SHAMSHER SINGH & ANR. versus LT. COL. NAHAR SINGH (D) THR. LRS. & ORS.
[2019] 9 S.C.R. 1155, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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     SHAMSHER SINGH & ANR.
v.
LT. COL. NAHAR SINGH (D) THR. LRS. & ORS.
      (Civil Appeal No. 5632 of 2019)
JULY 29, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Code of Civil Procedure, 1908:
Or. XXI,  r. 101 – Scope of – Pursuant to a court decree
possession of the property in question given to the decree-holders,
after dispossessing the respondent – Respondent filed application
before Executing Court complaining of his dispossession, claiming
to be in adverse possession of the property – Executing Court
rejected the application, holding that the respondent-applicant failed
to prove his title on the property – In First Appeal, High Court set
aside the order of Executing Court and directed to put back the
respondent into possession of the property – Appeal to Supreme
Court – Held: After the 1976 amendment in rule 101 of Order XXI,
an applicant is required to prove not only his bonafide possession,
but also his right, title and interest in the property, to be put back in
possession – Therefore, there was no error in the order of
Executing Court – High Court committed error in allowing the
appeal.
Allowing the appeal, the Court
HELD: 1. The scope and ambit of Rule 101 of Order XXI
of CPC prior to amendment of CPC was entirely different as
compared to Rule 101 as was brought into statute after 1976
amendment. Earlier a person who was a bona fide claimant and
who satisfied that he was in possession of the property on his
own account or on account of some
other person then the
judgment-debtor could have been put in possession of the
property on an application under Rules 100 and 101, whereas
now after the amendment for putting back into possession an
applicant has not only to prove that he is in bona fide possession,
rather he has to prove his right, title or interest in the property.
What was earlier to be adjudicated in a suit under unamended
[2019]  9 S.C.R. 1155
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[2019] 9 S.C.R.
Rule 103 is now to be adjudicated in Rule 101 itself, thus, for
being put in possession, an applicant has to prove his right, title
or interest in the property and by simply proving that he was in
possession prior to the date he was dispossessed by
decree-holder, he is not entitled to be put back in possession.
Thus, In view of the statutory scheme which is delineated by
amended provisions of Rule 101, it cannot be said that by simply
proving the fact that the respondent was in possession prior to
he being dispossessed by decree-holder, he should be put back
in   possession. The respondent-applicant had to prove his right,
title or interest in the property to be put back in possession.
[Paras 14, 16 and 17] [1164-A-B, G; 1165-A-B]
2. All issues between the parties in application under
Order XXI Rules 99, 100 and 101 need to be examined by
Executing court and decided. The use of the words “all ques-
tions (including the 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 …………” has to be given
meaning and full play. Prior to Amendment, 1976, under Rule
103, the aggrieved party could have brought a suit for
determination of rights between them but by Amendment, 1976,
Rule 103 has been amended. The purpose of amendment under
Rule 103 is also that any adjudication made under Rule 101 shall
have same force and be subject to
the same conditions as to an
appeal or otherwise as if it was a decree.  Rule 101, thus, affords
an opportunity to get all issues relating to right, title or interest
in the property to be determined.  When respondent No.1 filed
his application claiming to be put back into possession, it was
obliged to establish its right, title or interest in the property
without which his application could not have been allowed.  The
Executing Court has considered the application of respondent
No.1 in right perspective and has clearly held that respondent
No.1 failed to prove his title by adverse possession, hence
application deserves to be rejected. [Paras 25, 26 and 27]
[1173-C-H]
3. High Court committed error in observing that in
application proceedings under Order XXI Rules 99, 100 and 101,
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the Court is not to decide such question. The High Court, was
not correct in holding that the title in respect of the property by
way of adverse possession need not be gone into in the appeal
before it.  In the proceeding under Order XXI Rules 99, 100 and
101, right, title or interest has to be determined and without
establishing right, title or interest, the respondent No.1 cannot
claim that he should be put back into possession. [Paras 28, 29]
[1174-A-C]
4. The suit filed by respondent No.1 seeking declaration of
title to the property by adverse possession has been subsequently
dismissed by decree on 16.03.2009 and no steps have been taken
for restoration of the suit. Therefore, there is no error in the
order passed by the Executing Court. The High Court
committed error in allowing the appeal, directing respondent No.1
to be put back into possession. [Para 28] [1174-C]
 Shreenath and Another v. Rajesh and Others (1998) 4
SCC 543: [1998] 2 SCR 709; Silverline Forum Pvt.
