TaxTMI 
TaxTMI 
2025 (3) TMI 1573
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....th on account of hierarchy of courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breathes fear of receiving the fruits of that justice for which he has been aspiring to receive. To reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain 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 the hierarchy of courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the lower courts under the scrutiny 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 seeker in his journey to justice. But this obviously is one of the cause....
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....J") one allowing the application filed by the respondent Nos. 1 and 2 herein, respectively, under Section 47 of the CPC and rejecting the application filed by the appellants herein seeking amendment in the execution petition. A. FACTUAL MATRIX 5. One Ayyavoo Udayar, the father of the appellants herein entered into an agreement of sale dated 30.06.1980 with Ramanujan and Jagadeesan, the respondent nos. 3 and 4 herein (the "vendors") respectively, whereby the respondents agreed to sell the property under dispute (the "suit property") for Rs. 67,000/-. An earnest money of Rs. 10,000/- was paid by Ayyavoo Udayar while entering the agreement of sale. It was agreed between the parties that the balance of Rs. 57,000/- would be paid on or before 15.11.1980 upon receipt of which, the vendors would execute the sale deed. 6. On 15.11.1980, Ayyavoo Udayar issued a telegram to the vendors requesting that they should receive the balance consideration and execute the sale deed. The vendors sent a reply stating that they would execute the sale deed on 20.11.1980, however, no sale deed was executed even on the said date. Since the vendors did not come forward to execute the sale deed despi....
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....vered to the plaintiff after completing the registration formalities. But the defendants 1 and 2 would not heed to the words of the plaintiff nor to that of the mediators like Muthusami Udayar son of Arunachala Udayar of Masinaickampatti and Chinnasami Udayar of Ayothiapattinam. On the other hand the 1st defendant seems to have inducted the defendants 2 and 3 into the suit properties to make it appear that they (defendants 3 and 4) are in possession of the suit properties. The defendants 3 and 4 are the 1st defendant's sister's sons. They are obliged to the defendants 1 and 2. All the defendants are now, for the past one week giving out in the village by they would not on any account allow the plaintiff to have the sale deed executed in his favour or to enter into the suit property by any means. Hence the plaintiff is constrained to file this suit for specific performance. The defendants 3 and 4 are added in order to avoid any possible obstruction by them and to enable the plaintiff to take delivery of possession without multiplicity of proceedings." (Emphasis supplied) 8. The Additional Subordinate Judge, Salem on 02.04.1986 decreed the original suit as prayed for an....
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....t came to be disposed on 20.01.2006, the order of the ASJ dated 03.12.2004 was set aside. 13. Consequent to the order of the High Court dated 20.01.2006, the proceedings in respect of the R.E.P. No. 237 of 2004 were restored and the appellants withdrew the R.E.P. No. 244 of 2005. 14. Thereafter, the vendors filed Civil Revision Petition (NPD) No. 1865 of 2007 before the High Court challenging the order of the ASJ accepting the deposit of Rs. 67,000/- made by the appellants on 19.04.2004 on the ground that such deposit was not made within a period of thirty days as per the order dated 19.03.2004 of the High Court. This revision petition came to be dismissed by the High Court on 10.07.2007 and it was observed that the appellants herein were late by one day in depositing the amount of Rs. 67,000/- because 18.04.2004 was the last day to deposit the amount and it was a holiday. Since the appellants had deposited the amount on the next working day, the deposit was considered as well within time. 15. On 17.08.2007, the Executing Court executed a registered sale deed in favour of the appellants on behalf of all the respondents to the original suit including the respondent Nos. 1 a....
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....lants. 19. After filing the execution application, the respondent Nos. 1 and 2 herein filed a petition before the Tehsildar, Vazhapadi for inclusion of their names in the cultivation account for the suit property retrospectively from 1974 submitting that they were in possession of the same since 1967. The series of orders delivered in this regard are detailed below: a) The Tehsildar, Vazhapadi vide order dated 18.10.2008 held that the respondent Nos. 1 and 2 herein were in possession of the suit property and ordered that their names be entered in the cultivation account of the same. The Tehsildar, however, gave no finding regarding inclusion of the respondents' names retrospectively from 1974. b) The respondent Nos. 1 and 2 herein, aggrieved by the order dated 18.10.2008, filed W.P. No. 5032/09 before the Telsildar, Vazhapadi to get their names registered in the cultivation account in respect of the suit property from 1974 onwards. While the hearing of the writ petition was going on, the vendors, whose names were registered as pattadharars for the suit property, gave a statement that the respondent Nos. 1 and 2 had been in possession of the said land for a long....
