IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 4538/2019
Decided On: 23.04.2019
Hon’ble Judges/Coram: Dr. Pushpendra Singh Bhati, J.
Citation: AIR 2019 Raj 114
1. The matter comes up on an application (No. 01/2018) seeking to take on record the correct/amended cause title.
2. For the reasons mentioned in the application, the same is allowed and the correct/amended cause title is taken on record. Accordingly, the defect pointed out by the office stands cured.
3. With the consent of learned counsel for the parties, the matter has been heard finally.
4. This writ petition under Article 226/227 of the Constitution of India has been preferred claiming the following reliefs:-
“1. The order impugned dated 02.03.2019 (Annex. 7) passed by learned Civil Judge, Barmer, may kindly be quashed and set aside.
2. The applications filed by the petitioners under Order 14 Rule 1 CPC (Annex. 4) may kindly be allowed as prayed for.
3. Any other appropriate order, which this hon’ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners.
4. Allow cost of the writ petition to the petitioners.”
5. Brief facts, necessary for disposal of the present writ petition are that Bhairu Singh s/o. Hamir Singh, the ancestor of the petitioners, alongwith one Shiran Singh s/o. Bhim Singh had purchased a plot admeasuring 80 x 60 feet in Nehru Nagar, Barmer on 08.12.1983 from the predecessor in title, Kishan Singh s/o. Bijraj Singh and Damar Singh s/o. Sagat Singh.
6. The ancestor of the petitioners filed an application before the City Council, Barmer for regularization of their possession on the aforementioned plot, where against, the deceased respondent (Amari Devi) had raised objections. The City Council, Barmer, upon not finding any valid proof or evidence in the objections so raised by the deceased respondent passed an order dated 31.08.1985 in favour of the ancestor of the petitioners for regularization of the possession.
7. Aggrieved by the aforementioned order, the deceased respondent filed a revision petition No. 113/1985 before the Additional District Collector, Barmer, which was dismissed vide order dated 24.03.1985.
8. Thereafter, on 05.11.1984, the deceased respondent filed a suit No. 31/1984 for possession of the aforementioned plot against Kishan Singh, Damar Singh, Ridmal Singh and others. The said suit was decreed on 22.08.1989.
9. Subsequently, the execution proceeding No. 05/1998 of the decree dated 22.08.1989, which was passed in the original suit No. 31/1984, was initiated by the respondent. As per the pleadings, the fact of initiation of the execution proceeding came to the knowledge of the petitioners, only when the concerned Sale Amin visited the property of the petitioners in the month of December, 2015. Thereafter, the petitioners filed an application under Order 21 Rules 58 & 97 read with Section 151 of the Code of Civil Procedure (CPC) before the learned Civil Judge, Barmer, raising objections to the execution in respect of the property of the petitioners on the strength of a valid patta having been issued in favour of petitioner’s father on 07.09.1989.
10. Vide order dated 09.11.2016, the learned court below has observed that a perusal of the record shows that there is no need to frame issues and take evidence of the parties, and accordingly, the matter was fixed for arguments on 19.11.2016.
11. During pendency of the aforementioned application under Order 21 Rules 58 & 97 read with Section 151 CPC, the petitioners filed an application under Order 14 Rule 1 CPC on 19.11.2016 praying for framing of issues and taking of evidence of the parties.
12. The aforementioned application under Order 14 Rule 1 CPC however, was rejected by the learned court below vide its order dated 27.04.2017, while not interfering with and reviewing its earlier order dated 09.11.2016.
13. Being aggrieved by rejection of the aforementioned application vide order dated 27.04.2017, the petitioners have preferred a writ petition bearing S.B. Civil Writ Petition No. 5856/2017 before this Hon’ble Court, which was decided vide order dated 16.04.2018, while remanding the matter back to the learned trial court to pass a fresh order on the application under Order 14 Rule 1 CPC, while ignoring the earlier order dated 09.11.2016 and frame an order on its own reasons, strictly in accordance with law. However, after remand as well, the learned trial court dismissed the said application vide the impugned order dated 02.03.2019 with an observation that the matter can be decided on the basis of the documents, which were filed in the original suit No. 31/1984.