Ltd. v.. Rajiv Trust and Another (1998) 3 SCC 723 :
[1998] 2 SCR 587; Ghasi Ram and Others v. Chait Ram
Saini and Others (1998)  SCC 200 : [1998]  3 SCR
863 ; Ashan Devi and Another v. Phulwasi Devi  and
Others (2003) 12 SCC 219 : [2003] 5 Suppl. SCR 820
– relied on.
Case  Law Reference
[1998] 2 SCR 709
     relied on
       Para 21
[1998] 2 SCR 587
     relied on
       Para 23
[1998] 3 SCR 863
     relied on
       Para 24
[2003] 5 Suppl. SCR 820   relied on
       Para 24
 CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 5632
of 2019
From the Judgment and Order dated 15.12.2009 of the High Court
at Calcutta in FMA No. 720 of 2005
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS.
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Debal Banerji, Sr. Adv., Joydeep Mazumdar, Rohit Dutta,
Ms. Priyata Chakraborty,  Dipak Kumar Jena, Advs. for the Appellants.
Amol Chitale, Ankur S. Kulkarni, Shatadru Chakraborty, M/s. Lex
Regis Law Offices,  Advs. for the Respondents.
 The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against the Division Bench Judgment
of Calcutta High Court in FMA No.720 of 2005, by which the appeal
filed by the respondent No.1  has been allowed setting aside the order of
Executing Court dated 10.08.2004 rejecting the application filed by
respondent No.1 under Order XXI Rules 98, 99 and 100 of the Code of
Civil Procedure (hereinafter referred to as “CPC”).
2. Brief facts of the case giving rise to this appeal are:-
2.1 One Tarapada Dutta owned premises No.15, Sahanagar Road,
P.S. Tollygunge, Calcutta.  An agreement for sale was
executed by Anadi Dutt, who claimed to be son of Tarapada
Dutta in favour of Rajvindar Singh in respect of 4 Kh. 4 Ch.
and 00 sft. of land and structures at premises No.15.
Another agreement for sale was entered by Anadi Dutt with
Shamsher Singh in respect of 4 Kh. 6 Ch. and 6 Sft. of land
and structures of premises No.15.
2.2 The respondent had filed a T.S. No.211 of 1990 before the 3rd
Munsif at Alipore praying for decree of declaration of his
right with regard to premises in question on the basis of
adverse possession.
2.3 Anadi Dutt having not executed the sale
deed in pursuance of
agreement for sale dated 07.05.1990, two title suits being
Suit No.50 of 1994 and 51 of 1994 were filed by Rajvindar
Singh and Shamsher Singh, which were decreed ex-parte on
20.12.1994.  In pursuance of decree of the Court, two
separate Deeds of Conveyance were executed in favour of
Dayal Singh (Nominee of Rajvindar Singh) and in favour of
Shamsher Singh.  Decree holders filed two execution cases
vide Execution no. T.Ex. No.09 of 1995 and T.Ex. No.10 of
1995 seeking delivery of possession of the suit property.  First
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Time Court Bailiff could not succeed in delivering
possession, however, subsequently the Court Bailiff with the
help of police delivered Khas vacant possession of the suit
premises to the Decree Holder on 12.04.1996.
2.4 After lapse of 30 days, respondent No.1 filed two Misc. cases
Nos. 10 of 1996 and 11 of 1996 against Rajvindar Singh,
Shamsher Singh, Dayal Singh and Asis Dutt under Order XXI
Rules 98, 99 and 100 CPC before the 6th Assistant District
Judge, Alipore.  In the said two Misc. cases, respondent No.1
claimed that his father Sardar Iqbal Singh was the occupier
and was running his business under the name and style as
Public Transport Business in the suit premises and after his
death, respondent No.1 has been running a business under
the name and style of Ex-Service United Coal Enterprise (P)
Ltd.  In the above said Misc. Case No.10 of 1996, the
respondent No.1 claimed that Anadi Dutt was not the son of
Tarapada and it was Asis Kumar Dutt, who was the only
son, owner and only legal heir of Late Tarapada.  It was also
claimed that a T.S. No.211 of 1990 was pending before 3rd
Munsiff at Alipore filed by respondent No.1, in which he
claimed right and title of the suit premises on the basis of
adverse possession. It was further claimed that Shamsher
Singh, Rajvindar Singh and Dayal Singh had fraudulently
obtained decree in collusion with Anadi Dutt and has evicted
the respondent No.1 from the suit property.
