High Court
Legal Reasoning
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 6721 OF 2023WITHCA/1931/2024 IN WP/6721/2023WITHCA/11990/2023 IN WP/6721/20231.Adarsh Education Society Hingoli,Through it President,Kamal Kishor s/o Motilalji Kabra,Age 79 years, Occu. Business,R/o Kasarwada, Hingoli,Tq. And Dist. Hingoli.2.Adarsh Education Society Hingoli,Through its Secretary, Ramchandra s/o Bhalbhadra Kayal,Age 78 years, Occu. Business,R/o Bhat Colony, Hingoli,Tq. And Dist. Hingoi....Petitioner(Original Defendants)~ versus ~1.Dr. Shakuntaladevi Venuprasad Bagadiya,Age Major, Occu. Medical Practitioner,R/o Kalmanuri, Dist. Hingoli.2.Aparna Anil Ruiya,Age Major, Occu. Household,R/o Nagpur, Tq. And Dist. Nagpur.3.Nitinkumar Venuprasad Bagadiya,Age Major, Occu. Engineer,R/o Kalamnuri, Dist. Hingoli.4.Komal Venuprasad Bagadiya,Age Major, Occu. Education,R/o Kalamnuri, Dist,. Hingoli.All No.1 to 4 At present Residing AtLabh Chamber, Station Road,Aurangabad.5.Dr. Banvarilal Madhavlal Bagadia,Age Major, Occu. Medical Practitioner,Shivaji Nagar, Hingoli, Tq. Hingoli.Dist. Hingoli.6.Suresh Madhavlal Bagadia,Page 1 of 13 Writ Petition No. 6721 / 2023 JudgmentAge Major, Occu. Agri.,R/o Hingoli Tq. Dist. Hingoli.(Original Plaintiff)7.Purshottamdas Madhavlal Bagadiya,Age Major, Occu. Business,R/o Hingoli, Tq. And Dist. Hingoli.(Original Defendant) ...Respondents ________________________________________APPEARANCE : Advocate for the Petitioners : Mr. H. V. PatilAdvocate for Respondents No.1 to 7: Mr. P. R. Katneshwarkar________________________________________CORAM :ARUN R. PEDNEKER, J.Dated : 08/05/2024JUDGMENT :1.Rule. Rule made returnable. With consent of the parties, heardfinally.2. By the present petition, the petitioners are challenging the orderdated 23/09/2019, passed by 2nd Joint Civil Judge,Junior Division, Hingoli,below Exhibit 66, in Regular Darkhast No.98/2012, whereby the applicationfiled by the Judgment Debtor to adduce evidence by calling TalukaInspector of Land Records to demonstrate that portion of suit land in thedecree and part of the adjacent land of the Judgment Debtor areoverlapping as some new facts have come to the knowledge of theJudgment Debtor during the measurement of the land of the JudgmentDebtor, and there is overlapping of Survey No.19, 20 and Survey No.8, 9Page 2 of 13 Writ Petition No. 6721 / 2023 Judgmentand 12 at Ganeshwadi over each other.3.Facts giving rise to the present petition can be briefly summarizedas under : -That the respondents No.1 to 6 are the Decree Holders in RegularCivil Suit No.224/1983 whereas the petitioners are the Judgment Debtors.The suit is filed for removal of encroachment and mesne profit. The saidsuit was decreed by order dated 17/08/2000 by the Trial Court by holdingthat the defendants / petitioners herein have encroached upon 93 R land ofthe plaintiffs/ respondents herein. The said Judgment is confirmed up tillthe High Court in the second appeal.4.The petitioners have also filed Regular civil Suit No.291 of 2000 fordeclaration of ownership and for perpetual injunction wherein therespondents Decree Holders are also defendants and the said suit is alsodecreed which has attained finality.5.It is the case of the petitioners that the land in Survey No.9 ofvillage Ganeshwadi and land in Survey No.19, 20 and 22 of village Hingoliare adjacent to each other. The said two lands are on village boundaries.6.After the decree was confirmed in Regular Civil Suit No.224/1983,Regular Darkhast No.98/2012 is filed for execution and prayed to deliverthe possession of 93 R land from the petitioners. The petitioners filed anPage 3 of 13 Writ Petition No. 6721 / 2023 Judgmentapplication at Exhibit 21 seeking directions against the Decree Holder i.e.respondents to deposit the amount for joint measurement. The saidapplication was allowed. However, it is the case of the petitioner that themeasurement so carried out was incorrect. Accordingly, possessionwarrant was issued by the Trial Court.7.The petitioners, thereafter, filed application at Exhibit 53 before theExecuting Court under Section 47 as well as Order 21 Rule 97 to 101 of theCode of Civil Procedure, in which it is specifically contended that there isoverlapping of properties and that there is no measurement of theproperty by the Judgment Debtor and Decree Holder and without jointmeasurement, the petitioners are shown as encroachers. It is contendedthat unless there is proper measurement and actual measurementascertained, the decree for possession cannot be executed. The saidapplication was rejected by order dated 15/11/2019. It is observed by theTrial Court that the Executing Court has no power to go