Holding

Order 21 Rule 104 of the CPC does not apply where the suit challenging the decree is filed after the commencement of execution proceedings, and the burden of proving a fabricated agreement cannot be shifted to the respondent.

Summary

The respondent obtained a decree for possession of a suit property in 1990, which was later enforced through execution proceedings in 2004. The appellant, after the execution commenced, filed a suit for specific performance of an alleged oral agreement and sought an injunction to stay the eviction. The High Court set aside the injunction, holding that the appellant colluded with his wife to stall the decree and that the burden of proving the alleged agreement lay on the appellant, not the respondent. The appellant appealed, contending that Rule 104 of Order 21 of the CPC should stay the execution pending the outcome of his specific performance suit. The Supreme Court held that Rule 104 applies only when a suit is pending on the date of commencement of the execution proceedings; since the appellant’s suit was filed after execution began, the rule was inapplicable. The Court also affirmed that the burden of proving the alleged agreement could not be shifted to the respondent, in line with Section 103 of the Evidence Act, and dismissed the appeal.

Issues considered

The applicability of Order 21 Rule 104 of the Code of Civil Procedure, 1908 to stay execution proceedings when a suit for specific performance is filed after the execution has commenced.
Whether the burden of proving the alleged oral agreement should rest on the appellant under Section 103 of the Indian Evidence Act, 1872.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 101, s. Order 21 Rule 103, s. Order 21 Rule 104
Indian Evidence Act, 1872s. Section 103
Kerala Buildings (Lease and Rent Control) Act, 1965s. Section 11(2)(b), s. Section 11(3)

Subjects

Civil ProcedureExecution of DecreeRule 104Specific PerformanceInjunctionBurden of ProofEvidence ActRent Control

Judgment

[2008) 14 S.C.R. 389

~ VANIYANKANDY BHASKARAN A
v.
MOOLIYIL PADINHJAREKANDY SHEELA
(Civil Appeal No. 6103 of 2008)
OCTOBER 14, 2008
B
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ]
-rr
Code of Civil Procedure, 1908- 0 21, r 104- lnterpreta-
tion of - Held: Language of r. 104 is clear and unambiguous -
Order ulr 101 or r. 103 is to be subject to the result of pending c
suit on date of commencement of proceeding in which orders
were made ulr. 101 or r. 103 - On facts, suit by appellant for
specific performance of contract was filed long after the com-
mencement of execution proceedings - Thus, r. 104 not ap-
plicable.
D
In year 1990, the respondent No.1 filed suit for re-
\( covery of possession against the appellant and the same
was decreed. Appellant filed appeal. During the pendency,
respondent No.1 filed rent control petition against the wife
of the appellant. The petition was dismissed. Respondent E
No.1 filed appeal. The same was allowed and order for
eviction was passed. Appellant's wife filed a revision peti-
.tion which was dismissed. Appellan-t's wife was directed
to pay the arrears of rent within the stipulated time but
h '
she did not pay the same. In year 2004, the respondent F
No.1 filed execution proceedings seeking the appellant's
'" eviction and delivery of possession of the suit premises.
The Executing Court ordered delivery of possession of
the suit premises to the respondent. The appellant resisted
the delivery. Attempts were made to settle the matter and
G
the respondent agreed to withdraw the execution pro-
~
ceedings unconditionally but the same was never with-
drawn. In year 2005, the appellant filed suit for specific
performance and also suit for injunction to prevent the
389 H
390 SUPREME COURT REPORTS [2008] 14 S.C.R.