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....dependent witnesses to establish that the respondent Nos. 1 and 2 were not in possession of the suit property. c) Further, in both the execution petitions namely R.E.P. No. 237 of 2004 and R.E.P. No. 244 of 2005, the appellants did not seek any relief for delivery of possession from the respondent Nos. 1 and 2. d) The appellants can take over possession only after taking appropriate legal steps/proceedings. 22. Aggrieved by the order of the ASJ, the appellants filed Civil Revision Petition (NPD) No. 4311 of 2011 (hereinafter referred to as the "first revision petition") before the High Court. The grounds taken in the said petition are summarized below: a) The order of the ASJ dated 12.08.2011 rejecting the appellants' prayer on the ground that no notice of execution of the sale deed by the court was served to the respondent Nos. 1 and 2, was erroneous since notice to show cause against execution is necessary only in certain circumstances as laid down in Order XXI Rule 22 of the CPC. It was submitted that no notice was mandatory in the case on hand as the execution petition was filed by the decree-holder within two years of the confirmation of the decre....
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....ecution petition asking for execution of the sale deed on behalf of the vendors and delivery of possession against all the respondents. The vendors in their counter-statement alleged that the said execution application was preferred by the appellants with a mala fide intention and seeking amendment to the array of parties against whom execution was prayed for, after a lapse of seven and a half years was legally untenable. 24. The appellants, on 10.04.2013, sought for one another amendment by way of R.E.A. No. 145 of 2013 seeking to disclose about the other execution petitions filed after R.E.P. No. 237 of 2004. The vendors filed a counter- statement to the same alleging that said amendment application was filed with an ulterior motive of delaying the execution proceedings. The respondent Nos. 1 and 2 herein also filed a counter submitting that they were not parties to the R.E.P. No. 237 of 2004 as they were not issued notice regarding the same. They came into knowledge of the execution proceedings only after the court Amin visited the property to deliver possession of the property to the appellants. 25. The ASJ vide two separate orders dated 24.04.2015 allowed the execution p....
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....Court could be said to have committed a serious error in passing the impugned order for the following reasons: a. The appellants had not filed any appeal or revision against the order of the ASJ allowing the application under Section 47 of the CPC, till 2015. However, the appellants had challenged the said order by preferring the first revision petition as early as 31.10.2011 and the same was decided by the High Court by way of the impugned order. b. The appellants had filed the execution petition on 19.07.2004 that is, after four months of confirmation of the decree in the original suit by the High Court. The learned counsel invited our attention to the provision in Order 21 Rule 22 of the CPC, which stipulates that a notice to show cause against execution is required to be served compulsorily only if the application for such execution is made, inter alia, more than two years after the date of the decree. He submitted that in view of the said provision, no separate notice was required to be issued to the judgment debtors in the case on hand as the execution petition was filed well within the time period of two years. c. The contention of the respondent N....
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....ng on behalf of the respondent Nos. 1 and 2 addressed himself on the following points: i. The decree travelled beyond the judgment, ii. No effective proceedings were instituted by the appellants against the respondent Nos. 1 and 2 herein, iii. The respondent Nos. 1 and 2 have a lawful title and have been in lawful and uninterrupted possession of the suit properties since 1967, iv. The appellants had not instituted any suit for recovery of possession, and v. The civil courts inherently lacked jurisdiction to decide the question of possession as the respondent Nos. 1 and 2 were cultivating tenants. 30. The learned counsel submitted that the original suit was for specific performance of the agreement of sale of the suit property and respondent Nos. 1 and 2 were not parties to the said agreement. They were impleaded in the original suit stating that they were in possession of the suit property. Even though the appellants were aware of the said fact, yet they did not pray for dispossession of the respondent Nos. 1 and 2 and no pleadings were made against them. 31. Further, the trial court's order dated 02.04.1986, having considered the ....
