Holding

The obstructionists failed to prove prior possession, so the execution court’s order under Order 21 Rule 97 stands and the High Court’s reversal is set aside.

Summary

P. Janardhana Rao obtained a decree for possession of his property in an ejectment suit filed in 1989. When the decree was executed, three persons (Kannan, Krishnan and Raji) obstructed his taking possession, prompting Rao to file a miscellaneous petition under Order 21 Rule 97 of the CPC for removal of the obstruction. The execution court allowed the petition, finding that the obstructionists had produced no evidence of prior possession. The obstructionists appealed to the Madras High Court under Section 115 CPC, which reversed the lower court’s order, holding that they had been in possession since 1965/1980. On appeal, the Supreme Court held that the obstructionists failed to prove any possession before the filing of the ejectment suit and that the evidence of possession only began in 1989; consequently, the High Court’s decision was erroneous. The Supreme Court set aside the High Court order, restored the execution court’s order, and allowed the appeal.

Issues considered

Whether the obstructionists had sufficient evidence to establish prior possession of the suit property before the filing of the ejectment suit.
Whether the execution court was correct in allowing the decree‑holder’s application under Order 21 Rule 97 CPC.
Whether the High Court erred in reversing the execution court’s order on the basis of alleged earlier possession.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 97, s. Section 115

Subjects

Order 21 Rule 97ejectment suitpossessionexecution proceedingsrevision under CPCevidence of possessiondecree holderobstruction

Judgment

A P. JANARDHANA RAO.
v.
KANNAN AND ORS.
.,
'
OCTOBER 12, 2004

B [ASHOK BHAN AND S.H. KAPADIA, JJ.]

Civil Procedure Code, 1908; Order 21 Rule 97:

Suit for ejectment-Decreed by Court of Small Causes-Delivery of
C possession resisted-:-petition for removal of obstruction-Allowed by execution
Court on ground that no evidence ofpossession furnished by obstructionists-
Reversed by· High Court-On appeal, .Held: Obstructionists failed to produce ·
any evidence to show that they were in possession of suit property prior to ·
filing of ejectment suit-Apparently evidence has been created since filing of
D the suit-Merely because a prosecution witness stated, it would not be sufficient
to conclude that obstructionists resided in the suit property for the alleged
period-High Court has failed to appreciate entire evidence on record-Trial
Court rightly decreed the suit-Order of the High Court set aside and that of
the executing Court restored

E An ejectment suit filed by the appellant was decreed by the Court .
of Small Causes. Appellant filed an execution petition for delivery of
possession, which was resisted by three obstructionists. Appellant-decree
holder preferred a miscellaneous petition under Order 21 Rule 97 CPC
for removal .of ob~truction, which was allowed by the Executing Court
holding that no evidence of possession produced by the obstructionists for
F . the relevant period as claimed. Revision petition filed by the obstructionists
was allowed. by the High Court. Hence the present appeal.

Allowing the appeal, the Court

HELD: I.I. 0. 21 R.97. CPC is the provision for removal of the
G person bound by the decree who does not vacate. It takes into account a
situation where resistance to possession is offered by the judgment-debtor
or any other person bound by the decree which would indude .the claim
of a person who claims to be in possession in his own right and
independently of the judgment-debt-Or but whose claim e_x~facie is
H 3«
P. JANARDHANA RAO v. KANNAN 345

unsustainable. Where, however, resistance is offered or where obstruction A
proceeds from the claimant claiming to be in possession in his own right
and whose claim cannot be rejected on the ground of want of good faith,
without investigation, the decree-holder must also proceed under Order
21 Rule 97. [347-E, FJ

Ragho Prasad v. Pratap Narain Agarwal, (1969) All.L.J. 929, referred B
to.

1.2. In the present case, it was the case of the obstructionists that
they were in possession of the suit property since 1965. However, no
evidence was produced by them. On the contrary, RWl stated in his
evidence that he started paying property tax from 1989 and that prior C
thereto he had not paid the property tax. PWl instituted an ejectment suit
in the Small Causes Court in 1989. Therefore, the evidence has been
created by the obstructionists only from 1989. (349-DJ

Noorduddin v. Dr. K.L. Anand, (1995) 1 SCC 242, relied on. D
1.3. The Trial Court was right in examining the entire evidence on
record and coming to the conclusion that there was no evidence from the
side of the obstructionists to show that they were in possession of the suit
premises prior to the filing of ejectment suit. On the contrary, the property
tax receipts show that the obstructionists have entered into occupation E
from 1989. The High Court has failed to appreciate the entire evidence
on record. Mere fact that PWl knew the three obstructionists from \980
would not be sufficient to conclude that the three obstructionists came to
reside in the suit property from 1965, as alleged. There is no evidence of
residence from the side of the obstructionists between 1965 and 1989. In
the circumstances, the High Court erred in dismissing the decree holder's F
application under Order 21 Rule 97 CPC. (349-F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1664 of
1998.

