IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 7.1.2011. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.M.S.A.No.25 of 2010 and M.P.No.1 of 2010 1. Munusamy 2. Kumaresan 3. Subramanian 4. Nagarattinam 5. Sarasu Appellants/Obstructors 2 to 6 vs. 1. Vengadachalam 2. Porkalai 3. Ambujam 4. Thilagavathy 5. Saravanan @ Lamber Saravanan 6. Vijaya 7. Ambiga 8. Poongodai 9. Eswari 10. Vembu 11. Damodaran Respondents/Decree Holder & Judgment Debtors & Obstructor No.7. Civil Miscellaneous Second Appeal against the judgment and decree of the Principal Sub Judge, Pondicherry dated 25.10.2010 in A.S.No.34 of 2008 confirming the judgment and decree dated 17.11.2008 in E.A.No.240 of 2001 in E.P.No.185 of 2000 in O.S.No.460 of 1982 on the file of the II Additional District Munsif, Pondicherry. For appellants : Mr.V.Raghavachari For R1 : Mr.K.Surendranath ORDER Respondents 2 to 6 in E.A.No.240 of 2001 in E.P.No.185 of 2000 in O.S.No.460 of 1982 on the file of the III Additional District Munsif, Puducherry are the appellants in this civil miscellaneous second appeal. 2. The suit in O.S.No.460 of 1982 was filed by the first respondent herein against one Gundu Govindasamy for declaration of https://hcservices.ecourts.gov.in/hcservices/ his title and possession of three pieces of immovable property and the suit was decreed. As per the decree, the defendant viz., Gundu Govindasamy was directed to hand over vacant possession of the encroached portion, marked as 'A' 'B' and 'C' in Ex.C2 the surveyor's sketch, to the plaintiff. The said judgment debtor filed appeal in A.S.No.104 of 1988 challenging the judgment and decree before the Principal District Judge, Pondicherry and that appeal was dismissed and in Second Appeal No.1389 of 1989 filed by the judgment debtor before this court, this court also confirmed the finding of the Trial Court and the lower appellate court and dismissed the appeal. Thereafter, the first respondent herein filed E.P.No.185 of 2000 to execute the decree and in respect of B and C schedule properties are concerned, there was no dispute and he was able to get possession of the property and in respect of A portion of the suit property, the appellants raised objections to the execution and therefore, the decree holder, the first respondent herein filed E.A.No.240 of 2001 under Order 21 Rule 97 for removal of obstruction and that petition was allowed by the II Additional District Munsif, Pondicherry and as against the same, the appellants filed appeal in A.S.No.34 of 2008 and the lower appellate court also confirmed the finding of the Trial Court and dismissed the appeal. As against the same, the present civil miscellaneous second appeal is filed. 3. The following substantial questions of law are raised by the appellant in this appeal:- "a) Whether the courts below are justified in directing removal of obstruction even in the absence of proof of title with the first respondent? b) Whether the courts below have not overlooked the statutory mandate under Order 21 Rule 99, 101 of the Code of Civil Procedure and whether its order in not adverting to title is incomplete? c) Whether the courts below have not shifted the burden of proof on the appellants when it is the obligation of the first respondent to establish title? d) In the absence of filing any documents at the instance of the first respondent are the courts below justified in directing removal of obstruction?" 4. Mr.V.Raghavachari, learned counsel for the appellants submitted that the courts below without appreciating the scope of Order XXI Rule 97 and without appreciating the fact that the appellants are claiming to be in possession of the A schedule property on their own right and not claiming any right through the judgment debtor or his legal heirs and without appreciating the decree obtained by the first respondent is a nullity and cannot be enforced, dismissed the claim of the appellants and therefore, the https://hcservices.ecourts.gov.in/hcservices/ orders of the court below are liable to be set aside. It is submitted by the learned counsel Mr.V.Raghavachari that the case of the first respondent/decree holder was that the suit property is situate in Cadaster No.492 and is correlated to new field No.152/5 and Cadaster No.492 BIS is correlated to new field No.152/4 and even as per the Commissioner's plan, Exs.C1 and C2, 'A' portion marked in the said plan comes within Cadaster 492 BIS equivalent to new field No.152/4 and the decree holder did not claim any right over Cadaster 492 BIS and he claims right only in respect of Cadaster 492 which is new field No.152/5 and therefore, by practising fraud on the court below, he obtained a decree in respect of A portion of the property and hence, the decree obtained by the decree holder/first respondent is a nullity and the appellants, being third parties to the proceedings, are entitled to question the same. In other words, the learned counsel Mr.V.Raghavachari submitted that the first respondent/decree