merits
D                   was yet to be made.
             e.     Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal9,
                    is an authority for the proposition that a claim filed pursuant
                    to Section 47 read with Order XXI Rule 97 CPC is
                    maintainable despite the right being independent of that of
E                   the judgment-debtor.
             f.     The decision in T Vijendradas & Anr. vs. M.
                    Subramanian & Ors10 has held that if any judgment or
                    order was obtained by fraud, then the same is a nullity; and
                    since the judgment in A.S. No. 27/1991 was obtained without
                    impleading all the legal representatives of Mr. Mathew, for
F
                    this reason, the proceedings are vitiated by fraud and a nullity
                    due to suppressio veri.
             g.     In ITI Ltd. v. Siemens Public Communications
                    Network Ltd11, this Court had noted that despite the vast
                    powers it had to directly entertain an appeal, litigants should
G                   not be encouraged to bypass other available remedies in
                    the potential hope of a more efficacious remedy.
      8
        (2000) 2 SCC 417
      9
        (1997) 3 SCC 694
      10
         (2007) 8 SCC 751
H     11
         (2002) 5 SCC 510
 JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                            565
                [DIPANKAR DATTA, J.]

          h.    The Appellants’ conduct in directly approaching this Court     A
                under Article 136 of the Constitution of India without
                invoking the revisional or appellate jurisdiction of the
                appropriate forum is open to criticism based on the decision
                in Columbia Sportswear Company v. Director of
                Income Tax, Bangalore12, where this Court opined that
                                                                               B
                the scope of discretionunder Article 136 of the Constitution
                of India while granting special leave was such that only a
                substantial question of general importance or one already
                pending before this Court should be entertained, especially
                when remedies under Article 226 and/or 227 were available
                on the same grounds before the High Court.                     C
          i.    The question of application of lis pendens doctrine does
                not arise on facts and in the circumstances of the present
                case since the sale transactions were effected when no lis
                was pending.
       14. Resting on the aforesaid contentions, Mr. Chitambaresh urged        D
that no case for interference has been set up by the Appellants and that
the Executing Court ought to be left free to decide the objections on
merits.
       15. The only issue that we are tasked to decide at this stage is,
whether interference with the common order under appeal is called for          E
or not.
       16. In our considered view, for more reason than one, relief claimed
by the Appellants ought to be declined.
        17. Section 47 of the CPC, being one of the most important             F
provisions relating to execution of decrees, mandates that the court
executing the decree shall determine all questions arising between the
parties to the suit or their representatives in relation to the execution,
discharge, or satisfaction of the decree and that such questions may not
be adjudicated in a separate suit. What is intended by conferring exclusive
jurisdiction on the executing court is to prevent needless and unnecessary     G
litigation and to achieve speedy disposal of the questions arising for
discussion in relation to the execution, discharge or satisfaction of the
decree. Should there be any resistance offered or obstruction raised

12
     (2012) 11 SCC 224                                                         H
566             SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A     impeding due execution of a decree made by a court of competent
      jurisdiction, the provisions of Rules 97, 101 and 98 of Order XXI enable
      the executing court to adjudicate the inter se claims of the decree-holder
      and the third parties in the execution proceedings themselves to avoid
      prolongation of litigation by driving the parties to institute independent
      suits. No wonder, the provisions contained in Rules 97 to 106 of Order
B
      XXI of the CPC under the sub-heading “Resistance to delivery of
      possession to decree-holder or purchaser” have been held by this
      Court to be a complete code in itself in Brahmdeo Chaudhary (supra)
      as well as in a decision of recent origin in Asgar vs. Mohan Verma13.
      In the latter decision, it has been noted that Rules 97 to 103 of Order
C     XXI provide the sole remedy both to parties to a suit as well as to a
      stranger to the decree put to execution.
             18. In Bhanwar Lal vs. Satyanarain14, this Court held that when
      any person, whether claiming derivative title from the judgment-debtor
      or sets up his own right, title or interest de hors the judgment debtor, the
D     executing court whilst executing the decree, in addition to the power
      under Rule 35(3), is empowered to conduct an enquiry whether the
      obstruction by that person is legal or not.
             19. This Court in Noorduddin v. Dr. K.L. Anand15 reiterated
      that the executing court was bound to adjudicate the claim of an
E     obstructionist and to record a finding allowing or rejecting the claim which
      was laid before the executing court, the person being neither a party to
      the earlier proceedings nor the decree being passed against him.
              20. Yet again, in Babulal v. Raj Kumar & Ors.16, this Court
      after setting aside the order impugned held that a determination is required
      to be conducted under Order XXI Rule 98 before removal of the
F     obstruction caused by the objector and a finding is required to be recorded
      in that regard. It was also held that the executing court was required to
      determine the question relating to when the appellants had objected to
      the execution of the decree as against those appellants who were not
      parties to the decree for specific performance.
G           21. The decision in Brahmdeo Chaudhary (supra)cited by Mr.
      Chitambaresh, is also to the same effect.
      13
         (2020) 16 SCC 230
      14
         (1995) 1 SCC 6
      15
         (1995) 1 SCC 242
      16
H        (1996) 3 SCC 154
 JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                             567
                [DIPANKAR DATTA, J.]

