BHANWAR LAL versus SATYANARAIN AND ANR.

Citation: [1994] SUPP. 4 S.C.R. 208 · Decided: 04-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY, S.C. AGRAWAL, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
BHANWAR LAL 
v. 
SATYANARAIN AND ANR. 
OCTOBER 4, 1994 
(K. RAMASWAMY, S.C. AGRAWAL AND 
N. VENKATACHALA, JJ.] 
Code of Civil Procedure, 1908 : 
C 
Order 21-Rule 35(3)-Rule 97 Scope and distinction between--
Decree-Execution-Obstruction by third party not deriving title through judg-
ment debtor-:Decree holder's application under Judgment debtor-:Decree 
holder's application under Rule 35(3)-Whether can be treated under Rule 
97. 
D 
The appellant obtained an ejectment decgree against R which be· 
came final. Thereafter when the first respondent obstructed delivery of 
possession the appellant liled an application under Order 21 Rule 35(3) 
of the Code of Civil Procedure, 1908 for police assistance but the Court 
directed him to Ille application under Order 21 Rule 97. Consequently, he 
E llled second application under Order 21 Rule 97 but the same was dis· 
missed as barred by limitation. The appellant liled a third application 
under Order 21 Rule 97 which was dismissed on the ground of res-judicata. 
On appellant's appeal the appellate Court directed removal of obstruction 
holding that he was not precluded from llling the third application. The 
respondent filed a revision before the High Court which set aside the order 
F 
of the appellate court and confirmed that of the executing court. On 
further review, the High Court confirmed its order. Against the orders of 
the High Court the appellant preferred appeal in this Court. 
G 
Allowing the appeal, this Court 
HELD : 1. The High Court has committed grievous error of juris· 
diction and also patent illegality in treating the second application llled 
by the appellant as barred by limitation and the third application on 
res-judicata. Once the application under Order 21 Rules 35(3) of the Code 
of Civil Procedure was made, the court should have treated it to be one 
H llled under Order 21 Rule 97(1) CPC. [212-B, CJ 
208 
BHANWAR LAL v. SATYANARAIN 
209 
2. A reading of Order 21 Rule 35(3) postulates that the person in A 
possession of the immovable property to be delivered under the decree 
must be per force bound by the decree. Admittedly, Respondent was not a 
judgment-debtor and that therefore, he is not bound by the decree unless 
he claims right, title or interest through the judgment-debtor. However, 
Order 21Rule97 CPC clearly envisages that if"any person" even including B 
the judgment debtor, irrespective of the fact whether he claims derivative 
title from the judgment-debtor or set up his own right title or interest, de 
hors the judgment-debtor, resists execution of a decree, then the court in 
addition to the power under Rule 35(3) can 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 C 
application against third parties to have his obstruction removed and an 
enquiry thereon could be done. (210-H, 211-E, FJ 
3. When the appellant had made the application against respondent, 
in law it must be only the application made under Order 21 Rule 97(1) of 
CPC. But the Executing Court, obviously, was in error in directing to make D 
a fresh application. It is the dnty of the executing court to consider the 
avermeuts in the petition and consider the scope of the applicability of the 
relevant rule. The Executing Court was directed to conduct an enquiry for 
removal of the obstruction for delivery of possession of the property 
covered by the. decree and pass appropriate orders according to law. 
E 
(211-H, 212-E] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3651 of 
1990. 
From the Judgment and Order dated 362/88 of the Rajasthan High 
Court in S.B.C.R. No. 352 of 1983. 
F 
U.N. Bachawat, and H.M. Singh for the Appellant. 
R.K. Maheshwari and Vmeet Maheshwari for the Respondents. 
The following Order of the Court was delivered : 
G 
The appellant had obtained a decree in Second Appeal No. 175/71 
from the High Court of Rajastban on March 21, 1979 of ejectment of Ram 
Kishan, mesne profits till date of possession and also arrears of rent. That 
decree had become final. Thereafter, the appellant filed an execution 
application under Order 21 Rule 35(3) of the Code of Civil Procedure, for H 
210 
SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R. 
A 
short the CPC, on May 24, 1979. Thereafter, when one Satyanarain, the 
first respondent in this appeal had obstructed delivery of the possession, 
on the next day, namely, May 25, 197

Excerpt shown. Read the full judgment & AI analysis in Lexace.