ASHAN DEVI AND ANR versus PHULWASI DEVI AND ORS.

Citation: [2003] SUPP. 5 S.C.R. 820 · Decided: 19-11-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
ASHAN DEVI AND ANR 
v. 
PHUL WASI DEVI AND ORS. 
NOVEMBER 19, 2003 
B 
[SHIVA RAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.] 
Code of Civil Procedure, 1908: 
Order X(I-Rules 97, 99 and IOI as amended by the Amendment Act, 
C 19 7 6-suit for specific performance of agreement of sale-Ex-parte decree-
Application by objector complaining of dispossession of suit property-
Executing court allowing the application on merits-High Court reversing 
on the ground of no actual or physical dispossession of suit property under 
the code and lack of jurisdiction in executing court to decide the application 
D on merits-Maintainability of the application-Held , after amendment in 
CPC, a third party can seek adjudication of dispossession in execution 
proceeding itself to curtail prolongation of litigation-On facts, the objector 
is dispossessed of suit property by an ex-parte decree and hence the 
application is maintainable. 
E 
Respondent-decree holder filed a suit for specific performanc1~ of 
agreement of sale of suit properties against vendors before trial court. The 
vendors did not contest the suit. The trial court passed an ex-parte decree in 
favour of the decree holder. The decree was put in execution by the dec:ree 
holder by depositing the balance consideration of sale in the court and a 
registered sale deed was executed by the court in favour of the decree holder. 
F The appellant- objectors filed an application under Order XXI Rule 99 CPC 
before the executing court complaining dispossession of suit properties. The 
executing court, after framing a preliminary issue on the maintainability of 
the application and issues on merit, decided in favour of the objectors. 
G 
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 
H 
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 

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