beyond decree.8.The petitioners again moved another application below Exhibit 64 tocall for original file of measurement carried out in which there is clearfinding of overlapping between the lands. The said application was alsorejected by order dated 14/08/2019. The petitioners, thereafter, movedanother application below Exhibit 66 requesting to permit the petitioners tolead evidence. The petitioner contended that the petitioners have alreadyPage 4 of 13 Writ Petition No. 6721 / 2023 Judgmentrecorded their objection to the measurement, specifically there isoverlapping of Survey No.19, 20 and Survey No.8, 9, 12 of Ganeshwadi.The petitioners have reported their objection under Order 21 Rule 97 to101 of the Code of Civil Procedure. The said application is opposed by theDecree Holder on the ground that the Executing Court cannot go behindthe decree between the parties or their representatives, it must take thedecree according to its tenure, and cannot entertain any objection that thedecree was incorrect in law or on facts, therefore, requested for rejectionof the application. 9.The Executing Court by order dated 23/09/2019 was pleased toreject the application filed below Exhibit 66. It is observed by the TrialCourt that the objection is not maintainable as already in the matterRegular Civil Suit No.224/1983, the Court Commissioner was appointedand he has prepared map (Exhibit 58) and he has been duly cross-examined by the Judgment Debtor, and thereafter, the decree is passed.The report of the Court Commissioner is duly proved therefore, there is noquestion of leading evidence, and so, the application is rejected. Againstthe said impugned order dated 23/09/2019, the present writ petition isfiled.10.While issuing notice, this Court by order dated 21/06/2023 observedas under : -Page 5 of 13 Writ Petition No. 6721 / 2023 Judgment“4.Learned Advocate for the petitioner fairly submits thatduring the pendency of this petition, the authorities havemeasured the land and handed over the possession to therespondents. In that view of the matter, the respondents aredirected not to create any third party interest in the propertyin question.”11.The learned Advocate for the petitioners submits that the petitionerhas challenged the impugned order on the ground that there is grossillegality in rejecting the application of the petitioner and that the Courtfailed to notice that there is overlapping of the land between thepetitioners and respondents. Unless there is proper report ofencroachment, the decree for recovery of encroachment cannot beexecuted.12.It is further contended that the measurement map Exhibit 58 alongwith report at Exhibit 59 in Regular Civil Suit No.224/1983 was preparedlong back and subsequent changes are not considered on the basis ofobjection filed under Order 21 Rule 97 to 101, and in such circumstances,the Executing Court should permit the petitioners to lead evidence.13.Per contra, the learned Advocate appearing for the respondentsubmits that the successive applications are filed to defeat the right of theDecree Holders.14.Having heard the learned Advocate for the parties. It is required toPage 6 of 13 Writ Petition No. 6721 / 2023 Judgmentbe noted that the Judgment Debtors have suffered a decree wherein theCivil Court in Regular civil Suit No.224/1983 has held that the defendants/petitioners herein are encrochers and shall hand over the possession of 93R portion of land in Survey No.9 as shown by letters “E. F. J. I.” in themeasurement map Exhibit 58 within two months from the date ofJudgment by removing the construction at their own costs. Thedefendants in Regular Civil Suit No.224/1983 are held to be encroachers ofthe land of the plaintiffs. The said finding is arrived at after the report ofthe Court Commissioner at Exhibit 58 is taken on record and the CourtCommissioner was examined. The Judgment Debtors/petitioners hascontested the suit, as such, there is no question of reopening the sameissues as was decided by the Civil Court. As regards the suit filed by thepetitioners are concerned bearing Regular Civil Suit No.291/2000, thesame pertains to different property i.e. Survey No.19 at Hingoliadmeasuring 5 H 17 R. The Executing Court while rejecting Exhibit 53 hasobserved at paragraph no.11 as under : -“11.From the record, it reveals that, the D.H. has filed theinstant executing proceeding regarding the decree passed inR.C.S.No.224/1983. In the original suit map vide Exhibit 58was the part and parcel of the suit. The said map wasprepared by T.I.L.R. Hingoli and it was duly proved by theD.H. in the trial of original suit. In the original suit the CourtCommissioner has been duly