14. The main contention of learned counsel for the petitioners is that the aforementioned suit was filed by the deceased respondent (Amari Devi) without impleading the ancestors of the petitioners or any of their relative as party thereto. Learned counsel for the petitioners further submitted that the aforementioned suit was filed on 05.11.1984 i.e. after the plot in question was purchased on 08.12.1983 by the ancestor of the petitioners.
15. As per learned counsel for the petitioners, in the application so moved by the petitioners under Order 21 Rules 58 & 97 read with Section 151, they have raised an objection regarding execution of the land of the petitioners on the count that a patta was issued in favour of the petitioner’s father in respect of half of the land and in favour of one Shivdan for the remaining land, and that, in the suit so instituted by the deceased respondent, the petitioner or their ancestors or any of their relative have not been impleaded as party.
16. Learned counsel for the petitioners has referred to Order 21 Rule 97 CPC to contend that if any application is moved under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions contained therein, meaning thereby, such an application is required to be adjudicated by the learned court below, as if it is a suit by itself. The said provision is reproduced hereinbelow:
Rule 97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for 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) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]”
17. Learned counsel for the petitioner thus, submitted that in view of the aforequoted provision of law, the order dated 09.11.2016 is contrary to law.
18. Learned counsel for the petitioners has also referred to Order 14 Rule 1 CPC to contend that framing of issues is necessary, while deciding an application under Order 21 Rule 97 CPC, as the same needs to be decided just like a suit.
19. For ready reference Order 14 Rule 1 CPC is also reproduced as hereunder:-
“Order 14 Settlement of issues and determination of suit on issues of law or on issues agreed upon
Rule 1. Framing of issues
(1) Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.
(4) Issue are of two kinds;
(a) issues of fact
(b) issues of law.
(5) At the first hearing of the suit, the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where defendants at the first hearing of the suit makes no defence.”
20. Learned counsel for the petitioners thus submitted that the adjudication of an application under Order 21 Rule 97 CPC, alike a procedure to be followed in respect of any civil suit, can be done by virtue of Order 21 Rule 101 CPC.
21. Order 21 Rule 101 CPC is also reproduced hereinbelow:
“Rule 101. Question to be determined
All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”
22. Learned counsel for the petitioners thus submitted that the aforequoted provisions of law makes it amply clear that the learned court below has erred in proceeding with the matter, while not framing any issue over the subject matter, in contravention of the execution proceedings, as the adjudication has to be made on the strength of leading evidence, just like a suit, and the same can only be done by framing the issues, but this aspect of the matter has been totally ignored by the learned court below, while passing the impugned order.
23. In support of his submissions, learned counsel for the petitioners relied upon the precedent law laid down by the Hon’ble Supreme Court in Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr., reported in MANU/SC/0191/1997 : (1997) 3 SCC 694, relevant paras 6, 8, 9 & 11 read as under:-
“6. On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 28th April 1991 the application moved by the respondent decree-holder on 6th May 1991 was necessarily to be one falling within the scope and ambit of Order XXI, Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by Order XXI, Rule 97, CPC could have been offered by any person. The words ‘any person’ as contemplated by Order XXI, Rule 97 Sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by respondent No. 1 against the appellant. He is, therefore, prima facie a stranger to the decree. When he offered obstruction or resistance to the execution of the decree he would squarely fall within the sweep of the words ‘any person’ as found in Order XXI, Rule 97 Sub-rule (1). Consequently it must be held that respondent No. 1’s application dated 6th May 1991 though seeking only reassurance of warrant for delivery of possession with aid of armed force in substance sought to by-pass the previous resistance and obstruction offered by the appellant on spot. Thus it was squarely covered by the sweep of Order XXI, Rule 97 Sub-rule (1), CPC. Once that happened the procedure laid down by Sub-rule (2) thereof had to be followed by the Executing Court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said Order. We may in this connection also refer to the Schedule to the CPC, Appendix E which gives various forms for summons to be issued to parties in execution, proceedings especially form No. 40 which deals with ‘Summons to appear and answer charge of obstructing execution of decree (O. 21, R. 97)’. The said form reads as under:
Summons To Appear And Answer Charge Of Obstructing Execution Of Decree (O. 21, R. 97)
Whereas the decree-holder in the above suit, has complained to this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession:
You are hereby summoned to appear in this Court on the day of 19. …., at ….a.m., to answer the said complaint.