holder has no right or title over A schedule item of property and without appreciating the fact that A item falls within 492 BIS equivalent to new field No.152/4, all the courts granted decree in favour of the decree holder and under Order XXI Rule 97 of the Code of Civil Procedure, all right and title to the suit property can be decided and the appellants are challenging the right and title of the decree holder to A portion of the property and therefore, the title of the decree holder in respect of A portion has to be decided and without deciding the same, the court below allowed the application filed by the decree holder and dismissed the appeal filed by the appellants. He further submitted that the surveyor's sketch which was marked as Ex.C2 before the court below would also make it clear that A portion falls within Cadaster 492 BIS and admittedly, the decree holder never claimed any right over Cadaster 492 BIS equivalent to new field No.152/4 and therefore, in the absence of any title to the said portion, the decree holder is not entitled to execute the decree against the appellants and the appellants, being third party, they are entitled to challenge the title of the decree holder. 5. The learned counsel for the appellants further submitted that under Order XXI Rule 97, when some persons are obstructing the execution of decree and those persons are not claiming any right through the judgment debtor or through his transferees or legal representatives, the court ought to have decided the right and in this case, the appellants have produced Exs.R1 to R45 to prove their possession in respect of some portion of A item of the property and they are not claiming any right through the judgment debtor and the courts below, without appreciating the same, simply rejected the contention of the appellants on the ground that they are the close relatives of the judgment debtor and therefore, they cannot claim any individual right over A portion of the property. The learned counsel for the appellants also relied upon the following judgments of the Honourable Supreme Court:- 1) BRAHMDEO CHAUDHARY v. RISHIKESH PRASAD JAISWAL ((1997) 3 SCC 694 = https://hcservices.ecourts.gov.in/hcservices/ AIR 1997 SC 856) 2) SHREENATH v. RAJESH (1998-2- LW 418 = AIR 1998 SC 1827) 6. On the other hand, learned counsel for the first respondent/decree holder submitted that the decree holder obtained decree in the year 1988 and the same was confirmed in the year 2000 and for the past 22 years, the decree holder is not able to enjoy the fruits of the decree and this court in Second Appeal confirmed the decree passed by the Trial Court holding that the decree holder is entitled to 'A' 'B' and 'C' portion marked in the Commissioner's plan as stated in the decree and this application is a clear abuse of process of court. In support of his contention, he relied upon the following judgments:- 1) HOTEL S.S.PANDIAN PVT. LTD. v. THE CHIEF JUDGE, COURT OF SMALL CAUSES, ETC.(2003-1-LW 475) 2) DALIP SINGH v. STATE OF UTTAR PRADESH AND OTHERS ((2010) 2 SCC 114) 7. A reading of the substantial questions of law would make it clear that the appellants are challenging the decree on the sole ground that the decree holder has no title to A portion of the suit property and therefore, he is not entitled to execute the decree in respect of A portion and in their application under Order XXI Rule 97 of the Code of Civil Procedure, the court ought to have decided the title of the plaintiff/decree holder to the suit property when the same is questioned by the third party obstructors and without proving his title, the decree holder is not entitled to execute the decree. 8. Mr.Raghavachari, learned counsel for the appellants brought to my notice the new surveyor's plan which was also marked before the court below and contended that the specific case of the decree holder, the plaintiff was only in respect of Cadaster 492 and he never claimed any right in respect of Cadaster 492 BIS which is equivalent to new field No.152/4 and it is seen from the Surveyor's sketch, A portion lies within Cadaster 492 BIS equivalent to new field No.152/4 and therefore, the decree holder cannot claim title over the same and by practising fraud, he has obtained decree in respect of A portion and therefore, it cannot be executed. He further submitted that being a third party to the decree, the obstructors are entitled to question the title of the decree holder to the suit property and that title has to be determined in the proceedings under Order XXI Rule 97 of the Code of Civil Procedure and without deciding the same, the court should not have proceeded further. 9. To appreciate the contention of the learned counsel for the appellants, we have to see the provisions under Order XX1 Rule 97 of the Code of Civil Procedure. Order XXI Rule 97 and 101 reads as follows:- "97. Resistance or obstruction to possession of immovable property https://hcservices.ecourts.gov.in/hcservices/ (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. .... ..... 