appointed and after visiting thespot he has submitted it’s report accordingly. From thePage 7 of 13 Writ Petition No. 6721 / 2023 Judgmentrecord, it also reveals that Court Commissioner has been dulycross-examined by the J.D. in original suit. As per thejudgment in R.C.S.No.224/1983 this Court already held thatthe map and report filed by Court Commissioner is dulyproved and the map vide Exhibit 58 is part and parcel of thesuit. It means already all the issues regarding encroachmentwere duly decided and determined finally by this Court.”15.The learned Advocate for the petitioners relied upon the Judgment ofHon’ble Supreme Court in Jini Dhanrajgir and Anr. vs. Shibu Mathewand Anr. Etc., (Civil Appeal Nos.3758 – 3796 2023) [Arising out ofSLP (C) Nos.28258-282962018], paragraph 17 reads as under : -“17.Section 47 of the CPC, being one of the most importantprovisions relating to execution of decrees, mandates that thecourt executing the decree shall determine all questionsarising between the parties to the suit or their representativesin relation to the execution, discharge, or satisfaction of thedecree and that such questions may not be adjudicated in aseparate suit. What is intended by conferring exclusivejurisdiction on the executing court is to prevent needless andunnecessary litigation and to achieve speedy disposal of thequestions arising for discussion in relation to the execution,discharge or satisfaction of the decree. Should there be anyresistance offered or obstruction raised impeding dueexecution of a decree made by a court of competentjurisdiction, the provisions of Rules 97, 101 and 98 of OrderXXI enable the executing court to adjudicate the inter seclaims of the decree-older and the third parties in thePage 8 of 13 Writ Petition No. 6721 / 2023 Judgmentexecution proceedings themselves to avoid prolongation oflitigation by driving the parties to institute independent suits.No wonder, the provisions contained in Rules 97 to 106 ofOrder XXI of the CPC under the sub-heading “Resistance todelivery of possession to decree-holder or purchaser” havebeen held by this Court to be a complete code in itself inBrahmdeo Chaudhary (supra) as well as in a decision ofrecent origin in Asgar vs. Mohan Verma. In the latterdecision, it has been noted that Rules 97 to 103 of Order XXIprovide the sole remedy both to parties to a suit as well as toa stranger to the decree put to execution.”16.In the instant case the objections are raised by the Judgment Debtorwho has suffered the decree, and not by a third party who hasindependent right over the suit property and resist the execution. Theobjection thus raised has to be summarily rejected. 17.The learned Advocate for the petitioner also relied on the Judgmentof Hon’ble Supreme Court in Brahmdeo Chaudhary vs. RishikeshPrasad Jaiswal and Another, reported in (1997) 3 Supreme CourtCases 694. However, it is to be noticed that the obstruction therein alsoby a third party and the executing court was held bound to decide theobjection in the execution proceedings. Paragraph No.9 of the Judgmentreads as under : -“9.In short the aforesaid statutory provisions of Order 21lay down a complete code for resolving all disputes pertainingPage 9 of 13 Writ Petition No. 6721 / 2023 Judgmentto execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meetwith rough weather. Once resistance is offered by a purportedstranger to the decree and which comes to be noted by theExecuting Court as well as by the decree-holder the remedyavailable to the decree-holder against such an obstructionistin only under Order 21, Rule 97, sub-rule (1) and he cannotbypass such obstruction and insist on reissuance of warrantfor possession under Order 21, Rule 35 with the help of policeforce, as that course would amount to bypassing andcircumventing the procedure laid down under Order 21, Rule97 in connection with removal of obstruction of purportedstrangers to the decree. Once such an obstruction is on therecord of the Executing Court it is difficult to appreciate howthe Executing Court can tell such obstructionist that he mustfirst lose possession and then only his remedy is to move anapplication under Order 21, Rule 99 CPC and pray forrestoration of possession. The High Court by the impugnedorder and judgment has taken the view that the only remedyavailable to a stranger to the decree who claims anyindependent right, title or interest in the decretal property isto go by Order 21, Rule 99. This view of the High Court on theaforesaid statutory scheme is clearly unsustainable. It is easyto visualise that a stranger to the decree who claims anindependent right, title and interest in the