Supreme Court: In batch of appeals against the judgment and order passed by the Madras High Court, wherein the Court rejected the revision petitions and affirmed the orders passed by the Additional Subordinate Judge, (‘ASJ’) allowing the application filed by the respondent 1 and 2 under Section 47 of the Code of Civil Procedure, CPC, 1908 and rejecting the application filed by the appellants seeking amendment in the execution petition, the division bench of JB Pardiwala* and Pankaj Mithal, JJ. while setting aside the impugned judgment of the High Court and the orders passed by the Executing Court , directed the Executing Court to proceed to ensure that vacant and peaceful possession of the suit property is handed over to the appellants in their capacity as decree holders and if necessary, with the aid of police within a period of two months from the date of this judgment.
Further, directed the High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions, and to proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the presiding officer concerned would be answerable to the High Court on its administrative side.
Background
In 1980, the father of the appellants entered into an agreement of sale with the vendors for the purchase of a property suit property for Rs. 67,000/-. After paying an earnest amount of Rs. 10,000, the balance amount was to be paid by 15-11-1980, upon which the vendors were to execute the sale deed. However, despite repeated requests and a specified date for execution, the vendors failed to honor the agreement. Consequently, the father filed a suit seeking specific performance and delivery of possession of the suit property.
To avoid any obstruction in the delivery of possession, the father impleaded respondents 1 and 2 in the suit. However, the respondents chose not to contest the suit, allowing it to proceed ex parte against them. On 02-04-1986, the Trial Court decreed the suit in favor of the father, a judgment which was subsequently upheld by the High Court and later by the Supreme Court, dismissing all appeals by the vendors. Despite the finality of the decree, the execution proceedings were delayed for decades due to procedural hurdles and resistance from third parties, namely respondents 1 and 2, who obstructed the delivery of possession of the suit property.
The Executing Court held that although respondents. 1 and 2 herein were impleaded as parties in the execution petition filed by the appellants yet no notice was sent to them as there was no prayer made against them. Secondly, according to the Executing Court respondents. 1 and 2 have been able to establish that they are in possession of the suit properties. In such circumstances, the objections raised by the respondents. 1 and 2 under Section 47 of the CPC were upheld.
The High Court vide the impugned order held that the ASJ’s order allowing the respondents’ execution application under Section 47 was correct on the aspect of serving of notice. The appellants were aware of the fact that respondents 1 and 2 were in possession of the suit’s property yet they did not ask the court to serve notice to them. Since no notice was provided to the respondents, the court could not have passed a direction for delivery of possession. Further, the appellants did not take any steps to amend the execution petition till the disposal of the respondents’ execution application under Section 47 CPC. Once the said application was allowed, there remained no execution proceedings pending so far as the respondents. The appellants did not prefer any appeal against the order of the ASJ allowing the application under Section 47 of the CPC, till 2015 and no reasons were assigned by the appellants for such delay.
Issues
(i) Whether the courts below committed any error in upholding the objections raised by the respondents 1 and 2 against execution of the decree on the claim of being in possession of the suit property in their capacity as cultivating tenants?
(ii) Whether the respondents 1 and 2 are entitled to the protection of the Tamil Nadu Cultivating Tenants’ Protection Act, 1955 and could the Executing Court have decided the question of validity of the decree on this ground?
Analysis and Decision
The Court took note of Section 47, Order XXI of CPC, and reiterated that an application under Order XXI Rule 97 may be made in respect of obstruction raised by any person in obtaining possession of the decretal property. The courts adjudicating such application have to do so in accordance with Rule 101 and hold a full-fledged inquiry to determine all questions including questions relating to right, title or interest in the property arising between the parties.
The Court referred to Shreenath v. Rajesh (1998) 4 SCC 543 and various other cases wherein the questioning whether the tenants could maintain an application under Order XXI Rule 97, the Court while interpreting the words ‘any person’, held that any person includes even persons not bound by the decree.
After a conjoint reading of the relevant provisions and the principles laid down by this Court the Court concluded that in execution of decree for possession of immovable property, the executing court delivers actual physical possession of the decretal land to the decree holder. Rule 35 confers jurisdiction on the executing Court to remove any person who is bound by the decree and who refuses to vacate the property. The words “any person who is bound by the decree” clearly mandate that removal can only be of a person who is bound by the decree. Rules 97 to 101 deal with situations when execution is obstructed or resisted by “any person” claiming right, title or interest in the property. The words “any person” include even a stranger to a decree resisting the decree of possession as not being bound by a decree or by claiming independent right, title or interest to the property.
