SMT. VED KUMARI (DEAD THROUGH HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL versus MUNICIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER
[2023] 11 S.C.R. 602, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 11 S.C.R. 602 : 2023 INSC 764
CASE DETAILS
SMT. VED KUMARI (DEAD THROUGH HER LEGAL 
REPRESENTATIVE) DR. VIJAY AGARWAL
v.
MUNICIPAL CORPORATION OF DELHI THROUGH ITS 
COMMISSIONER
(Civil Appeal No(s). 5409-5410 of 2023)
AUGUST 24, 2023
[B. V. NAGARATHNA AND 
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: The question for consideration was whether 
the High Court was justiﬁ ed in upholding the order of the Executing 
Court holding that the decree for possession of immovable property is not 
executable against the judgement debtor, merely because the decree-holder 
lost possession to an encroacher.
Code of Civil Procedure, 1908 – Ord. XXI rr 97 to 101 – Execution 
of judgment and orders – Executing Court holding an execution decree 
as inexecutable, on the ground that the decree-holder lost possession to 
an encroacher – Correctness of:
Held: Executing Court could not have dismissed the execution petition 
by treating the decree to be inexecutable merely on the basis that the decree-
holder lost possession to a third party/encroacher – If this is allowed, every 
judgment-debtor in possession of the immoveable property till the decree 
is passed, would hand over possession to a third party to defeat the decree-
holder’s right and entitlement and this would continue indeﬁ nitely and no 
decree for immovable property can be executed – It was the duty of the 
Executing Court to issue warrant of possession for eﬀ ecting physical delivery 
of the suit land to
the decree-holder in terms of suit schedule property and 
if any resistance was oﬀ ered by any stranger to the decree, the same be 
adjudicated upon in accordance with rr. 97 to 101 of Ord. XXI – On facts, 
602
603
no resistance oﬀ ered by any purported stranger/encroacher to the decree – 
In the absence thereof, the Executing Court had no occasion to invoke Ord. 
XXI, rr 97 to 101, at the instance of the decree-holder – Executing Court 
could not have closed the execution proceedings holding that the decree is 
inexecutable – Thus, the orders passed by the High Court and the Executing 
Court set aside – Issuance of direction to the Executing Court to execute 
the decree by eﬀ ecting delivery of physical vacant possession to the decree-
holder. [Paras 10, 15 and 16]
LIST OF CITATIONS AND OTHER REFERENCES
Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. (1997) 3 
SCC 694 : [1997] 1 SCR 463; Bhanwar Lal v. Satyanarain (1995) 1 SCC 
6 : [1994] 4 Suppl. SCR 208; Shreenath & Anr. v. Rajesh & Ors. (1998) 4 
SCC 543 : [1998] 2 SCR 709; Sameer Singh & Anr. v. Abdul Rab & Ors. 
(2015) 1 SCC 379 : [2014] 10 SCR 1004; Jini Dhanrajgir & Anr. v. Shibu 
Mathew & Anr. (2023) SCC Online SC 643 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5409-5410 
of 2023.
From the Judgment and Order dated 07.04.2016 in CRP No. 152 of 
2012 and dated 04.11.2016 in RP No. 487 of 2016 of the High Court of 
Delhi at New Delhi.
Appearances:
Gopal Sankaranarayanan, Sr. Adv., Senthil Jagadeesan, Adit S. Pujari, 
Ms. Maitreya Subramaniam, Ms. Mantika Vohra, Advs. for the Appellant.
Praveen Swarup, Devesh Maurya, Ms. Payal Swarup, Chander
Shekher Malhotra, Vivek Verma, Hari Sahteshwar, Advs. for the 
Respondent.
SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY 
AGARWAL v. MCD THR. ITS COMMISSIONER
604
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
PRASHANT KUMAR MISHRA, J.
Leave granted. 
2. These appeals arise from the judgment and orders dated 07.04.2016 
and 04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487 of 2016 
respectively, whereby the High Court has aﬃ  rmed the order of the Executing 
Court dated 11.09.2012 holding that the decree for possession of immoveable 
property is not executable against the judgment-debtor. 