       22. Considering the scheme of Order XXI Rules 97 to 106, this            A
Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr.17 found it
difficult to agree with the High Court that resistance or obstruction made
by a third party to the decree put to execution cannot be gone into under
Order XXI Rule 97. Referring to Rules 97 to 106, this Court further held
that they were intended to deal with every sort of resistance or obstruction
                                                                                B
raised by any person and that Rule 97(2) made it incumbent on the court
to adjudicate upon such complaint in accordance with the procedure laid
down. This Court also proceeded to observe:
          “It is clear that executing court can decide whether the
          resistor or obstructer is a person bound by the decree and he
          refuses to vacate the property. That question also squarely           C
          falls within the adjudicatory process contemplated in Order
          21, Rule 97(2) of the Code. The adjudication. mentioned
          therein need not necessarily involve a detailed enquiry or
          collection of evidence. Court can make the adjudication on
          admitted facts or even on the averments made by the resistor.         D
          Of course, the Court can direct the parties to adduce evidence
          for such determination if the Court deems it necessary”.
       23. The long line of precedents notwithstanding, it is indeed true
that in terms of the ordainment of Rule 102 of Order XXI, Rules 98 and
100 thereof would not apply to resistance or obstruction in execution of        E
a decree for the possession of immovable property by a person to whom
the judgment-debtor has transferred the property after the institution of
the suit in which the decree was passed.
      24. The thrust of Mr. Divan’s argument has been that the
Respondents are pendente lite transferees, the doctrine of lis pendens          F
applies, and in view of the clear terms of Rule 102, the objections were
not maintainable; therefore, the Respondents are not entitled to the
protection of having an adjudication of their claims in terms of Rule 98.
      25. The argument, though attractive at first blush, pales into
insignificance in view of the peculiar facts obtaining here. From the           G
factual narrative, it appears that the Suit instituted by Mrs. Cherian in
1987 was initially dismissed on 16th November 1989 and upon an appeal
being preferred in 1991, the Suit was restored to the file of the trial court
by the order of the High Court dated 18th December 1998. If, indeed,
17
     (1998) 3 SCC 723                                                           H
568             SUPREME COURT REPORTS                             [2023] 5 S.C.R.


A     there have been transfers post dismissal of the Suit during the time when
      there was no pending lis, it would be most appropriate for the Executing
      Court to determine the question as to whether any of the transfers made
      by Mr. Mathew to the Respondents would attract Rule 102. This would
      indeed involve an exercise of leading of evidence by the parties and
      merely because the Suit was ultimately decreed on 21st October 2000
B
      and ultimately was upheld by this Court with a minor modification of the
      amount of compensation, that would not be sufficient justification to throw
      out the objections raised by the Respondents as being devoid of merit.
              26. That apart, the effect of the Purchase Certificate obtained by
      Mr. Mathew in proceedings before the Land Tribunal where Mrs. Cherian
C     was noticed on the transfers made in favour of the Respondents, would
      also have to be examined by the Executing Court. Notably, it is the
      contention of the Respondents that the said Purchase Certificate was
      issued in terms of the KLR Act and not only the same went unchallenged
      at the instance of Mrs. Cherian, she did not make any disclosure thereof
D     at any stage of the civil proceedings.
             27. The impugned order of the Executing Court bearing in mind
      the unchallenged order dated 5th April 2018 passed by the High Court
      has found the objections to be maintainable, at least warranting an enquiry.
      On facts, this Court finds no legal infirmity in such order deserving
E     interference.
             28. Now, it is time to consider the effect of the order of this Court
      dated 13th October 2014, whereby the special leave petition of Mr.
      Thomas and Mr. Abraham was disposed of enhancing the compensation
      by a marginal amount. Simply because this Court did not interfere with
F     the first appellate decree dated 11th February 2014 is no ground to hold
      that such order would bar an enquiry of the nature contemplated by
      Rule 101. This Court would not allow its vision to be colored by treating
      the order dated 13th October 2014 as bringing an end to the controversies
      between the decree-holders and the strangers/third parties, who were
      not before it. While it cannot be gainsaid that the dignity, prestige and
G     majesty of this Court has to be maintained, yet, merely because the
      issue between the Appellants on the one hand and Mr. Thomas and Mr.
      Abraham on the other has attained finality, the same would not afford
      any justification for this Court, much less sufficient justification, to uphold
      the contention of the Appellants which has the effect of subverting, rather
H     than effectuating, the substantive right that Rules 97 to 103 of Order
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.                             569
               [DIPANKAR DATTA, J.]