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....nnot go behind the decree or beyond the decree. But while executing a decree for specific performance, the court, in case of any ambiguity, has necessarily to construe the decree so as to give effect to the intention of the parties." 34. As regards the question whether the appellants had instituted an effective proceeding against the respondent Nos. 1 and 2, the learned counsel submitted that: a. The respondents were not a necessary party to the original suit for specific performance as they were neither parties to the agreement of sale nor lis pendens purchasers of the suit properties. The appellants sought no relief of possession against the respondent Nos. 1 and 2 in the original suit despite impleading them as parties because they were in actual physical possession of the suit properties. b. In R.E.P. 237 of 2004, the appellants sought relief only against the vendors and not against the respondent Nos. 1 and 2 despite impleading them in the execution petition. Further, no notice was served to the said respondents and as a result, the respondents were not afforded an opportunity to be heard by the Executing Court. c. The respondent Nos. 1 and 2 were....
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....s them has a better legal right in the form of ownership or entitlement to possession." c. Further, the appellants, being the decree holders, failed to file an application to seek recovery of possession under Order XXI Rule 97, after having been obstructed by the respondents. Such process could not have been circumvented by the appellants by seeking an amendment to their execution petition, especially after the respondents' Section 47 application had already been allowed by the Executing Court. 37. Mr. Jain further submitted that the respondent Nos. 1 and 2 are cultivating tenants in continuous possession of the suit property and accordingly are protected under Sections 3 and 6 of the Tamil Nadu Cultivating Tenants' Protection Act, 1955 respectively which imposes a bar on the jurisdiction of the civil courts in matters of eviction of cultivating tenants. 38. The learned counsel relied on this Court's decision in Sunder Dass v. Ram Prakash reported in (1977) 2 SCC 662 to submit that a challenge to the validity of a decree can be set up even at the stage of execution proceedings, in cases where the civil court inherently lacks jurisdiction. The relevant portion of the ....
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....ng tenants? (ii) Whether the respondent Nos. 1 and 2 are entitled to the protection of the Tamil Nadu Cultivating Tenants' Protection Act, 1955 and could the Executing Court have decided the question of validity of the decree on this ground? E. ANALYSIS (i) Relevant statutory provisions 41. Before adverting to the rival submissions canvassed on either side, we must refer to few relevant provisions of the CPC, which read thus :- Section 47 reads as follows: "47. Questions to be determined by the Court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation 1.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parti....
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....mination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),- (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. (2) Where, upon such determination, 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 or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, 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 or on his behalf, to be detained in the civil prison for a term which may extend to thirty days." Order XXI, Rule 99 reads as follows: "99. Dispossession by decree-ho....
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....o right, title or interest in the property arising between the parties. 43. This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal reported in (1997) 3 SCC 697, has held that :- "4. (...) A conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the following picture: (1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35, then the decree-holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 sub-rule (2) and the decree-....
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.... difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI Rule 99. Order XXI Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI Rule 99 on t....
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....t to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI Rules 97 and 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. 6.(...) A reading of Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder t....
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....uting proceedings. We find 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, includes tenants or other persons claiming right on their own including a stranger. 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 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 pos....
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....would be shrunk to the limited question whether he is such 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. --xxx-- 14. It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination. If the Court deems it necessary." (Emphasis supplied) 46. This Court, in NSS Narayan Sarma & Ors. v. Goldstone Exports (P) Ltd. & Ors., reported in (2002) 1 SCC 662, has held as under:- "15. Provision is....
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....ssession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. --xxx-- 19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree." (Emphasis supplied) 47. In Samir Singh and Anr. vs. Abdul Rab, reported in (2015) 1 SCC 379, this Court, after considering its previous judgment in Brahmadeo Chaudhary (supra) has held thus:- ....
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....tle from the judgment debtor or independent right, title or interest in the decretal property. Whereas, Rule 99 gives right to a third party claiming right, title or interest in the property to seek restoration of the decretal property. Suffice it to say that the remedy under Rule 99 is available when a person claiming right to the decretal property is already dispossessed. 50. Rule 101 enjoins upon the executing Court dealing with application under Rule 97 or 99 to determine all questions including questions relating to right, title or interest in the property, arising between the parties and relevant to the adjudication of the application. As held by this Court in Silverline Forum (supra) the question that the executing court is obliged to determine under Rule 101 must possess to adjuncts viz. (i) that such question should have legally arisen between the parties and (ii) such question must be relevant for consideration and determination between the parties. Upon adjudication of such questions, the executing court is under an obligation to pass appropriate order as contemplated under Rule 98 or 100, as the case may be. When eventually such order is passed, it would be treated a....