3. The factual matrix of the case is that the appellant (since deceased 
represented through Lrs.) who is the original plaintiﬀ , leased out land 
measuring 400 sq. yds. out of Khasra No. 4/39/1 situated at village Khureji 
Khas, Abani Radheypuri, Ilaqa Shahdara, Delhi (hereinafter referred to as 
‘the Suit Land’) within the limit of Municipal Corporation Delhi vide lease 
deed dated 06.01.1973 to the respondent-Corporation (Original defendant) 
for a period of 10 years initially @ monthly rent of Rs. 30/-, which was 
renewable with the consent of both the parties, however the lease was not 
renewed subsequently after expiry on 06.01.1983. Thereafter, the appellant 
served a notice upon the respondent-Corporation dated 02.12.1987 vide 
which the respondent-Corporation was called upon to hand over the peaceful 
vacant possession of the Suit Land on or before 06.01.1988. The respondent-
Corporation did not turn to the demand of the appellant. 
 3.1 The appellant/plaintiﬀ  ﬁ led Suit No. 205 of 1988
for recovery 
of possession in respect of the Suit Land against respondent-Corporation/
defendant before the Sub-Judge, Ist Class, Delhi, which was decreed for 
possession in favour of appellant/plaintiﬀ  and against the respondent-
Corporation/defendant on 23.03.1990. 
3.2 Thereafter, the appellant ﬁ led execution proceedings bearing 
Execution Case No. 7 of 1991 to get the decree for possession executed 
against the judgment-debtor i.e. respondent-Corporation. On 03.12.1993, 
the appellant/decree-holder obtained warrants for delivery of possession 
from the Executing Court against the respondent-Corporation. When the 
appellant/decree-holder along with the police force went on spot to execute
605
the warrants they were resisted and because of such high-handed behaviour 
including, inter alia, the threats of the employees/agents of the respondent-
Corporation to intimidate the appellant, warrants for delivery of possession 
could not be executed. 
3.3 At this stage, the respondent-Corporation moved an application 
before the Executing Court to stay the operation of the warrants for delivery 
of possession earlier issued. The Executing Court stayed the execution 
proceedings until 15.04.1994, while taking into consideration that the 
demolition of the school building upon the decretal land would aﬀ ect the 
career of around 400 students. 
3.4 The respondent-Corporation ﬁ led objections on the ground that 
the spot at which the school is built admeasures 1700 square yards and the 
disputed decretal land cannot be identiﬁ ed. The said objections were rejected 
by the Executing Court vide order dated 27.05.1994. 
3.5 On 19.08.1994, the appellant ﬁ led an application for issuance of 
fresh warrants of possession and the respondent-Corporation on the same day 
also moved an application to stay the execution proceedings on the ground 
that the respondent-Corporation had undertaken land acquisition proceedings 
of the decretal land. By a subsequent application dated 01.03.1996 the 
respondent-Corporation stated that it had deposited a sum of Rs. 1,60,000/- 
with the Land Acquisition Commissioner, Delhi. 
3.6 The Executing Court vide order dated 19.03.1999 dismissed the
said applications of the respondent-Corporation on the ground that the 
respondent-Corporation had not made any serious eﬀ ort in a span of eight 
years to acquire the decretal land and that the acquisition of the decretal 
land can take place even after the same is handed over to the appellant. 
3.7 On account of the refusal of the respondent-Corporation to hand 
over possession of the decretal land to the appellant, the appellant ﬁ led a 
Contempt Petition before the High Court of Delhi against the respondent-
Corporation which was registered as CC No. 126 of 1999, alleging non-
compliance of the order of the Trial Court. The Contempt Petition was 
disposed of vide order dated 20.02.2003 with directions that it would be 
open to the appellant to take recourse to such steps as may be permissible 
for the appellant under the law for getting the encroachers evicted. 
SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY 
AGARWAL v. MCD THR. ITS COMMISSIONER 
[PRASHANT KUMAR MISHRA, J.]
606
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
3.8 Upon disposal of the Contempt Petition, the appellant once again 
got issued warrants for possession of decretal land. Pursuant to the directions 
of the Executing Court, the respondent-Corporation submitted demarcation 
reports dated 13.04.2001 and 24.07.2002 in respect of the suit land and 
raised the issue of acquisition of the said property. 
3.9 The Executing Court vide its order dated 11.09.2012 while taking 
into consideration the demarcation reports dismissed the Execution Petition 
ﬁ led by the appellant on the ground that the encroacher(s) upon the land 
in question were not ‘party to the suit’ and, therefore, the decree could not 
be executed. 
3.10 Being aggrieved by the dismissal of the execution petition, the 
appellant preferred a Revision Petition before the High Court of Delhi which 
was dismissed vide order dated 07.04.2016 while holding that the appellant 
has not, despite speciﬁ c directions, taken any steps to get the encroacher(s) 
identiﬁ ed.