From the Judgment and Order dated 12.11.97 of the Madras High G
Court in C.R.P. No. 2960 of 1995.

Ram Lal Roy for R.N. Keshwani for the Appellant.

R. Ayyam and Perumal for the Respondents.
H
346 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A The Judgment of the Court was delivered by

KAPADIA, J. Being aggrieved by the judgment and order dated
12.l l.1997 passed by.the High Court of Madras in C.R.P. No.2960of1995,
dismissing Miscellaneous Petition No.600of1991 made by the decree holder
under Order 21 Rule 97 of Code of Civil Procedure, this civil appeal has
B been preferred by grant of special leave.

For the sake of convenience, the parties herein are referred to as they
are arrayed in the Executing Court.

The facts giving rise to this civil appeal are as follows:
c
P. Janardhana Rao, the plaintiff filed an Ejectment Suit No.44 of 1989
in the Court of Small Causes, Madras for getting possession from Chelladurai
and Bhagyalakshmi. The suit was decreed on 31.7.1990. Pursuant to the said
decree, the plaintiff filed Execution Petition no.175 of 1991 for obtaining
delivery of possession. Three obstructionists Kannan, Krishnan and Raji
D resisted the plaintiffdecree holder from taking possession. fn view of the said
obstruction, the decree holder preferred miscellaneous petition No.600 of
i 991 under order 21 rule 97 CPC for removal of the obstruction put up by
the aforestated three obstructionists (respondents herein).

E In the said miscellaneous petition no.600/1991, the executing Court
recorded the evidence. PWl deposed that in 1982 he purchased the suit
property admeasuring 2300 sq. ft. situate in Friends A venue, Razack Garden,
Arumbakkam, Madras-106 vide Ex.Pl, from Srinivasa Iyengar; that in 1982
when he bought the suit property, the three obstructionists were not there;
that he had engaged two labourers, Chelladurai and Bhagyalakshmi, to
F construct his house; that on completion, Chelladurai and Bhagyalakshmi
refused to vacate and, therefore, PW! instituted the ejectment suit no.44 of
1989 in the Court of Small Causes, Madras. The suit was decre~d. Appeal
therefrom was dismissed. PW! in his deposition further stated that the
aforestated three obstructionists Kannan, Krishnan and Raji were put up by
G the judgment-debtors. In cross-examination, PWl stated that he knew Kannan,
Krishnan and Raji since 1980. He further stated that there were three houses
in the suit property since 1980.

RWI, Thiru Krishnan, one of the obstructionists; deposed in his evidence.
that they were residing in the suit property from 1965; that the three houses
H
P. JANARDHANA RAO v. KANNAN [KAPADIA, J.] 347

belonged to them; that he resided in Vathalagundu Arumugam Nagar abutting A
Friends Avenue; that since 1965, he has been residing in Vathalagundu
Arumugam Nagar; that he did not possess electricity bills of 1965; that he
had not encroached upon the suit property; that he had electricity bills of
1993; that he had constructed a house on the suit property in 1965; and that
he had paid property taxes only after 1989.
B
On the above evidence, the executing Court allowed the miscellaneous
petition no.600of1991, holding that there was no evidence of possession of
the obstructionists from 1965 as claimed.

Being aggrieved, the obstructionists came before the High Court by C
way ofrevision under section 115 CPC. By the impugned judgment, the High
.
_ Court allowed the revision instituted by the obstructionists and dismissed the
application of the decree-holder under order 21 rule 97, holding, that the
three obstructionists were in occupation since 1980 i.e. prior to filing of the
Ejectment Suit No.44/1989. The High Court further held that there was no
evidence to show that the three obstructionists were inducted by the judgment- D
debtors.,. In this connection, the High Court relied upon the statement of
PW I that he knew the obstructionists since 1980 and that they were residing
in the houses in the suit property from 1980. Consequently, the revision filed
by the three obstructionists was allowed. Hence, this civil appeal.