101. Questions to be determined All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." 10. Therefore, a reading of Order XXI Rules 97 and 101 will make it clear that when a decree is sought to be executed by the decree holder if any person obstructs to the execution of the decree in obtaining possession of the property, the decree holder may make an application to the court complaining of such resistance or obstruction and as per Order XXI Rule 97(2), when such application is made, the court shall proceed to adjudicate the application and as per Order XXI Rule 101 of the Code of Civil Procedure, all the questions including the question relating to right, title or interest in the property arising between the parties to the proceedings shall be determined by the court dealing with the application and not by a separate suit. 11. The provisions of Order 21 Rule 97 to 99 and 101 were interpreted by the Honourable Supreme Court in BRAHMDEO CHAUDHARY v. RISHIKESH PRASAD JAISWAL ((1997) 3 SCC 694 = AIR 1997 SC 856). The Honourable Supreme Court while interpreting Order XXI Rule 97 to 99 and 101, held as follows:- "8. A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following picture: (1) If a decree-holder is resisted or obstructed in execution of the decree for https://hcservices.ecourts.gov.in/hcservices/ possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21 Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. ..... .... 9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree- holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21 Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing Court it is difficult to appreciate how the executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99, CPC and pray for restoration of possession. The High Court by the https://hcservices.ecourts.gov.in/hcservices/ impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree- holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance https://hcservices.ecourts.gov.in/hcservices/ right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree- holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 and 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves." 12. Again in the judgment in SILVERLINE FORUM PVT.LTD. v. RAJIV TRUST (AIR 1998 SC 1754), it has been held as follows:- " When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.(Italics supplied) The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should https://hcservices.ecourts.gov.in/hcservices/ have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97 (2) of the Code, the execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section." (Italics supplied) 13. In the judgment in SHREENATH v. RAJESH (1998-2- LW 418 = AIR 1998 SC 1827), it has been held as follows:- "13. So far sub-clause (1) of Rule 97 the provision is same but after 1976 amendment all disputes relating to the property made under Rules 97 and 99 is to be adjudicated under Rule 101, while under unamended provision under sub- clause (2) of Rule 97, the Executing Court issues summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree-holder application. Thus even prior to 1976 right of any person claiming right on his own or as a tenant, not party to the suit such person's right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property, on his own, if resists delivery of possession to the decree-holder the dispute and his claim has to be decided after 1976 amendment under Rule 97 read with Rule 101 and prior to the https://hcservices.ecourts.gov.in/hcservices/ amendment under Rule 97 read with Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he has to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as all disputes are to be settled by the Executing Court itself finally under Rule 101. 14. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executing Court itself." 14. In the judgment in N.S.S.NARAYANA SARMA v. M/s.GOLDSTONE EXPORTS (P) LTD. (AIR 2002 SC 251), the Honourable Supreme Court upheld the judgment reported in AIR 1998 SC 1754 and also followed the judgment in ANWARBUII v. PRAMOD D.A. JOSHI & OTHERS (2000 (10) SCC 405) and held that "the obstructionist in possession can only be dispossessed in accordance with law – person in possession of immovable property claiming legal entitlement thereto and obstructing execution of decree for possession may not be dispossessed till his rights are adjudicated in appropriate proceedings. The decree-holder cannot take possession unless such proceedings terminate in his favour." 15. In the judgment in ASHAN DEVI v. PHULWASI DEVI (AIR 2004 SC 511), the judgment rendered in SHREENATH v. RAJESH (1998-2- LW 418 = AIR 1998 SC 1827) and the judgment in SILVERLINE FORUM PVT.LTD. v. RAJIV TRUST (AIR 1998 SC 1754) were followed and it has been held as follows:- "In interpreting the provisions of O.XXI, R.97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in O.XXI to enable