3.11 The appellant being dissatisﬁ ed sought review of the judgment 
and order dated 07.04.2016 by ﬁ ling review petition, which saw the same 
fate as the revision petition. 
Hence these appeals by way of petitions for special leave to appeal. 
4. We have heard Mr. Neeraj Kishan Kaul and Mr. Gopal 
Sankaranarayanan, learned senior counsel for the appellant and Mr. Praveen 
Swarup, learned counsel for respondent and perused the material placed 
on record.
5. Learned
senior counsel for the appellant/ decree-holder strenuously 
contended that since admittedly the respondent-Corporation executed a lease 
deed and remained in possession of the suit land as a tenant, which fact is 
established in favour of the appellant/decree-holder in the suit as also in the 
execution proceedings, at various stages, it is wholly inappropriate for the 
respondent-Corporation to contend that it is not in possession of the suit 
land. It is further contended that while resisting delivery the judgment-debtor 
clearly stated that demolition of the school building for eﬀ ecting delivery 
of possession would aﬀ ect around 400 students and that it is taking steps to 
acquire the suit land and this fact would itself demonstrate that the judgment-
debtor is in possession of the suit land. Even if the suit land is subsequently
607
encroached by a third party, the judgment-debtor cannot escape the liability 
of satisfying the decree. 
 It is next contended that any encroachment on the suit land when 
it was possessed by the judgment-debtor would not nullify the execution 
proceedings and it is the duty of the respondent-Corporation, as a local 
authority, to identify the encroacher, if any, so that eﬀ ective steps are taken 
by the Executing Court to deliver physical vacant possession to the decree-
holder. 
Learned senior counsel would further contend that Order XXI of the 
Code of Civil Procedure, 1908 (CPC) is a complete code for resolving all 
disputes, including against strangers to the decree. Therefore, the execution 
proceedings could not have been dropped by the Executing Court. 
6. Per contra, learned counsel for the respondent-Corporation would 
submit that the suit land is not under the possession of the respondent-
Corporation rather it is in possession of the encroachers who should have 
been identiﬁ ed by the decree-holder. It is the speciﬁ c case of the respondent-
Corporation that as per the demarcation report dated 24.07.2002 the land 
has been identiﬁ ed and the suit land is found situated in the North, 36’ 
away/outside the boundary wall of the school, where some houses have 
been constructed by unknown persons and the same is not in possession of 
the respondent-Corporation and for this reason, the acquisition proceedings 
were dropped. 
Supporting the impugned order, it is
lastly contended, by way of an 
alternative submission in para 9 of the written submissions, that though the 
Executing Court has powers of execution under Order XXI Rules 97 to 101 
of the CPC, it can, if permissible in law, take action against the persons who 
are in possession of the disputed land, or, the decree-holder may ﬁ le a fresh 
suit against the encroachers. 
DISCUSSION 
7. In the judgment and decree dated 23.03.1990, the Trial Court 
categorically held that the respondent-Corporation is the lessee and since the 
lease has already been determined upon expiry of lease period of 10 years, 
the respondent-Corporation/defendant is bound to deliver physical vacant 
SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY 
AGARWAL v. MCD THR. ITS COMMISSIONER 
[PRASHANT KUMAR MISHRA, J.]
608
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
possession of the suit land and also to pay the rent and that the appellant/
plaintiﬀ  is entitled to a decree of ejectment and delivery of vacant possession 
by the respondent-Corporation/defendant in respect of the suit land as shown 
red in the site plan in Exhibit P4. The respondent-Corporation/defendant 
was also directed to hand over the possession of the suit land after removing 
the construction. This decree has attained ﬁ nality. 
8. In the course of execution, it was the stand of the respondent-
Corporation, at various stages, that grave prejudice would be caused to 
the students studying in the school building constructed on the suit land, 
therefore, instead of delivering the possession, it is in the process of 
acquiring the decretal land, which stand it continued to take from 1994 till 
March, 1999, at which point the respondent-Corporation’s application not 
to execute warrant of possession was dismissed by the Executing Court on 
the ground that it has not made any serious eﬀ ort to acquire the decretal 
land for about eight years. 