2.5 In Misc. proceeding application,
although, the respondent No.1
has impleaded Asis Kumar Dutt but he neither contested the
Misc. application nor challenged the title of Anadi Dutt,
against whom an ex-parte decree was passed.  On
21.01.1999, Dayal Singh also got a deed of conveyance
executed in his favour by Asis Kumar Dutt, alleged true legal
heir of the Late Tarapada Dutta.  Dayal Singh got his name
mutated in Kolkata Municipal Corporation.
2.6 The Executing Court by order dated 10.08.2004 rejected Misc.
Case No.10 of 1996 and Misc. Case No.11 of 1996 filed by
respondent No.1.  Executing court held that respondent No.1
failed to prove that he has acquired title by way of adverse
possession.  Against the order dated 10.08.2004 rejecting the
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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Misc. applications filed by respondent No.1, first appeal, FMA
No. 720 of 2005 was filed by respondent No.1 in the Calcutta
High Court, which appeal has been allowed by Calcutta High
Court by the impugned judgment dated 15.12.2009.  The High
Court by impugned judgment has set aside the order of the
Executing Court dated 10.08.2004 disposing the application
filed by respondent No.1 under Order XXI Rules 98, 99 and
100 with a direction that appellant (respondent No.1 in this
appeal) should be put back into possession of the suit
property.  Aggrieved by the judgment of the High Court, this
appeal has been filed.
3. We have heard Shri Debal Banerji, learned senior counsel for
the appellant and learned counsel appearing for the respondent.
4. Shri Debal Banerji, learned senior counsel appearing for the
appellant submits that Executing Court had rightly rejected the
application of respondent No.1 filed under Order XXI Rules 98, 99 and
100 CPC, he having failed to prove his title over suit premises.  It is
submitted that the appellants were put in possession of the property in
execution of decree of the Court.  The Executing Court having held that
respondent No.1 failed to prove his title by adverse possession, the
application was rightly rejected.  It is further submitted that T.S.No.211
of 1990 filed by respondent No.1 claiming for declaration of the title on
the basis of adverse possession has been subsequently dismissed
on
16.03.2009.  It is submitted that High Court committed error in allowing
the appeal filed by respondent No.1 without any valid ground.  It is
submitted that High Court has in its impugned judgment erred in taking
the view that the question whether the appellant has obtained any title in
respect of the suit property by way of adverse possession or not, need
not be gone into in the appeal.  It is submitted that decree passed by Civil
Court in favour of the appellant was never challenged by anyone
including the respondent No.1 or Asis Kumar Dutt, who is claimed by
respondent No.1 as son of Tarapada Dutta.  Respondent No.1 having
failed to prove his title to the property, he was not entitled to put back in
the possession and High court committed error in allowing the appeal of
respondent No.1.
5. Learned counsel for the respondent refuting the submissions of
the learned counsel for the appellant contends that the fact is that
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respondent No.1 was in long possession of the premises and had
acquired possessory title.  It is submitted that several documents were
filed by the respondent No.1 before the Executing Court to prove his
possession. It having been found that respondent No.1 was in
possession prior to he being dispossessed in execution of the decree, he
was entitled to be put back into possession.  It is submitted that it was
not necessary for respondent No.1 to establish his title to the land in
dispute for purposes of Order XXI Rules 98, 99 and 100 CPC.  It was
sufficient for the respondent No.1 to prove that he was in possession
prior to his dis-possession, which was sufficient for putting him back into
possession.  He submitted that the High Court did not commit any error
in putting back the appellants into possession by allowing the appeal.  He
submits that the appellants have obtained a fraudulent decree against a
person Anadi Dutt, claiming to be son of Late Tarapada Dutta, whereas
the real son is Asis Kumar Dutt.  The respondent No.1 has been
dispossessed on the basis of a fraudulent ex-parte decree, on the strength
of agreement of sale executed by a person, who has no title to the
property.
6. We have considered the submissions of the learned counsel for
the parties and have perused the records.
7. There is no dispute between the parties that the premises in
question was originally owned by one Tarapada Dutta.  The case of the
respondent No.1 is that his father
Late Iqbal Singh has trespassed into
the premises No.15, Sahanagar Road and after his death in 1965, it was
respondent No.1, who was in occupation and possession of the
premises.  In pursuance of decree for specific performance of contract
passed in T.S. No. 50 of 1994 and T.S. No.51 of 1994, in execution
proceedings, the decree holders were put in possession on 12.04.1996.