A eviction of the appellant in Execution Proceedings which ~
was allowed. Respondent challenged the same before the
High Court on the ground that the execution of the de-
cree which had been legally obtained could not be stalled
merely on account of a claim made by husband of judg-
B ment-debtor on basis of an unregistered agreement al-
leged to have.been executed on a stamp paper purchased
in her name. High Court held that the trial court had sim- ,..,._-
ply proceeded on the basis that the agreement was genu-
ine and had shifted the burden of proving the said agree-
c ment to be a manufactured document on the respondent;
that in order to prevent the respondent from obtaining
delivery of the possession of the suit premises in the ex-
ecution proceedings, the appellant had colluded with his
wife, the judgment-debtor, in instituting the suit for spe-
cific performance and to obtain an injunction to restrain
D
the respondent from enjoying the benefits of the decree
obtained by her, thus, the injunction granted by trial court )I
in favour of the appellant was highly irregular and is to be
set aside and the petition was dismissed. Hence the
present appeal. .;
.,
E
Dismissing the appeal, the Court.
HELD: 1-;1 The submissions made on behalf of the
appellant regarding the applicability of Rule 104 of Order
21 of the Code of Civil Procedure, 1908 has substance
F and merits consideration in an appropriate case, but they ,).'.
do not justify interference with the order of the High Court
in the facts of the case. The suit filed by the appellant for
specific performance of contract was considerably later
in point of time than the commencement of the execution
G proceedings and, in any event, the language of Rule 104
is clear and unambiguous that any order made under Rule -.,(
101 or Rule 103 would be subject to the result of a suit
pending on the date of commencement of the proceed-
ing in which orders were made under Rule 101 or 103.
H Since the appellant's suit was filed long after the com-
VANIYANKANDY BHASKARAN v. MOOLIYIL PADINHJ- 391
AREKANDY SHEELA [ALTAMAS KABIR, J.]

-----+ mencement of the execution proceedings, the provisions A
of Rule 104. of Order 21 of the Code will not apply to this
case. [Para 14] [396 8-D]
1.2 The views expressed by the High Court in rela-
tion to the provisions of Order 21 Rule 2 of the Code re-
garding adjustment of the decree in terms of an oral settle- B
ment alleged to have been arrived at between the parties
----,... on 21.2.2005 cannot be faulted. Furthermore, the view of

.. High Court that the burden of proving that the Agreement
relied upon by the appellants was manufactured had been
wrongly shifted upon the respondent No.1 in contraven- c
tion of Section 103 of the Evidence Act, 1872, is concurred
with. Therefore, there is no reason for disturbing the or-
der of the High Court impugned in this appeal on any of
the grounds urged on behalf of the appellant. [Paras 15,
16 and 17] [396 E-G] D

':{
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6103
of 2008
From the final Judgment and Order dated 6.12.2006 of
the High Court of Kerala at Ernakulam in FAQ No. 29 of 2006 E
M.K.S. Menon, Usha Nandni and Ranjith K.C. for the Ap-
pellant.
K.V. Vishwanathan, K. Rajeev and Harshad V. Hameed
,, for the Respondent. F
j
\ The Judgment of the Court was delivered by
ALTAMAS KABIR, J.1. Leave granted.
2. An interesting question regarding the interpretation of
Rule 104 of Order 21 of the Code of Civil Procedure in relation G
to Rule 101 thereof has been raised by Mr. M.K.S. Menon,
;..,. learned counsel for the appellant. In order to appreciate his sub-
missions, it is necessary to briefly set out the facts of the case
giving rise to such question.
H
.1..,r

392 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 3. The appellant, who was the original owner of the suit
property along with the building erected thereupon, allegedly
r
took a loan of Rs.50,000/- from the husband of the respondent
No.1 and under the guise of security for the loan the appellant
was made to execute a conveyance in respect of the suit prop-
B erty measuring 88 cents in favour of the respondent No.1 on ·1st
October, 1986. According to the appellant, on the same day his
wife was also made to sign on a blank paper, which was later ,,....-
on converted into a Rent Deed. It also appears that on account
of another loan taken by the appellant from the Syndicate Bank,
c OS No.176 of 1982 was instituted by the Bank against the ap-
pellant for recovery of the amounts due, before the Subordinate
Court, Thalasherry, in which the suit property was attached.
4. In 1990, OS 239 of 1990, filed by the respondent No.1
before the Subordinate Court, Tha!asherry, for recovery of the
D suit property on the strength of the conveyance executed in her
favour, was decreed. An appeal was preferred therefrom by the
appellant before the High Court, being AS No.609 of 1992, and x
during the pendency of the appeal, the respondent No.1 filed
RCP No. 292 of 1993 against the wife of the appellant under ·
E Sections 11 (2)(b) and 11 (3) of the Kera la Buildings (Lease and
Rent Control) Act, 1965, on the ground of default in payment of
rent for the suit building since August, 1989. An additional ground
was also taken by the respondent No. 1 claiming that the build-
ing was also required by her for her own use and occupation.
F 5. The said Rent Control Petition was dismissed by the
Rent Control Court on the ground that the title in relation to the
)--"
building was in dispute in OS No.239 of 1990. An appeal, be-
ing RCA No. 197 of 1994, filed by the respondent No.1 before
the Rent Control Appellate Authority from the order of the Rent
G Control Court, was allowed and eviction was ordered. The wife
-of the appellant thereupon filed a revision petition before the.
..........
High Court, being CRP No.2532 of 1996, which was dismissed
on 2"d April 2004, by a common judgment delivered in AS
No.609 of 1992 and CRP No. 2532 of 1996, whereby the title
H of the appellant in respect of the suit property was upheld and
VANIYANKANDY BHASKARAN v. MOOLIYIL PADINHJ- 393
AREKANDY SHEELA [ALTAMAS KABIR, J.]