9. Surprisingly, for the ﬁ rst time, on 18.09.2009, the respondent-
Corporation informed the Executing Court that the suit land is not in its 
possession and the same has been encroached upon. On this information of 
the Judgment/debtor, the Executing Court directed it to disclose whether the 
land, which the respondent-Corporation is stating to have been encroached 
upon, is the suit
land and if so, then, to disclose as to when the suit land 
was vacated by the respondent-Corporation. Yet again, on 16.04.2010, the 
Executing Court observed that till date the respondent-Corporation has not 
disclosed the fact that as to with whom the suit land presently lies and the 
Deputy Commissioner of the respondent-Corporation was directed to reply 
to this query by way of ﬁ ling an aﬃ  davit. When the aﬃ  davit was ﬁ led, the 
Executing Court observed that the query has not been responded to properly. 
The Executing Court in its order dated 21.05.2010 noted the stand of the 
respondent-Corporation, at the inception of the suit, that the suit land is in 
its possession but that in execution proceedings, the respondent-Corporation 
has taken altogether a diﬀ erent stand that the school is running on a diﬀ erent 
parcel of land. The Executing Court further expressed doubt as to how, at 
that stage, the respondent-Corporation could take altogether a diﬀ erent stand 
and observed that it is liable to disclose as to how the possession of the suit 
land passed from it to a third party.
609
10. It is also important to notice that throughout the course of the 
execution proceedings, no resistance was oﬀ ered by any purported stranger/
encroacher to the decree. In the absence of such resistance, the Executing 
Court had no occasion to invoke Order XXI, Rules 97 to 101, at the instance 
of the decree-holder or otherwise. Unless, this procedure is adopted, the 
Executing Court could not have closed the execution proceedings by 
observing that the decree is inexecutable. 
11. In “Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr.” 
(1997) 3 SCC 694, this Court has observed that Order XXI of the CPC lays 
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. Referring to its earlier 
judgment in the matter of “Bhanwar Lal vs. Satyanarain” (1995) 1 SCC 
6 this Court concluded thus: 
‘11. In view of the aforesaid settled legal position, therefore, 
and in the light of the statutory scheme discussed by us earlier it 
must be held that Respondent 1 decree-holder’s application dated 
6-5-1991 praying for issuance of warrant for delivery of possession 
with the aid of armed force, was in substance for removal of obstruction 
oﬀ ered by the appellant and others under Order 21, Rule 97 CPC 
and had to be adjudicated upon as enjoined by Order 21, Rule 97, 
sub-rule (2) read with Order 21, Rule 101 and Order 21, Rule 98.
In this connection the Court had also to follow the procedure laid 
down by Order 21, Rule 105 which enjoins the executing court to 
which an application is made under any of the foregoing rules of 
the order to ﬁ x a date of hearing of the application. As the executing 
court refused to adjudicate upon the obstruction and the claim of the 
appellant who obstructed to the execution proceedings it had clearly 
failed to exercise jurisdiction vested in it by law. The High Court in 
revision also committed the same error by taking the view that such 
an application was not maintainable. It is of course true as submitted 
by learned counsel for the decree-holder that in para 4 of the judgment 
under appeal the High Court has noted that there was some discrepancy 
about the khasra number. But these are passing observations. On 
the contrary in the subsequent paragraphs of the judgment the High 
SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY 
AGARWAL v. MCD THR. ITS COMMISSIONER 
[PRASHANT KUMAR MISHRA, J.]
610
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
Court has clearly held that such an application by the objector was not 
maintainable and his only remedy was to move an application under 
Order 21, Rule 99 after handing over possession and consideration of 
objection to delivery of possession by a stranger to the decree at any 
earlier stage was premature. It must, therefore, be held that neither 
the executing court nor the High Court in revision had considered the 
objection of the appellant against execution on merits. Consequently 
the impugned judgment of the High Court as well as the order of 
the executing court in Civil Execution Case No. 25 of 1990 dated 
15-2-1996 are quashed and set aside and proceedings are remanded 
to the Court of Munsif II, Munger to re-decide the application of 
Respondent 1 decree-holder dated 6-5-1991 by treating it to be one 
under Order 21, Rule 97 for removal of obstruction of the appellant and 
after hearing the decree-holder as well as the appellant to adjudicate 
the claim of the appellant and to pass appropriate orders under Order 
21, Rule 97, sub-rule (2) CPC read with Order 21, Rule 98 CPC as 
indicated in the earlier part of this judgment.’