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....XI, Rule 97 is made, then its determination will be under Rule 101 and then Rule 103 further provides that where any application has been adjudicated upon under Rules 98 or 100, the order made thereon shall have the same force and will be subject to the same conditions as to an appeal or otherwise as if it were a decree. Under Section 47 of the CPC all questions relating to the execution, discharge or satisfaction of the decree, have to be determined by the executing court whereas under Rule 101 all questions including question relating to right, title or interest in the property arising between the parties to the proceedings have to be determined by the executing court. Section 47 is a general provision whereas Order XXI Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals with executions of all kinds of decrees whereas Order XXI, Rules 97 and 101 deal only with execution of decree for possession. Apart from that, earlier, i.e., prior to the amendment, every order falling under Section 47 was appealable (as the terms 'decree" included the order under Section 47 of the CPC) whereas now only certain orders as provided for under Order XXI have been made appeala....
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....s case it has ruled the roost. 7. In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25-5-1979 was made, the Court should have treated it to be one filed under Order 21, Rule 97(1) CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21 Rules 35(3) and 97(2) and Order 21, Rules 101 and 102 of CPC." (Emphasis supplied) 55. Before we proceed further, we must look into some part of the reasonings of the Executing Court as well as the High Court. 56. The Executing Court in its order dated 12.08.2011 observed as under: "1. The petition is filed by the petitioners against the respondents under Section 47 CPC stating that they are in possession of the suit properties; that their objections should be enquired into....
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....Ramanujam and others for permanent injunction. In the said suit, Ramanujam objected the claim of the petitioners and the suit was dismissed on 29.7.1982. As the petitioners were continuously troubling the father of the respondents, they were added as defendants 3 and 4 in the suit O.S.No.514/83. The defendants 1 and 2 filed an appeal A.S.No.469/86 before the High Court adding the petitioners also as parties. After the death of Ayyavu Udayar, these respondents were added as respondents 4 to 11 therein. On 29.9.2000, the column 6 of the decree in O.S.No.514/83 was removed and the appeal was dismissed. During the pendency of the appeal, the 1st respondent and his son entered into an agreement with Arivazhagan to sell the property. Against the dismissal of the appeal, the defendants 1 and 2 filed LP.A. No.62/2001 against the petitioners and the respondents. As per the Order in LPA, the respondents deposited a further sum of Rs.67,000/- before the Court on 19.4.04. During the pendency of E.P.No.237/04, the defendants 1 & 2 filed SLP No.18184/2004 before the Supreme Court against the petitioners and the legal heirs of Ayyavu Udayar. when a Memo was filed before this Court about ....
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.....237 /04 and E.P.No.244/05. On perusal of the court records, it is seen that the respondents filed E.P.No.237 /04 in 2004, got the sale deed and for delivery of possession of property made prayer only against Ramanujam and Jagadeesan. and that the petitioners are simply added as parties therein. When Ramanujam and Jagadeesan filed a Memo before this Court that SLP is pending, E.P.No.237 /04 was dismissed by this court. Challenging that order, the respondents filed Revision Petition for restoration of E.P.No.237 /04. In the meantime, the respondents filed the second execution petition E.P.No.244/05 against Ramanujam and Jagadeesan. A prayer which is made in E.P.No.237 /04 is also made in the second execution petition. In both the petitions, even though the names of Rajamani and Ethirajulu are stated, the prayer is made only against Ramanujam and Jagadeesan alone. The Senior Counsel appearing for the respondents has also accepted the same. A perusal of the records also show that it is true that no relief is claimed against the petitioners in column 9 of the E.P. and that prayer is made in column 9 only against Ramanujam and Jagadeesan as accepted by the Senior Advocate. The ....
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....so admitted that when delivery was to be taken, the petitioners were m possession and that prevented the effecting of delivery, the petitioners stated that they will set fire to themselves by pouring kerosene. On the side of the respondents, no favourable answers were obtained by addressing detailed questions to PW-1. On perusal of foe records, it is seen that the petitioners were added in all foe proceedings only nominally and no specific prayer is made in the execution petition against the petitioners. While cross-examining PW 1 on the side of the respondents, suggestion was made that he is giving false evidence only to prevent the effecting of delivery and to drag on the proceedings and the PW-1 has denied the same. In RW 1's evidence, it is seen that the High Court has removed the names of Rajamani and Ethirajulu and as Rajamani and Ethirajulu are nominally added, it will not affect their rights. The judgement in O.S.No.514/83 win not bind the petitioners. In E.P. also, no Bhatta was paid for sending notice to the petitioners. In E.P.No.237/04 and E.P.No.214/05, relief is claimed in column 9 only against Ramanujam and Jagadeesan. On the side of the respondents, it is p....
