ASHAN DEVI & Anr v. PHUL WASI DEVI & Ors.

The decree holder filed an appeal before High Court against the order of the executing court. The High Court allowed the appeal holding that the objectors are not 'actually and physically dispossessed' as required under Order XXI Rule 99 CPC and hence the application by the objectors is not maintainable. The High Court further held that the executing court cannot decide the competing claims of the parties in execution proceedings and 820 AS HAN DEVI v. PHULW ASI DEVI 821 observed that the objectors may file a separate suit for claiming their rights. A Hence the appeal by the objectors. The decree holder filed a special Leave Petition challenging the direction of the High Court giving liberty to the objectors to file a separate suit before trial court. The appellant-objectors contended that they were in possession of the suit property under registered sale deeds and their names have also been B mutated in the Municipality records; and that the delivery in possession of the suit properties in execution of decree of specific performance to the decree holder was clearly a case of 'dispossession' within the meaning of Order XXI Rule99CPC. Allowing the appeal, dismissing the SLP and remanding the matter to C the High Court, the Court HELD: 1.1. In interpreting the provisions of Order XXI Rule 97 CPC and other provisions in the said Order of the Code, the aims and objects for introducing amendment to the Code by CPC (Amendment) Act, 1976 cannot D be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the suit property, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in Order XXI to enable third parties to seek adjudication of their rights in execution proceedings itself with a view to curtail the prolongation of litigation and arrest delay caused in execution of decree. [829-E-F) E

1.2. A third party resisting or obstructing the execution of the decree can also seek adjusdication of his right under Order XXI Rule 97 CPC in the same way as the decree holder. It will be illogical ifthe third party, which complains of actual dispossession because of the delivery of possession in execution to the decree holder, is not allowed to claim adjudication of his F .rights through the executing court. An interpretation of the provision which promotes or fulfills the object of the amended provision~ of the Code curtailing litigation, has to be preferred to the one which frustrates it. The High Court also lost sight of the fact that the property involved was a vacant land and it could have been possessed only by having ownership and control over it. Mere G physical absence of the third party at the time of execution of the decree was not a relevant fact to reject application under Order XXI Rule 99 CPC. If the objectors would have been present at or near the vacant land at the time of execution of a decree and had offered obstruction or resistance to the execution, they would have been entitled to seek adjudication of their rights and claims through the executing court under Order XXI Rule 97. On the H 822 SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R. A same legal position and reasoning, even though the objectors were not in actual and physical possession of the vacant land, but as a result of delivery olf possession of the land through Nazir to the decree holder, lost their rightt and control over the land to put it to their use, they will have to be treated to have been 'dispossessed' within the meaning of Order XXI Rule 99 of th1: Code. Such interpretation would fulfil the aim and object of the amended B provisions of the Code by allowing adjudication of disputes of title betwee111 the decree holder and the third party in the executing court itself withoutt relegating them to an independent litigation. [830-E-F) The High Court, having rejected the objectors' application under Order C XXI Rule 99 and not gone into the contested issues on merits, the order of the High Court is set aside. [830-H- 831-A; E)