12. Similarly, in “Shreenath & Anr. Vs. Rajesh & Ors.” (1998) 4 
SCC 543 this Court observed thus:
‘10. Under sub-clause (1) Order 21 Rule 35, the executing court 
delivers actual physical possession of the disputed property to the 
decree-holder and, if necessary, by removing any person bound by
the 
decree who refuses to vacate the said property. The signiﬁ cant words 
are by removing any person bound by the decree. Order 21 Rule 36 
conceives of immovable property when in occupancy of a tenant or 
other person not bound by the decree, the court delivers possession 
by ﬁ xing a copy of the warrant in some conspicuous place of the said 
property and proclaiming to the occupant by beat of drum or other 
customary mode at some convenient place, the substance of the decree 
in regard to the property. In other words, the decree-holder gets the 
symbolic possession. Order 21 Rule 97 conceives of resistance or 
obstruction to the possession of immovable property when made in 
execution of a decree by “any person”. This may be either by the person 
bound by the decree, claiming title through the judgment-debtor or 
claiming independent right of his own including a tenant not party to
611
the suit or even a stranger. A decree-holder, in such a case, may make 
an application to the executing court complaining such resistance 
for delivery of possession of the property. Sub-clause (2) after 1976 
substitution empowers the executing courts when such claim is made 
to proceed to adjudicate upon the applicant’s claim in accordance with 
the provisions contained hereinafter. This refers to Order 21 Rule 101 
(as amended by 1976 Act) under which all questions relating to right, 
title or interest in the property arising between the parties under Order 
21 Rule 97 or Rule 99 shall be determined by the court and not by a 
separate suit. By the amendment, one has not to go for a fresh suit but 
all matter pertaining to that property even if obstruction by a stranger 
is adjudicated and ﬁ nally given even in the executing proceedings. 
We ﬁ nd the expression “any person” under sub-clause (1) is used 
deliberately for widening the scope of power so that the executing 
court could adjudicate the claim made in any such application under 
Order 21 Rule 97. Thus by the use of the words “any person” it includes 
all persons resisting the delivery of possession, claiming right in the 
property, even those not bound by the decree, including tenants or other 
persons claiming right on their own, including a stranger.’
13. In “Sameer Singh & Anr. Vs. Abdul Rab & Ors.” (2015) 1 SCC 
379, this Court again observed that the Executing Court has the authority 
to adjudicate all
the questions pertaining to right, title or interest in the 
property arising between the parties including the claim of a stranger who 
apprehends dispossession from the immovable property. This is provided 
to avoid multiplicity of proceedings and if a court declines to adjudicate by 
stating that it lacks jurisdiction, that by itself would occasion failure on part 
of the Executing Court to exercise the jurisdiction vested in it. 
14. In most recent judgment in “Jini Dhanrajgir & Anr. Vs. Shibu 
Mathew & Anr.” (2023) SCC Online SC 643, the legal position has been 
reiterated that Rules 97 to 103 of Order XXI of the CPC provide the sole 
remedy both to the parties to a suit as well as to a stranger to the decree 
put to execution. 
15. In view of the settled legal position, as noted (supra), it was the 
duty of the Executing Court to issue warrant of possession for eﬀ ecting 
physical delivery of the suit land to the decree-holder in terms of suit 
SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY 
AGARWAL v. MCD THR. ITS COMMISSIONER 
[PRASHANT KUMAR MISHRA, J.]
612
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
schedule property and if any resistance is oﬀ ered by any stranger to the 
decree, the same be adjudicated upon in accordance with Rules 97 to 101 of 
Order XXI of the CPC. The Executing Court could not have dismissed the 
execution petition by treating the decree to be inexecutable merely on the 
basis that the decree-holder has lost possession to a third party/encroacher. 
If this is allowed to happen, every judgment-debtor who is in possession of 
the immoveable property till the decree is passed, shall hand over possession 
to a third party to defeat the decree-holder’s right and entitlement to enjoy 
the fruits of litigation and this may continue indeﬁ nitely and no decree for 
immovable property can be executed. 
16. In the result, the appeals succeed and are allowed. Accordingly, 
the judgment and orders dated 07.04.2016 and 04.11.2016 passed in C.R.P 
No. 152 of 2012 and R.P No. 487 of 2016 respectively by the High Court of 
Delhi and the order of the Executing Court dated 11.09.2012 are set aside and 
the Executing Court is directed to execute the decree by eﬀ ecting delivery 
of physical vacant possession to the appellant/decree-holder in accordance 
with the provisions contained in Order XXI CPC. The parties shall bear 
their own costs.  
Headnotes prepared by : 
Appeals allowed.
Nidhi Jain