At the time of taking possession, one Shri Gopal Adak was found present
in the premises, who had claimed to be employee of respondent No.1.
Respondent No.1 had filed a suit for declaration of the title on the basis
of adverse possession being T.S. No. 211 of 1990.  Copy of the plaint of
the suit filed in the Court of 3rd Munsiff, 24 Parganas is brought on
record as Annexure P-1.  In the suit, following reliefs had been claimed
by the respondent No.1, who was plaintiff in the suit:-
“a)  A declaratory decree that the plaintiff has absolute
possessory title in the suit premises No.15, Shahanagar Road,
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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Calcutta under P.S. Tollygunge as fully described in the Schedule
‘A’ of the plaint since the year 1965 to the exclusion of all other
person or persons.
b) Decree for permanent injunction restraining the defendant and/
or any person on its behalf and agent, its men, for interfering with the
plaintiff’s possession and occupation of the suit premises fully described
in Schedule ‘A’ of the plaint in any manner whatsoever.
c) Temporary injunction.
d) Ad-interim injunction in terms of prayer (c) above.
e) Commission.
f)Receiver.
g) Costs.”
8. In the application, which was filed by respondent No.1 for
putting him back into possession under Order XXI Rules 98, 99 and 100
CPC, the respondent No.1 has claimed his possession since 1965 after
death of his father.  The respondent No.1 in his application has also
relied on filing of suit for declaration of his title being Suit No.211 of
1990.  There is no dispute between the parties that in execution of
decree of specific performance, the appellants were put in possession
and respondent No.1 aggrieved by his dispossession had filed an appli-
cation under Order XXI Rules 98, 99 and 100.
9. Before we proceed further, it is necessary to look into the
provisions of Order XXI Rules 98, 99 and 100, as it existed at the
relevant time.  It is to be noted that by Code of Civil Procedure
(Amendment) Act, 1976, there has been amendment in Order XXI Rules
97 to 103.  Order XXI Rule 97 deals
with the resistance or obstruction to
possession of immovable property, with which we are not concerned.
Present is a case where the respondent No.1 alleged his dispossession
by decree holders.
10. Order XXI Rules 97 to 103 was substantially amended by
Code of Civil Procedure Amendment Act, 1976, Act No.104 of 1976
w.e.f. 01.02.1977. The bill further to amend the code of Civil Procedure
of 1908 was introduced in Parliament as Bill No.27 of 1974 on 08.04.1974.
The statement of objects and reasons of the bill is relevant to be noticed.
The statement of objects and reasons as well as notes on clauses were
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published in the Gazette of India extraordinary Part II Section (2) on
08.04.1974. Notes of clauses with regard to amendment of Rules 97 to
103 of Order XXI of Civil Procedure Code is contained in Clause 75
(sub-clause xxxiii), which is to the following effect: -
“Sub-clause(xxxiii). – The general scheme of rules 97 to 103
has been altered on the lines of the amendments proposed to
rules 58 to 63. The main feature is that questions (including a
question relating to right, title or interest in the property)
arising between the parties to a proceeding under rule 97 or
rule 99 is to be determined in execution proceeding itself and
not left to be decided by way of separate suit. Rule 98 has
been amplified to cover cases of resistance, etc., by a person
acting under any instigation by the judgment-debtor.”
11. In the present case, the Rule which has fallen for
interpretation is Rule 101 of Order XXI. What was the Rule 101 prior to
1976 Amendment and subsequent to 1976 amendment is relevant to be
noticed to mark the difference into legislative scheme.
12. Rule 101 prior to amendment contained marginal note “Bona
fide claimant to be restored to possession” which Rule is as follows: -
13. After the 1976 amendment both the marginal note and Rule
101 was substantially changed. Rule 101 after 1976 Amendment is as
follows: -
“101. Where the Court is satisfied that the 
applicant was in possession of the property on 
his own account or on account of some person
other than the judgment-debtor, it shall direct 
that the applicant be put into possession of the 
property.” 
Bona fide 
claimant to be 
restored to 
possession.

“Question  
to be determined 
101. 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.”

SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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14. The scope and ambit of Rule 101 prior to amendment was
entirely different as compared to Rule 101 as was brought into statute
after 1976 amendment. Under unamended Rule 101, a bonafide
claimant had to be restored to possession and by virtue of Rule 103,
Orders passed under Rule 101 was conclusive subject to the result of
the suit to be filed by any party not being the judgment-debtor.