decretal propertycan offer his resistance before getting actually dispossessed.He can equally agitate his grievance and claim foradjudication of his independent right, title and interest in thedecretal property even after losing possession as per OrderPage 10 of 13 Writ Petition No. 6721 / 2023 Judgment21, Rule 99. Order 21 Rule 97 deals with a stage which isprior to the actual execution of the decree for possessionwherein the grievance of the obstructionist can be adjudicatedupon before actual delivery of possession to the decree-holder. While Order 21 Rule 99 on the other hand deals withthe subsequent stage in the execution proceedings where astranger claiming any right, title and interest in the decretalproperty might have got actually dispossessed and claimsrestoration of possession on adjudication of his independentright, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with theright, title and interest of a stranger to the decree are clearlycontemplated by the aforesaid scheme of Order 21 and it isnot as if that such a stranger to the decree can come in thepicture only at the final stage after losing the possession andnot before it if he is vigilant enough to raise his objection andobstruction before the warrant for possession gets actuallyexecuted against him. With respect the High Court has totallyignored the scheme of Order 21 Rule 97 in this connection bytaking the view that only remedy of such stranger to thedecree lies under Order 21 Rule 99 and he has no locus standito get adjudication of his claim prior to the actual delivery ofpossession to the decree-holder in the execution proceedings.The view taken by the High Court in this connection alsoresults in patent breach of principles of natural justice as theobstructionist, who alleges to have any independent right,title and interest in the decretal property and who isadmittedly not a party to the decree even though making agrievance right in time before the warrant for execution isPage 11 of 13 Writ Petition No. 6721 / 2023 Judgmentactually executed, would be told off the gates and hisgrievance would not be considered or heard or merits and hewould be thrown off lock, stock and barrel by use of policeforce by the decree-holder. That would obviously result inirreparable injury to such obstructionist whose grievancewould go overboard without being considered on merits andsuch obstructionist would be condemned totally unheard.Such an order of the Executing Court, therefore, would failalso on the ground of non- compliance with basic principles ofnatural justice. On the contrary the statutory schemeenvisaged by Order 21 Rule 97, CPC as discussed earlierclearly guards against such a pitfall and provides a statutoryremedy both to the decree- holder as well as to theobstructionist to have their respective say in the matter andto get proper adjudication before the Executing Court and it isthat adjudication which subject to the hierarchy of appealswould remain binding between the parties to suchproceedings and separate suit would be barred with a view toseeing that multiplicity of proceedings and parallelproceedings are avoided and the gamut laid down by Order21 Rules 97 and 103 would remain a complete code and thesole remedy for the concerned parties to have theirgrievances once and for all finally resolved in executionproceedings themselves.”The facts of the instant case are different, therefore the aboveJudgment is also not applicable here. 18.The Judgments cited as above are not applicable to the facts of thePage 12 of 13
Decision
Writ Petition No. 6721 / 2023 Judgmentinstant case, the same does not come to the aid of the petitioners aspetitioner is not the third party claiming independent right. The JudgmentDebtor is not a third party and he cannot be permitted to lead freshevidence on the aspect of encroachment, having suffered a decree.19.Thus, the Trial Court has rightly rejected the application at Exhibit66, and the present proceeding are only tactics to delay the execution ofthe decree. Accordingly the writ petition is dismissed with cost ofRs.25,000/- to be paid to the respondents No.1 to 7.20.Rule is discharged. Pending applications stand disposed of. ( ARUN R. PEDNEKER, J. )After Pronouncement of Judgment : -21.At this stage the learned Advocate for the petitioners submits thatthere was interim order operating in favour of the petitioner during thependency of this writ petition and prays for continuation of the interimorder. However, since I have held that the present proceeding are only todelay the execution, the request for continuation of interim relief isrejected.( ARUN R. PEDNEKER, J. )vj gawade/-.Page 13 of 13