Order 21 Rule 97 CPC is the provision for removal of the person bound E
by the decree who does not vacate. It takes into account a situation where
resistance to possession is offered by the judgment-debtor or any other person
bound by the decree which will include the claim of a person who claims to
be in possession in his own right and independently of the judgment-debtor
but whose claim ex-facie is unsustainable. Where, however, resistance is F
offered or where obstruction proceeds from the claimant claiming to be in
possession in his own right and whose claim cannot be rejected on the ground
of want of good faith, without investigation, the decree-holder must proceed
under order 21. rule 97. [See: Ragho Prasad v. Pratap Narain Agarwal,
reported in (l 969) All. L.J. 929].
G
In the case of Noorduddin v. Dr. K. L. Anand reported in [ 1995] I SCC
242], it has been held as follows:

- "8. Thus, the scheme of the Code clearly adumbrates that when
an application has been made under Order 21, Rule 97, the court is H
348 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A enjoined to adjudicate upon the right, title and interest claimed in the
property arising between the parties to a proceeding or between the
decree-holder and the person claiming independent right, title or
interest in the immovable property and an order in that behalf be
made. The determination shall be conclusive between the parties as
if it was a decree subject to right of appeal and not a matter to be
B agitated by a separate suit. In other words, no other proceedings were
allowed to be taken. It has to be remembered that preceding Civil
Procedure Code Amendment Act, 1976, right of suit under Order 21,
Rule I 03 of 1908 Code was available which has been now taken
away. By necessary implication, the legislature relegated the parties
c to an adjudication of right, title or interest in the immovable property
under execution and finality has been accorded to it. Thus, the scheme
of the Code appears to be to put an end to the protraction of the
ex7cution and to shorten the litigation between the parties or persons
claiming right, title and interest in the immovable property in
execution.
D
9. Adjudication before execution is an efficacious remedy to prevent
fraud, oppression, abuse of the process of the court or miscarriage of
justice. The object of law is to mete out justice. Right to the right,
title or interest of a party in the immovable property is a substantive
E right. But the right to an adjudication of the dispute in that behalf is
a procedural right to which no one has a vested right. The faith of the
people in the efficacy of law is the saviour and succour for the
sustenance of the rule of law. Any weakening like in the judicial
process would rip apart the edifice of justice and create a feeling of
disillusionment in the minds of the people of the very law and courts.
F The rules of procedure have been devised as a channel or a means to
render substantive or at best substantial justice which is the highest
interest of man and almameter (sic) for the mankind. It is a foundation
for orderly human relations. Equally the judicial process should never
become an instrument of oppression or abuse or a means in the process
G of the court to subvert justice. The court has, therefore, to wisely
evolve its process to aid expeditious adjudication and would preserve
the possession of the property in the interregnum based on factual
situation. Adjudication under Order 21, Rules 98, 100 and 101 and its
successive rules is sine qua non to a finality of the adjudication of the
right, title or interest in the immovable property under execution.
H
P. JANARDHANA RAO v. KANNAN [KAPADIA, J.] 349

10. The question is whether the executing court was right in dismissing A
the application on the ground that the dispute was adjudicated in
RF A No.305 of 1986 or as held by the High Court that the dispute
was decided in the writ proceedings referred to earlier. The execution
court is enjoined to adjudicate the claim or the objection or the claim
to resistance. As seen, Rule 97 enables such a person to make an B
application which must .be independent of the judgment-debtor or a
person having derivate right from the judgment-debtor. The applicant
in his own right must be in possession of the property."

Applying the above tests, we may now examine the question whether
the obstructionists were in possession of the property in their own right, as C
claimed. In this regard, we may now examine the evidence on record.

PWl, in his examination-in-chief, deposed that the three obstructionists
were set up by the said Chelladurai and Bhagyalakshmi. It was the case of
the obstructionists that they were in possession of the suit property since
1965. However, no evidence was produced. On the contrary, RWl stated in D
his evidence that he started paying property tax from 1989 and that prior
thereto he had not paid the property tax. As stated above, PW l instituted the
ejectment suit in the Small Causes Court in 1989. Therefore, the evidence has
been created by the obstructionists only from 1989. No electricity bills from
1965 onwards have been produced. No ration card has been produced. No E
proof of residence from 1965 has been produced. The High Court has relied
upon the statement of PWl stating that he knew three obstructionists since
1980 and that three houses existed in the suit property from 1980. In our
view, the trial Court was right in examining the entire evidence on record and
coming to the conclusion that there was no evidence from the side of the
obstructionists to show that they were in possession of the suit premises prior F
to the filing of ejectment suit no.44of1989. As stated above, on the contrary,
the property tax receipts show that the obstructionists have entered into
occupation from 1989. The High Court has failed to appreciate the entire
evidence on record. Merely because PWI knew the three obstructionists from
1980 would not be sufficient to conclude that three obstructionists came to G
..... reside in the suit property from 1965, as alleged. There is no evidence of
residence from the side of the obstructionists between .1965 and 1989. In the
circumstances, the High Court erred in dismissing the decree holder's
application under order 21 rule 97 CPC.

For the reasons stated above, the appeal is allowed. The impugned H
350 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A judgment and order of the High Court is set aside and that of the execution
Court is restored. The said miscellaneous petition no.600 of 1991 in execution
petition no.175 of 1991 is made absolute. However, in the facts and
circumstances of the case, there shall be no order as to costs.

S.K.S. Appeal .allowed.
B