Unamended Rule 103 was as follows: -
15. Rule 103 was also amended by 1976 amendment and after
the amendment, Rule 103 now is as follows: -
16. There is a marked difference between Rule 101 as it existed
prior to amendment and as it now exists after 1976 amendment. Earlier
a person who was a bona fide claimant and who satisfied that he was in
possession of the property on his own account or on account of some
other person then the judgment-debtor could have been put in
possession of the property on an application under Rules 100 and 101,
whereas now after the amendment for putting back into possession an
applicant has not only to prove that he is in bona fide possession rather
he has to prove his right, title or interest in the property. What was
earlier to be adjudicated in a suit under unamended  Rule 103 is now to
be adjudicated in Rule 101 itself, thus, for being put in possession, an
applicant has to prove his right, title or interest in the property and by
simply proving that he was in possession prior to the date he was
dispossessed by decree-holder, he is not entitled to be put back in
possession.
17. In view of the statutory scheme which is delineated by
amended provisions of Rule 101, the submissions of the counsel of the
“103. Any party not being a judgment-debtor against 
whom an order is made under rule 98, rule 99, or 
rule 101 may institute a suit to establish the right 
which he claims to the present possession of the 
property; but, subject to the result of such suit(if 
any), the order shall be conclusive.” 
Orders 
conclusive 
subject to 
regular suit.

“Orders 
to be 
treated  
as 
decrees.
103. Where any application has been adjudicated upon 
under rule 98 or rule 100, the order made thereon shall 
have the same force and be subject to the same 
conditions as to an appeal or otherwise as if it were a 
decree.”
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respondent that by simply proving the fact that he was in possession
prior to he being dispossessed by decree-holder, he should be put back in
possession cannot be accepted. The respondent-applicant had to prove
his right, title or interest in the property to be put back in possession.
18.  Now, for ready reference, Order XXI Rules 99, 100 and 101
are quoted below:-
“99.Dispossession by decree-holder or purchaser— (1)
Where any person other than the judgment-debtor is dispossessed
of immovable property by the holder of a decree for possession
of such property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he may make an
application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed
to adjudicate upon the application in accordance with the provisions
herein contained.
100. Order to be passed upon application complaining of
dispossession— Upon the determination of the questions referred
to in rule 101, the Court shall, in accordance with such
determination,—
(a) make an order allowing the application and directing that
the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other order as, in the circumstances of the case,
it may deem fit.
101. Question 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.”
19. Whether in the facts of the present case, Executing Court
was required to determine questions relating to right, title or interest in
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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the property or on mere finding that respondent No.1 was in possession
prior to he being dispossessed from the property, he was entitled to put
back into possession ?  The Executing Court while determining the Misc.
application of the respondent No.1 has considered the entire case of the
respondent No.1 including the documents filed by him for proving his
possession.  The Executing Court noticed that respondent No.1 has
already filed a Suit No.211 of 1990 for declaration of his title on the basis
of adverse possession.  After considering the oral evidence and
documentary evidence, the Executing Court returned the findings that
respondent No.1 had failed to establish his case that he has clear right,
title and interest over the suit property by way of adverse possession.
Following observations of the trial court may be referred to in this
context:-
“Next we have to examine the other aspect of the matter, i.e., we
are required to determine all the questions including question
relating to right, title and interest of the suit property which arises
under application u/R 97 or 99.  We have initially observed that
there is a title suit pending where the question about the
acquisition of title by the petitioner by way of adverse possession
is the subject matter. It is to be carefully thought whether at this
stage it will be proper to pass any observation on a matter which
is already pending before a competent Court of law.
We cannot
ignore that title suit is yet to be decided conclusively and pending
the suit we should not pass any comment about petitioner’s claim.
Be that as it may, let us find out as to how far the petitioner has
been able to establish his assertion that he has acquired right, title
and interest over the suit property by way of adverse possession.
Therefore, we find from the evidence of PW1 that it is not wholly
trustworthy and from his oral evidence it is very difficult to appre-
ciate the petitioner’s case.  It is not clear as to how and on what
date Tarapada Dutta, the admitted owner was disposed or in what
manner Iqbal Singh came to possess and occupy the suit
property. The elements for asserting right by adverse possession
have not at all been proved in this case.  Rather, there has been
no attempt by the petitioner to establish his acquisition of title by
way of adverse possession.