XXI confer on strangers/third parties not bound by the decree for recovery     A
of possession. The claim regarding right, title and interest in respect of
their respective shares in the decretal property, as raised by the
Respondents, cannot be thrown out at the threshold since it is well within
their rights to contest the application under Order XXI Rule 97, CPC
filed by the Appellants. Since evidence is required to be led before it, the
                                                                               B
Executing Court was well-nigh justified in holding the objections to be
maintainable at this stage not in the sense that the decree cannot be
executed against them but in the sense that a prima facie case had
been set up for an enquiry to be conducted, and posting the matter for
evidence to be led by the parties. We are sure that upon determination
of the questions referred to in Rule 101, the Executing Court would            C
proceed in the manner mandated by Rule 98.
       29. Further, Mr. Chitambaresh is right when he submits that this
Court should not entertain the aforesaid appeals against the order of the
Executing Court without such order having been subjected to any challenge
by the Appellants before the High Court. In the decision cited by Mr.          D
Chitambaresh, viz., ITI Ltd. (supra), it was observed that litigants should
not be indulged to hop, skip and jump to reach the Supreme Court for
no better reason than the remedy is quick and more efficacious. As a
matter of practice, the Supreme Court in its discretion does entertain
special leave petitions directly from orders of tribunals/courts without
the High Court having been approached only in matters where substantial        E
questions of general importance are involved or where a similar issue is
pending for its (the Supreme Court’s) consideration. The decision in
Columbia Sportswear Company (supra)is to that effect. However,
these are cases which are few and far between. The power to grant
leave under Article 136 itself being discretionary, this Court would not       F
allow a party invoking the ‘special leave’ jurisdiction to bypass the remedy
available at the level of the High Court without the two situations, as
aforesaid, being satisfied. Indeed, this is not one such case.
       30. For the foregoing reasons, we find no reason to interfere with
the order under challenge. It is upheld and the appeals stand dismissed,       G
without any order for costs.
       31. It is made clear that the Executing Court shall proceed to deal
with the application of the Appellants under Rule 97 of Order XXI of the
CPC together with the objections raised by the Respondents on their
own merits and without being influenced by any observation made in             H
570             SUPREME COURT REPORTS                             [2023] 5 S.C.R.


A     this order which has been necessitated only for disposal of the present
      appeals.
             32. Having regard to the fact that the Appellants have been
      deprived of the fruits of the Decree dated 21st October 2000 for over
      two decades, it would only be just and proper to request the Executing
B     Court to proceed to decide the contentious issues in accordance with
      law as early as possible without granting unnecessary adjournments to
      any of the parties. It would, thus, be eminently desirable if the proceedings
      are completed within 18 months of receipt of a copy of this judgment
      and order.
C            33. In view of the aforesaid order, Contempt Petition (C) No.
      2091/2018 initiated by the Appellants to punish Mr. Thomas and Mr.
      Abraham for willful disobedience of the order dated 13th October, 2014
      passed by this Court in Special Leave Petition (C) No. 24344/2014, at
      this stage, does not survive; hence, the same stands dismissed.

D
      Nidhi Jain                              Appeals and contempt petition dismissed.
      (Assisted by : Tamana, LCRA)




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F




G




H