JINI DHANRAJGIR & ANR versus SHIBU MATHEW & ANR. ETC.
[2023] 5 S.C.R. 551, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Ratio
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[2023] 5 S.C.R. 551
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JINI DHANRAJGIR & ANR.
v.
SHIBU MATHEW & ANR. ETC.
(Civil Appeal Nos. 3758 – 3796 of 2023)
MAY 16, 2023
[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
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
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
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
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
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
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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
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
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
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
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
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
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
97 to 106 of Order XXI CPC under the sub-heading “Resistance
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to delivery of possession to decree-holder or purchaser” have been
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,
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]
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
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.
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
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
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
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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
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
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
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
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]
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
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
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power to grant leave under Article 136 itself being discretionary,
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
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
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-
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
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
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
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
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: [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)
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)
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
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)
[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)
[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
[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
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3758-
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,
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.
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.
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.
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
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
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
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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,
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 Calcutta3, this Court held that
a court has no power to ignore that provision to relieve what it considers
a distress resulting from its operation.
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
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
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
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
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 AIR 1966 SC 529
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Mathew [defendant no.1], his sons [defendant no. 2, Mr.
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
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
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
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
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
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.
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.
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
[DIPANKAR DATTA, J.]
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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.
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 11th
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.
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
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
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
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
on 21st October 2000.
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9. The following subsequent events are of further importance to
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
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.
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
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
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,
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.
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
[DIPANKAR DATTA, J.]
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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.
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
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,
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
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
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:
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.
4 (2008) 7 SCC 144
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b.
Board of Trustees vs. Nikhil Gupta5, where this Court
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
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,
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 Ors7,
where this Court held that non-compliance of the orders of
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
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
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
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
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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
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
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
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
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
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
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
11 (2002) 5 SCC 510
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h.
The Appellants’ conduct in directly approaching this Court
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
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.
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
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
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
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
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
[DIPANKAR DATTA, J.]
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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
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
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
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
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
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.
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 (1996) 3 SCC 154
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22. Considering the scheme of Order XXI Rules 97 to 106, this
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
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
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.
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
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
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
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
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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
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
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
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
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
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
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
than effectuating, the substantive right that Rules 97 to 103 of Order
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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 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 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
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.
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
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
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,
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
JINI DHANRAJGIR & ANR. v. SHIBU MATHEW & ANR. ETC.
[DIPANKAR DATTA, J.]
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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
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.
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.
Nidhi Jain
Appeals and contempt petition dismissed.
(Assisted by : Tamana, LCRA)