Given under my hand and the seal of the Court, this …. day of 19….Judge.’
8. 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-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication than as enjoined by Order XXI, Rule 98 Sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order XXI, Rule 99 to be put in possession of the property or if his application is found to be substance less it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI, Rule 98 Sub-rule (1) would be deemed to be a decree as laid down by Order XXI, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI, Rule 101.
9. In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 Sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is 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 the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject 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 to 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.
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 No. 1 decree-holder’s application dated 6th May 1991 praying for issuance of warrant for delivery of possession with the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order XXI, Rule 97, CPC and had to be adjudicated upon as enjoined by Order XXI, Rule 97 Sub-rule (2) read with Order XXI, Rule 101 and Order XXI, Rule 98. In this connection the Court had also to follow the procedure laid down by Order XXI, Rule 105 which enjoins the Executing Court to which an application is made under any of the foregoing Rules of the Order to fix 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 paragraph 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 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 XXI, 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 15th February 1996 are quashed and set aside and proceedings are remanded to the Court of Munsif II, Monger to re-decide the application of respondent No. 1 decree-holder dated 6th May 1991 by treating it to be one under Order XXI, 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 XXI, Rule 97 Sub-rule (2), CPC read with Order XXI, Rule 98, CPC as indicated in earlier part of this judgment.”
24. Learned counsel for the petitioners has also placed reliance on the precedent law laid down by the Hon’ble Supreme Court in Sameer Singh Vs. Abdul Rab, reported in MANU/SC/0924/2014 : (2015) 1 SCC 379, relevant paras 15, 16, 17, 20, 21, 24 and 26 of which read as under:
“15. Rule 97 deals with resistance or obstruction to possession by the holder of a decree for possession or the purchaser of any such property sold in execution of a decree. It empowers such a person to file an application to the Court complaining of such resistance or obstruction and requires the Court Under Sub-rule (2) to adjudicate upon the application in accordance with the provisions provided therein.
16. Rule 99 deals with dispossession by decree-holder or purchaser. It stipulates that:
“99. (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.”
The Court is obliged to adjudicate such an application. Thus this rule, as is manifest, includes any person other than the judgment-debtor.
17. Rule 101 deals with the questions to be determined. It provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application Under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with an application and not by a separate suit and for the said purpose, the executing court has been conferred the jurisdiction to decide the same.
20. The submission of the Learned Counsel for the Appellants is that if the scheme underlying the said Rules is appositely appreciated, it is clear as crystal that the legislature in order to avoid multiplicity of proceedings has empowered the executing court to conduct necessary enquiry and adjudicate by permitting the parties to adduce evidence, both oral and documentary, and to determine the right, title and interest of the parties and, therefore, such an order has been given the status of a decree. As has been put forth by him, a proceeding in terms of Rule 97 or Rule 99 is in the nature of a suit and the adjudication is similar to that of a suit and when in the case at hand, the Court has declined to embark upon any enquiry by calling for reply, recording evidence and appropriately adjudicating the controversy, the order passed cannot be regarded Under Rule 103 of Order XXI as a decree. In this context, the authorities that have been commended to us need to be carefully noticed.