Thus, the Court emphasized that Rule 97 not only provides a remedy to a decree holder in obtaining possession of immovable property but also extends to a stranger who obstructs or resists the delivery of possession by claiming a derivative title from the judgment debtor or an independent right, title, or interest in the decretal property. On the other hand, Rule 99 grants the right to a third party claiming any right, title, or interest in the property to seek restoration of the decretal property. The remedy under Rule 99 is available when a person claiming the right to the decretal property has already been dispossessed.
After noting some part of the reasonings of the Executing Court as well as the High Court stated that the Courts below proceeded on an entirely incorrect premise. What the lower courts should have considered was a fundamental aspect—whether the obstruction caused by Respondents 1 and 2 in the execution of the decree for specific performance and possession of the suit property could be regarded as bona fide and genuine.
The Court highlighted that after a harmonious reading of Section 47 with Order XXI Rule 101 it implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can be determined by an executing court under Section 47 and Order XXI Rule 101. Hence, the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself.
The Court noted that in the present case, the appellants had pleaded in their plaint that respondents were impleaded as defendants because they were in possession of the suit property. However, despite being aware of the appellant’s prayer for the delivery of possession of the suit properties, respondents 1 and 2 chose not to contest the suit. The Court observed that they had the opportunity to file a joint written statement during the original suit proceedings, where they could have raised their claim of being cultivating tenants. Instead, they raised the issue as objections only at the stage of execution, which the Court found to be an inappropriate approach.
The Court further noted that despite the affirmation of the decree of specific performance and the transfer of title to the appellants in 2007, respondents 1 and 2’s claim to remain in possession of the property under the Tamil Nadu Cultivating Tenants’ Protection Act, 1955, lacked a solid legal foundation. The Court found it puzzling that the Revenue authorities issued a notice to the vendors in 2008, after the execution of the sale deed, and that the vendors, despite having no legal authority following the sale deed, issued a “no objection” for the grant of a certificate of possession to respondents 1 and 2. This, according to the Court, undermined the legitimacy of the respondents’ claim to be cultivating tenants with retrospective effect from 1974.
The Court viewed that the actions described above, by no stretch of imagination, could be construed as a legal right of possession existing independently from the title of the vendors, which has now been transferred to the appellants. The Court opined that this situation appeared to be a clear case of apparent collusion between the vendors and respondents 1 and 2, aimed at depriving the appellants of the benefits and fruits of the decree in their favor.
The Court further noted that, even otherwise, respondents 1 and 2 cannot claim protection under the special legislation of 1955 for the period during which they were not registered as tenants cultivating the suit properties. The Court emphasized that the certificate stating that they have been in possession of the suit properties since 1974 does not assist them. This is because the certificate does not establish any independent right of possession in favor of respondents 1 and 2. Additionally, the Court pointed out that the certificate itself appears to have been obtained in collusion with the vendors, who had already ceased to be the owners of the suit property at the time they issued the “no objection.”
Given these circumstances, the Court found it extremely difficult to accept that respondents 1 and 2 were bona fide cultivating tenants of the suit property. Consequently, the determination of their possession was ruled in favor of the appellants. The Court further clarified that there was no need to decide the validity of the decree on the ground of it being a nullity due to the alleged lack of jurisdiction of the civil court to evict cultivating tenants.
In light of these observations, the Court concluded that the High Court had committed a significant error in passing the impugned order. The Court also determined that the rejection by the High Court of the amendments to the execution petition filed by the appellants was erroneous and should be set aside, ensuring that the appellants are able to reap the fruits of the decree.
Noting long and inordinate delay at the end of the Executing Courts across the country in deciding execution petitions, the Court after referring to Rahul S. Shah v. Jinendra Kumar Gandhi (2021) 6 SCC 418 , wherein it was held that the execution proceedings to be completed within six months from the date of filing, directed the High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions.
Once the data is collected , the High Court were directed to proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the presiding officer concerned would be answerable to the High Court on its administrative side. Once the entire data along with the figures of pendency and disposal, thereafter, is collected by all the High Courts, the same were directed to be forwarded to the Registry of this Court with individual reports.
CASE DETAILS
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Citation: Appellants : Respondents : |
Advocates who appeared in this case For Petitioner(s): For Respondent(s): |
CORAM :