4- the order passed in RCA No.197 of 1994 was confirmed. The A
· appellant's wife was given two months' time to pay the arrears of
rent, failing which the respondent was given leave to take steps
for execution of the order. Since the arrears were not paid within
the stipulated time, the respondent No.1 filed Execution Proceed-
ings No.407 of 2004 seeking the appellant's eviction and deliv- B
ery of possession of the suit premises. The appellant's wife en-
-,.. tered appearance before the Executing Court, which ordered
delivery of possession of the suit premises to the respondent on
2nd April, 2005. Since such delivery was resisted by the appel-
lant, the Court ordered delivery to be effected with Police help on c
18th July, 2005. Thereafter, attempts were made to settle the matter
and the respondent also agreed to withdraw the execution pro-
ceedings unconditionally. According to the appellant, although,
the respondent had agreed to withdraw the execution proceed-
ings, the same was never withdrawn, which compelled the ap-
0
pellant to file OS No. 181 of 2005 and also for an injunction to
';>( prevent the eviction of the appellant in Execution Proceedings
No.497 of 2004 in RCP No.292of1993. Inasmuch as, such prayer
for injunction was allowed by the learned Subordinate Judge, the
respondent challenged the same before the High Court.
E
6. On behalf of the respondent herein, who was the appel-
lant before the High Court, it was contended that when her title
to the scheduled property and the building had been upheld and
the eviction had also been ordered, such execution of the de-
cree legally obtained could not be stalled merely on the basis of F
' l
f\ a claim made by the husband of the judgment-debtor on the
basis of an unregistered agreement alleged to have been ex-
ecuted by the respondent on a stamp paper purchased in her
name. The High Court observed that the Trial Court had simply
proceeded on the basis that the agreement in question was G
genuine and had shifted the burden of proving the said agree-
'!-"' , ment to be a manufactured document on the respondent. The
High Court, therefore, took the view that in order to prevent the
respondent from obtaining delivery of the possession of the suit
premises in the. execution proceedings, the appellant had H
394 SUPREME COURT REPORTS [2008] 14 S.C.R.

A colluded with his wife, the judgment-debtor, in instituting the suit ~
for specific performance and to obtain an injunction therein to
restrain the respondent from enjoying the benefits of the de-
cree obtained by her. The High Court, therefore, came to the
conclusion that the injunction granted by the Trial Court in favour
B of the appellant herein was highly irregular and deserved to be
set aside. The injunction petition filed by the appellant in OS
No.181 of 2005, in the Court of Subordinate Judge, Thalasherry,
~
was therefore, dismissed.
7. It is in the aforesaid background that Mr. Menon urged
c that the provisions of Rule 104 of Order 21 of the Code of Civil
Procedure were required to be considered.
8. Since we shall be considering the effect of the afore-
said Rule, the same is set out hereinbelow:-
D "Order XX!. Rule 104.- Order under Rule 101 or Rule 103
to be subject to the result of pending suit. - Every order
made in Rule 101 or Rule 103 shall be subject to the result ·x
of any suit that may be pending on the date of commencement
of the proceeding in which such order is made, if in such suit
E the party against whom the order under Rule 101 or Rule 103
is made has sought to establish a right which he claims to the
present possession of the property."
9. Mr.. Menon submitted that the said provision was not
there in the Code of Civil Procedure in its original form and was ,.,
F included by amendment with effect from 1st February, 1997 to- )-·'
gether with ~ules 98_ to 103, 105 and 106 of Order XXI.
10. Mr. Menon submitted that in order to curtail the delay
in executing the decree for possession of immovable property,
the amended Rules were brought on the Statute book t~ enable
G
the Executing Court itself to decide claims of title which might
....
be raised in execution proceedings without filing of a separate ~
suit for the said purpose.
11. Mr. Menon submitted that the amended provisions of
H Order 21 of the Code provided for a scheme by which any ob-
VANIYANKANDY BHASKARAN v. MOOUYIL PADINHJ- 395
AREKANDY SHEELA [ALTAMAS KABIR, J.]

