TaxTMI 
TaxTMI 
1998 (4) TMI 547
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....ain of the procedural law in the execution proceedings the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of hierarchy of Courts was for a reasonable objective for confering greater satisfaction to the parties that errors, if any, by any of the lower Courts under the scruitiny of a higher Court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seekers in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches and litigation an much as possible. Thus, this has been the cause of anxiety and concern of various authorities, Legislators and Courts. How to eliminate such a long consuming justice? We must confess that we have still to go long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives ....
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....n terms of the decree. For him, it is submitted that a similar objection was taken by the judgment debtor Prem Shanker that only symbolic possession could be given to the decree-holder. The objection was negatived by the trial court, appellate court, and even by the High Court in the second appeal. Hence, the executing court cannot go behind the decree. The appellants case is they were not parties to those proceedings. However, this objection of the decree-holder was rejected in the first round by the Executing Court and the Revisional Court holding that the person resisting viz. the present appellants were not parties to the suit nor there is any decree against them. It seems subsequently, the decree-holder again moved another application in the aforesaid execution case No. 1A of 19970- 81 for delivery of vacant possession. The present appellants also moved an application/objections under order 21, Rule 97 C.P.C. resisting that they cannot be dispossessed in terms of the said decree, as they were not parties to the said suit nor they are deriving any right and title through the Judgement debtor. They claim separate and independent legal right, not affected either by the mortgage o....
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....y a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated brief to his dispossession his only remedy then being under order 21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injuction to protect his possession." The High Court upheld the Executing Court's order following the said Full Bench decision of the M.P. High Court. hence this appeal. The only question raised is, whether the Full Bench decision is correctly decided. In view of this Full Bench decision, objection of the appellant was rejected without considering the points raised on merit or other objections. In order to appreciate the controversy, order 21, Rule 35, order 21, Rule 36 and order 21, Rule 97 are quoted hereunder :- "O. 21. R. 35: Decree for immovable property :- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to who....
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....l summon the party against whom the application is made to appear and answer the same." 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 significant words are by removing any person bound by he 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 fixing 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 99 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 judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decre....
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....ovisions under Order 21, Rules 97 to 101 and 103 were different which are quoted hereunder :- "97.(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction. (2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 98. Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation to be detained in the civil prison for a term which may extend to thirty days. 99. Where the court is sat....
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....a tenant or any person claiming a right in the property, on his own, if resists delivery of possession to the decree-holder the dispute and his claim has to be decided after 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 cases 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 has 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. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under order 21, Rule 97, has to be decided by the Executing court itself. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under rule 100 (old law) and Order 99 the new law covers cases where persons other than judgment-debtor is dispossessed of immovabl....