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.... to the decree holders. Only taking into consideration of the same, the learned First Additional Subordinate Judge, Salem, had allowed the REA No. 163 of 2011 vi de order dated 12.08.2011, by holding that since, no notice is served to respondents 3 and 4/ defendants, the Court cannot pass any order directing the respondents 3 and 4/ defendants, to deliver possession and thereby their right of possession, is no way effected. Therefore, this Court is of the considered view that the said proposition taken by the court below do not have any material irregularity. 26. However, it is the duty of the Court below to dismiss the REP No.237 of 2004, after allowing the application filed in REA No. 163 of 2011 (47 CPC). But the learned First Additional Subordinate Judge, Salem, without following the consequential procedure, allowed the revision petitioners/decree holders to file applications for amending the execution petition. Since the right of the respondents 3 and 4/ defendants are determined in REA No. 163 of 2011, the question of subsequent amendment in the same EP (REP No.237 of 2004) in Column No. 10 virtually does not arise on the date. So far as respondents 3 and 4 are conce....
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....e of specific performance and possession of the suit property could be said to be bona fide and genuine. In other words, the consideration at the end of both the courts should have been whether the respondent nos. 1 and 2 herein being nephews of the original venders are acting in collusion with each other only with a view to frustrate and defeat the decree. 60. We are of the view that the Courts below failed to consider the following: a. The respondent Nos. 1 and 2 respectively are nephews of the vendors and claim to have come into possession of the suit property in the year 1983 when the suit was first instituted by the appellants before the ASJ. They were impleaded in the original suit as the defendant Nos. 3 and 4 respectively. b. The decree in favour of the appellants granting specific performance with possession was affirmed by the High Court on 19.03.2004 and the SLP against the order of the High Court stood dismissed on 20.01.2006. The respondent Nos. 1 and 2 respectively chose not to contest the original suit before the ASJ. They did not appear even before the High Court and this Court in the appeals filed by the vendors (judgment debtors). c. ....
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....XI Rule 101 implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can be determined by an executing court under Section 47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670, wherein it has been held that while determining a question under Section 47, an executing court cannot go behind the decree and question the correctness of the same. 63. What flows from the position of law, as afore stated, is that the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has held that the benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation ....
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....f suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go." (Emphasis supplied) 64. In the present case, the appellants have pleaded in their plaint that the respondent Nos. 1 and 2 respectively were impleaded therein as defendants as they were in possession of the suit property. However, the respondent Nos. 1 and 2 chose not to contest the suit despite being aware of the prayer of the appellant for delivery of possession of the suit properties. They could have filed a joint written statement stating that they are cultivating tenants at the stage of the original suit itself, but rather raised the said issue in the form of objections at the stage of execution. 65. Furthermore, the respondent Nos. 1 and 2 failed to produce any documentary evidence as regards their claim of being cultivating tenants, even at the stage of their Section 47 application. Instead, they filed for registration of their names in the cultivation account of the suit property only in 2008 and prayed for retrospective inclusion of their names from 1974. While the Reve....
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....self appears to have been obtained in collusion with the vendors who at the time of giving "no objection" had ceased to be the owners of the suit property. 70. In such circumstances referred to above, we find it extremely difficult to accept that the respondent Nos. 1 and 2 are bona fide cultivating tenants of the suit property and thus, the determination of the question of them being in possession of the same must necessarily go against them and in favour of the appellants. Therefore, there is no question of deciding the validity of the decree on the ground of being a nullity due to lack of jurisdiction of the civil court to evict cultivating tenants. 71. In such circumstances referred to above, we have reached the conclusion that the High Court committed an egregious error in passing the impugned order. We must now ensure that the appellants are able to reap the fruits of the decree. We are also of the view that the rejection by the High Court of the amendments to the execution petition filed by the appellants, was erroneous and deserves to be set aside. 72. Before we close this matter, we firmly believe that we should say something as regards the long and inordinate del....
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....urisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant. 42.9. The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 42.10. The court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to sub-rule (2) of Rule 98 of Order 21 as well as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section 60 CPC the term "... in name of the judgment-debtor or by another person in trust for him or on his behalf" should be read libe....