struction to the execution of a decree giving rise to questions A
~ relating to right, title or interest in the suit property, arising be-
tween the parties to a proceeding, on an application under Rule
97 or Rule 99 or their representative and relevant to the adjudica-
tion of the application, is to be determined by the Court dealing
with the application and not by a separate suit. The said provi- 8
sion contained in Rule 101 has been referred to in Rule 104 which
indicates that any order made under Rule 101 or Rule 103 would
~
I be subject to the result of any suit that may be pending on the
date of commencement of the proceeding in which such order is
made. According to Mr. Menon, although the execution proceed- c
ingswere commenced on 3rct November, 2004, and the suit for
specific performance was filed by the appellant on 27th August,
2005, the actual order was passed on the application under Rule
97 by the Executing Court on 19th December, 2005, after the suit
had been filed by the appellant. In other words, according to Mr.
D
Menon, the suit filed by the appellant was pending on the date
when the order under Rule 97 and Rule 98 was made and would,
·-x therefore, be subject to the provisions of Rule 104 and would
have to await the outcome of the suit for specific performance
filed by the appellant. Mr. Menon urged that the High Court had
erred in relying on the provisions of Rule 2 of Order 21 of the E
Code in setting aside the order of injunction passed by the learned
Subordinate Judge on the application for injunction filed by the
appellant in OS No.181of2005.

12. Appearing for the respondent, Mr. Vishwanathan, on F
the other hand, submitted that the submission regarding the
i." applicability of Rule 104 of Order 21 of the Code of Civil Proce-
dure to the facts of this case was wholly misconceived since
the execution proceedings had been commenced long before
the appellant's suit for specific performance was filed. While
G
the respondent's suit for recovery of possession was decreed
in 1990, the execution proceedings for executing the decree
~-·
was commenced on 3rd November, 2004, and the appellant filed
his suit for specific performance about ten months later on 27th
August, 2005.
H
l

--,
396 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 13. Mr. Viswanathan submitted that since the eviction pro- ~
ceedings against the appellant's wife had reached its final
stages, the appellant raised a new claim based on an unregis-
tered document to stall the execution of the decree for posses-
sion made as far back as in 1990.
B 14. The submissions made on behalf of the appellant re-
garding the applicability of Rule 104 of Order 21 of the Code has
substance and merits consideration in an appropriate case, but ~
they do not justify interference with the order of the High Court in
the facts of this case. The suit filed by the appellant for specific
c performance of contract was considerably later in point of time
than the commencement of the execution proceedings and, in
any event, the language of Rule 104 is clear and unambiguous
that any order made under Rule 101 or Rule 103 would be sub-
ject to the result of a suit pending on the date of commencement
D of the proceeding in which orders were made under Rule 101 or
103. Since the appellant's suit was filed long after the commence-
ment of the execution proceedings, the provisions of Rule 104 of )(
Order 21 of the Code will not apply to this case.
15. We cannot also find any fault with the views expressed
E by the High Court in relation to the provisions of Order 21 Rule
2 of the Code regarding adjustment of the decree in terms of an
oral settlement alleged to have been arrived at between the
parties on 21.2.2005.

F 16. Furthermore, we also agree with the High Court that
the burden of proving that the Agreement relied upon by the
appellants was manufactured had been wrongly shifted upon
·r
the respondent No.1 in contravention of Section 103 of the In-
dian Evidence Act, 1872.
G 17. We, therefore, find no reason for disturbing the order
of the High Court impugned in this appeal on any of the grounds
urged on behalf of the appellant. The appeal, therefore, fails ~

and is dismissed, with cost accessed at Rs.10,000/-.

N.J. Appeal dismissed.
H
'