21. In Noorduddin v. Dr. K.L. Anand MANU/SC/0533/1995 : (1995) 1 SCC 242, the executing court had rejected the application of the Appellant therein on the ground that the High Court had already adjudicated the lis. Analysing the language employed in Rules 97, 98 and 100 to 104, the Court held:
“8. Thus, the scheme of the Code clearly adumbrates that when an application has been made Under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Code of Civil Procedure Amendment Act, 1976, right of suit Under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property Under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
Elucidating further, the Court opined that adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to meet out justice and, therefore, adjudication Under Order XXI, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property Under execution.
24. In the case of S. Rajeswari (supra), the Appellant was one of the persons who had obstructed the execution of a decree obtained by the 1st Respondent therein and had filed an application Under Section 151 of Code of Civil Procedure which was rejected by the executing court on the ground that it was not maintainable. Being grieved by the said order he preferred a revision petition which was allowed by the High Court. The Court treated the application preferred Under Section 151 of Code of Civil Procedure to be one Under Order XXI, Rule 97 because the executing court proceeded to record evidence and thereupon adjudicated the matter. The evidence of the decree-holder was considered and a conclusion was arrived at that the identity of plot in question had not been established and thereby the Plaintiff was disabled from executing the decree for possession of the land. A contention was raised before this Court that the High Court had erred in entertaining a revision petition Under Section 115, Code of Civil Procedure, for the order was a decree Under Order XXI, Rule 103 of Code of Civil Procedure and hence, an appeal lay. The said contention was accepted by this Court.
26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon Under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The Appellants had invoked the jurisdiction of the High Court Under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The Appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and Ors.”
25. Reliance has also been placed by learned counsel for the petitioners on the precedent law laid down by the Hon’ble Supreme Court in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr., reported in MANU/SC/0252/1998 : (1998) 3 SCC 723, relevant paras 11, 12 and 14 read as under:-
“11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
12. The words “all questions arising between the parties to a proceeding on an application under Rule 97″ would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property, similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder, in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
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.”
26. On the other hand, learned counsel for the respondents submitted that in reply to the application Order 21 Rules 58 & 97 read with Section 151 CPC filed by the petitioners, the respondent has taken a categorical stand that the patta in respect of the plot in question was issued in favour of petitioner’s father on 07.09.1989, i.e. after filing of the suit by the deceased respondent on 05.11.1984, and therefore, the petitioners have no right to resist the execution.
27. Learned counsel for the respondents further submitted that the Hon’ble Supreme Court, in catena of judgments, has held that framing of issues and recording of evidence in execution proceedings is not essential in each case. Learned counsel for the respondents further submitted that recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course.
28. To substantiate his submissions, learned counsel for the respondents has placed reliance on the precedent law laid down by this Hon’ble Court in Smt. Shanti Devi & Ors. Vs. Chimanaram Mantri Trust & Ors., reported in MANU/RH/1173/2017 : 2017 3 DNJ 1384, particularly para 23, 24, 25, 30, 32 and 37, which read as under:-
“23. On careful analysis of the case laws referred above, this Court finds that none of the authorities cited by counsel for the petitioners enunciates that the recording of evidence and framing of issues is prerequisite for deciding an objection petition under Order 21, Rule 97 of the Civil Procedure Code or the same can be claimed as a matter of right.
24. Adverting to the judgments cited by Mr. Manish Shishodia, this Court has gone through the judgment of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., reported in MANU/SC/0252/1998 : (1998) 3 SCC p. 723, the Hon’ble Supreme Court in para No. 14 of the report has held that the adjudication under Order 21, Rule 97 of Civil Procedure Code does not contemplate detailed enquiry or collection of evidence. The Court can make adjudication on admitted facts or even on the basis of averments made by the resister; of course, the Court can direct the parties to adduce evidence for such determination, if the Court deems necessary. For the sake of ready reference, para 14 of the said judgment is reproduced hereunder:-
“14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses 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. The court can make adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary.”
25. A careful reading of the aforesaid judgment reveals that the Hon’ble Supreme Court has clearly held that recording of evidence is not necessary in each case. The Court in a given case, if deemed necessary, can direct the parties to adduce evidence.