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In a proceeding u/s 21 Rules 98 and 99 it is even more essential to
establish his right so as to seek relief.  The whole burden was
upon the PW1 but he failed miserably.”
20. Thus, the executing court returned categorical finding that
appellant has failed to prove his right, title and interest and his
application deserves to be rejected.  The High Court in appeal filed by
respondent No.1 without upsetting the finding of the Executing Court
that respondent No.1 failed to prove his title by adverse possession
allowed the appeal by making following observations:-
“Be that as it may, the question whether the appellant has
obtained any title in respect of the suit property by way of
adverse possession or not is not being decided by this Court and
thus this Court is not going into the said question.  But the fact
remains that the appellant was very much in possession of the
suit property when the respondent No.1 took delivery of
possession of the suit property through the Court’s bailiff without
any proceeding being initiated against the appellant and without
the appellant being served with any prior notice with regard to
such delivery of possession…………..”
21. The amendments made in Order XXI Rules 97 to 103 by
Code of Civil Procedure (Amendment) Act, 1976 came to be
considered by this Court in Shreenath and Another Vs. Rajesh and
Others, (1998) 4 SCC543.  This Court while noticing the question,
which had arisen in the above case has made following
observations in
paragraph Nos. 2, 3 and 5:-
“2. The courts within their limitation have been interpreting the
procedural laws so as to conclude all possible disputes pertaining
to the decretal property which is within its fold in an execution
proceeding, i.e., including what may be raised later by way of
another bout of litigations through a fresh suit. Similarly
legislatures equally are also endeavouring by amendments to
achieve the same objective. The present case is one in this
regard. Keeping this in view, we now proceed to examine the
present case.
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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3. In interpreting any procedural law, where more than one
interpretation is possible, the one which curtails the procedure
without eluding justice is to be adopted. The procedural law is
always subservient to and is in aid of justice. Any interpretation
which eludes or frustrates the recipient of justice is not to be
followed.
5. The question raised is, whether the third party in possession of
a property claiming independent right as a tenant not party to a
decree under execution could resist such decree by seeking
adjudication of his objections under Order 21 Rule 97 of the Civil
Procedure Code?”
22.  In the above case, respondent No.1 filed a suit for
redemption of mortgage against respondent No.2, which was decreed.
The decree directed the delivery of vacant possession of the mortgaged
property to the applicant (respondent No. 1). In the said suit, the
appellants were not parties. The appellant, who claimed to be in
possession, obstructed the execution of the decree on the ground that
they were the tenants in the shop from much before the execution of the
mortgage.  In the above context, this Court noticed the amendments
made in Order XXI.  In paragraph Nos. 11, 13 and 16, following was laid
down:-
“11. So, under Order 21 Rule 101 all disputes between the
decree-holder and any such person is to be adjudicated by the
executing court. A party is not thrown out to relegate itself to the
long-drawn-out arduous
procedure of a fresh suit. This is to
salvage the possible hardship both to the decree-holder and the
other person claiming title on their own right to get it adjudicated
in the very execution proceedings. We find that Order 21 Rule 35
deals with cases of delivery of possession of an immovable
property to the decree-holder by delivery of actual physical
possession and by removing any person in possession who is bound
by a decree, while under Order 21 Rule 36 only symbolic
possession is given where the tenant is in actual possession.
Order 21 Rule 97, as aforesaid, conceives of cases where
delivery of possession to the decree-holder or purchaser is
resisted by any person. “Any person”, as aforesaid, is wide enough
to include even a person not bound by a decree or claiming right
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in the property on his own including that of a tenant including a
stranger.
13. So far sub-clause (1) of Rule 97 the provision is the same but
after the 1976 Amendment all disputes relating to the property
made under Rules 97 and 99 are 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’s 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 the own, if resists delivery of possession to the
decree-holder, the dispute and his claim has to be decided after
the 1976 Amendment under Rule 97 read with Rule 101 and prior
to the 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 was 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.
16. In Noorduddin v. Dr K.L. Anand, (1995) 1 SCC 242 it is
held: (SCC p. 249, para 8)
“8. Thus, the scheme of the Code clearly adumbrates that when
an application has been made under Order 21 Rule 97, the
court is enjoined to adjudicate upon the right, title and interest
claimed in the property arising between the parties to a
proceeding or between the decree-holder and the person
claiming independent right, title or interest in the immovable
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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property and an order in that behalf be made. The
determination shall be conclusive between the parties as if it
was a decree subject to right of appeal and not a matter to be
agitated by a separate suit. In other words, no other
proceedings were allowed to be taken. It has to be
remembered that preceding Civil Procedure Code Amendment
Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code
was available which has been now taken away. By necessary
implication, the legislature relegated the parties to an
adjudication of right, title or interest in the immovable property
under execution and finality has been accorded to it. Thus, the
scheme of the Code appears to be to put an end to the
protraction of the execution and to shorten the litigation
between the parties or persons claiming right, title and interest
in the immovable property in execution.”
23. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and
Another, (1998) 3 SCC 723, a Three-Judge Bench had occasion to
consider provisions of Order XXI Rules 97, 101, 102 and 103 as amended
by Code of Civil Procedure (Amendment) Act, 1976.  In paragraph
Nos. 9 and 10, following was laid down:-
“9. At the outset, we may observe that it is difficult to agree with
the High Court that resistance or obstructions made by a third
party to the decree of execution cannot be gone into under Order
21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code
are subsumed under
the caption “Resistance to delivery of
possession to decree-holder or purchaser”. Those rules are
intended to deal with every sort of resistance or obstructions
offered by any person. Rule 97 specifically provides that when
the holder of a decree for possession of immovable property is
resisted or obstructed by “any person” in obtaining possession of
the property such decree-holder has to make an application
complaining of the resistance or obstruction. Sub-rule (2) makes
it incumbent on the court to proceed to adjudicate upon such
complaint in accordance with the procedure laid down.
10. It is true that Rule 99 of Order 21 is not available to any
person until he is dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all questions “arising
between the parties to a proceeding on an application under Rule
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97 or Rule 99” shall be determined by the executing court, if such
questions are “relevant to the adjudication of the application”. A
third party to the decree who offers resistance would thus fall
within the ambit of Rule 101 if an adjudication is warranted as a
consequence of the resistance or obstruction made by him to the
execution of the decree. No doubt if the resistance was made by
a transferee pendente lite of the judgment-debtor, the scope of
the adjudication would be shrunk to the limited question whether
he is such a transferee and on a finding in the affirmative
regarding that point the execution court has to hold that he has no
right to resist in view of the clear language contained in Rule 102.
Exclusion of such a transferee from raising further contentions is
based on the salutary principle adumbrated in Section 52 of the
Transfer of Property Act.
24. To the same effect is the judgment of this Court in Ghasi
Ram and Others Vs. Chait Ram Saini and Others, (1998) 6 SCC
200. Another judgment, which need to be noticed is judgment of this
Court in Ashan Devi and Another Vs. Phulwasi Devi and Others,
(2003) 12 SCC 219.  In the above case, a decree of specific
performance of contract was obtained on 08.11.1990.  Decree was put
in execution by the decree-holder, in pursuance of which execution,
possession was also obtained on 05.09.1996 through Court.  A petition
was filed under Order XXI Rule 99 before the Executing Court claiming
that the
objector being not party to the suit for specific performance,
they cannot be dispossessed in execution of the decree.  It was
contended by the objector that they have purchased the property by sale
deed in the year 1985 and decree in the absence of the Objectors who
were necessary parties to the suit, is not executable.   The application
was allowed by the Executing Court and objectors were put in
possession, against which order, an appeal was filed in the High Court.
High Court had allowed the appeal holding that the Objectors were not
actually and physically dispossessed, the application under Order XXI
Rule 99 of the Code was not maintainable and the executing court could
not have decided the competing claims of the parties to the property in
the course of execution proceedings.  The matter was taken to this
Court, where this Court after noticing the relevant provisions have
interpreted the provisions of Order XXI Rules 99 and 101.  This Court
held that the purpose of amendment brought by Code of Civil Procedure
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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(Amendment) Act, 1976 was to enable the third parties to seek
adjudication of their rights in execution proceedings with a view to cur-
tail the prolongation of litigation.  Following was laid down in paragraph
Nos. 25, 28, 29 and 30:-
“25. In interpreting the provisions of Order 21 Rule 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 Order 21 to enable the third parties
to seek adjudication of their rights in execution proceedings
themselves with a view to curtail the prolongation of litigation and
arrest delay caused in execution of decrees. See Bhag Mal v.
Ch. Parbhu Ram, (1985) 1 SCC 61.