30. On a careful and comprehensive reading of the judgment cited by rival counsels, this Court has discerned that framing of issues and recording of evidence in execution proceedings is not essential in each case. As far as framing of issues is concerned, the Courts can frame point of determination but such determination may or may not require recording of the evidence. If the executing Court, on the basis of material available on record, coupled with the pleadings of the parties, feels that recording of evidence or summoning of witness is needed, the same can be recorded. But, for that purpose, the applicant has to clearly indicate in his application, the reasons necessitating such order and relevance of the evidence to be recorded. Recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course. The applicant has to assert and give cogent reasons indicating therein the nature of dispute, the assertion of the parties and the facts which are required to be proved by oral evidence.
32. In view of the factual backdrop of the case, particularly when on the basis of the documentary evidence as placed by the petitioners, if the trial court has come to a conclusion that recording of evidence and framing of issues is not necessary, no fault can be found in the order impugned.
37. The Executing Court after considering the factual matrix obtaining in the execution proceedings, has reached to a conclusion that neither framing of the issues nor recording of the evidence is required, this Court does not feel inclined to interfere in such discretionary order, in exercise of its otherwise discretionary – supervisory jurisdiction, being guided by the principles enunciated by the Supreme Court and this Court.”
29. Learned counsel for the respondents also submitted that in respect of the possession warrant issued under Order 21 Rule 35 CPC, against which the petitioners had raised objections, the provisions of Order 21 Rule 58 and Order 21 Rule 97 CPC do not apply, as under Order 21 Rule 58, any person can raise objection only when during execution of the decree, his/her property has been impounded, or after impounding, the process of selling such property is going on. However, as per learned counsel for the respondents, such a situation is not at all operating in the present case, warranting invocation of such a provision, and the petitioners have resorted to the said provision just to prolong and obstruct the execution of the decree, which is not permissible under the law.
30. Learned counsel for the respondents further submitted that the suit land in question never remained under the ownership of Kishan Singh and Damar Singh, and thus, even in case any sale agreement has been entered into between them and the ancestor of the petitioners, the same cannot make the ancestor of the petitioners a lawful owner of the suit land. As per learned counsel for the respondents, even otherwise, an immovable property cannot be transferred by way of sale agreement.
31. Learned counsel for the respondents also contended that the objection raised by the petitioners regarding non-impleadment of the ancestor of the petitioners and Shivdan Singh has been dealt with by the learned court below on 22.08.1989, while decreeing the suit instituted by the deceased respondent, and the learned court below in that regard has observed that Bhairu Singh and Shivdan Singh were not proper and necessary parties to the suit.
32. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court finds that the learned court below had ample powers to decide the mode of execution for the property in question, for which the decree was already passed under Order 21 Rule 58 CPC. The facts of the case however, clearly point out that the petitioners’ insistence on framing of issues to decide their objections was not appropriate in the given facts and circumstances.
33. This Court also finds that the learned court below has already observed that the facts which were being sought to be determined in the execution petition by the petitioner have already been determined in the decree by the learned court passing the decree, and thus, there was no reason why redetermination of such facts would be done by the executing court. Thus, in the given facts and circumstances, the learned court below has rightly exercised its jurisdiction by not initiating any fresh exercise of framing of issues or gathering of evidence, as there was no such requirement at this stage.
34. This Court further finds that the learned court below has rightly observed that the original documents and the record of the case clearly indicate that there is no requirement of framing of issues or taking of any fresh evidence, as it would unnecessarily delay the adjudication of the case. This Court has also taken note of the fact that the matter is more than 10 years old, and thus, the same needs to be decided expeditiously.
35. The judgments cited by learned counsel for the petitioner do not apply to the facts of the present case.
36. In light of the aforesaid observations, no interference is called for in the present writ petition and the same is accordingly dismissed. Stay Application No. 4420/2019 also stands dismissed.