28. In view of the discussion aforesaid, in our opinion, the executing
court was well within law in recording evidence and adjudicating
the claim of the third party. The executing court rightly rejected
the preliminary objection to the maintainability of application of
the objectors under Order 21 Rule 99 of the Code and decided
the other issues on merits of their claims arising between the
decree-holder and the objectors.
29. The High Court in appeal mainly concentrated its decision on
the question of tenability
of application under Order 21 Rule 99 at
the instance of the objectors and having rejected the said application
did not in detail deal with other issues on merits arising between
the decree-holder and the objectors. The issues on merits which
were liable to be re-examined by the appellate court, as the first
court of facts and law, were:
(1)  Whether the decree-holder at the time of institution of suit
had knowledge of the execution of the registered sale deeds
in favour of the objectors and yet they deliberately avoided
to make them as parties to the suit and thus obtained in
collusion with the vendors an ex parte decree of specific
performance of the contract.
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(2)  Whether the objectors had full knowledge of existence of
prior agreement of sale executed by the vendors in favour
of the decree-holder and despite such knowledge they
purchased the suit property to frustrate the agreement
existing in favour of the decree-holder.
30. As the appellate court, having rejected the objectors’
application under Order 21 Rule 99, has not in greater detail gone
into the contested issues on merits, it is necessary to set aside the
impugned order of the High Court and remand the case to it for
decision of the appeal afresh in accordance with law.”
25. The above judgment of this court clearly lays down that all
issues between the parties in application under Order XXI Rules 99, 100
and 101 need to be examined by executing court and decided.
26. The use of the words “all questions (including the 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
…………” has to be given meaning and full play.  It is also relevant to
note that prior to Amendment, 1976, under Rule 103, the aggrieved party
could have brought a suit for determination of rights between them but
by Amendment, 1976, Rule 103 has been amended to the following
effect:-
“103.Orders to be treated as decrees.— Where any
application has been adjudicated upon under rule 98 or rule 100,
the order made thereon shall have the same force and be subject
to the same conditions as to an
appeal or otherwise as if it were a
decree.”
27. The purpose of amendment under Rule 103 is also that any
adjudication made under Rule 101 shall have same force and be subject
to the same conditions as to an appeal or otherwise as if it was a decree.
Rule 101, thus, affords an opportunity to get all issues relating to right,
title or interest in the property to be determined.  When the respondent
No.1 filed his application claiming to be put back into possession, it was
obliged to establish its right, title or interest in the property without which
his application could not have been allowed.  The Executing Court has
considered the application of respondent No.1 in right perspective and
has clearly held that respondent No.1 failed to prove his title by adverse
possession, hence application deserves to be rejected.
  SHAMSHER SINGH  v.  LT. COL. NAHAR SINGH (D)
THR. LRS. [ASHOK BHUSHAN, J.]
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28. High Court committed error in observing that in application
proceedings under Order XXI Rules 99, 100 and 101, the Court is not to
decide such question.  Without determination of right, title or interest, the
application could not have been allowed.  We having already extracted
the observations of the High Court, where it clearly held that the title in
respect of the property by way of adverse possession need not be gone
into in the appeal before it.  The above observation of the High Court
was erroneous. In the proceeding under Order XXI Rules 99, 100 and
101, right, title or interest has to be determined and without establishing
right, title or interest, the respondent No.1 cannot claim that he should be
put back into possession.  We do not accept the submission of the learned
counsel for the respondent that on mere fact that respondent No.1 was
in possession of the premises prior to being dispossessed, they should be
put back into possession.  For putting back into possession, the
respondent No.1 was obliged to establish his title to the property by
adverse possession, without which, he could not have asked the Court to
put him back into possession.  The High Court clearly erred in allowing
the appeal and the Executing Court has rightly rejected the application
filed by respondent No.1.  We may further notice that suit No.211 of
1990 filed by respondent No.1 seeking declaration of title to the property
by
adverse possession has been subsequently dismissed by decree on
16.03.2009 and no steps have been taken for restoration of the suit.
29. We do not find any error in the order passed by the Executing
Court and the High Court committed error in allowing the appeal,
directing the respondent No.1 to be put back into possession. In view of
the foregoing discussions, we allow this appeal and set aside the
judgment of the High Court dated 15.12.2009 and restore the order of
the Executing Court dated 10.08.2004.  Parties shall bear their
own costs.
Kalpana  Kr. Tripathy
                                Appeal allowed.