BRAHMDEO CHAUDHARY versus RISHIKESH PRASAD JAISWAL AND ANR.

Citation: [1997] 1 S.C.R. 463 · Decided: 22-01-1997 · Supreme Court of India · Bench: A.S. ANAND, S.B. MAJMUDAR · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

' ' 
BRAHMDEO CHAUDHARY 
v. 
RISHIKESH PRASAD JAISWAL AND ANR. 
JANUARY 22, 1997 
[DR. AS. ANAND AND S.B.MAJMUDAR, JJ.] 
Civil Procedure Code, 1908-0rder XX!, Rules 35, 97, 98, 99, 101, 
105--Stranger to the decree-Occupying decretal premises in his own 
right-Resisting execution of the decree--Approaches the executing court to 
adjudicate upon his right-Held: The executing court is bound to adjudicate 
upon the objections raised by the stranger under Order XX!, Rule 97-Can 
not refuse to adjudicate upon the objections raised by the stranger before 
handing over possession-Asking the stranger to move application under Order 
XX!, Rule 99 after handing over possession will result in patent breach of 
natural justice. 
A decree was passesd in favour of respondent No.1, in a suit for 
eviction filed by him against respondent No. 2. Respondent No.1 obtained 
warrant for delivery of possession from the Executing court against 
Respondent No. 2. When the bailiff went to the spot to execute the warrant, 
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B 
c 
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he was resisted by the appellant. The decree-holder, re~pondent No. 1, E 
made an application on the 6th May, 1991, praying for issuance of warrant 
for delivery of possession with the aid of armed force. E::e~uting Court 
directed execution of the warrant for possession by affording help of police 
force to the decree-holder. At this stage the present appellant filed an 
application before the Execution Court to stay the operation of the warrant 
and to decide his objections. The executing court dismissed the application 
without adjudicating upon the objections of the appellant on merits. It 
took the view that the remedy of the appellant was to move an application 
under Order XXI, Rule 99 after he was dispossessed and as that stage had 
not reached the request of the appellant to adjudicate his claim could not 
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be entertained. On appeal, the High Court confirmed this view. Hence the G 
present appeal. 
Allowing the appeal, this Court 
HELD :1.1. When resistance is offered by a purported stranger, who 
claims an independent right, title and interest in the decredal property, H 
463 
464 
SUPREME COURT REPORTS 
[1997] 1 S.C.R. 
A the Executing Court can no1t tell such obstructionist that he must first 
hand over possession and thien only his remedy is to move an application 
under Or.der XXI, Rule 99 of the Code of Civil Procedure and pray for 
restoration of possession. It is but natural that a stranger to the decree 
claiming independent right on the decretal property can offer resistance 
B before getting actually dispossessed. [ 473-H; 474-A] 
1.2 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 obstruc-
tionist can be adjudicated u~oon before actual delivery of possession to the 
decree-holder. The High Court has totally ignored the scheme of Order XXI, 
C Rule 97 by taking the view that the only remedy of such stranger to the decree 
lies under Order XXI , Rule 9!1 and he has no locus standi to get adjudication 
of his claim prior to the.actu1al delivery of possession to the decree-holder 
in the execution proceedings .. This view taken by the High Court results in 
patent breach of Principles of natural justice as the grievance of the 
D obstructionist would not be. considered on merits. [474-C-G] 
1.3 On the contrary, the statutory scheme envisaged by Order XXI, 
Rule 97 provides a statutory remedy both to the decree-holder as well as 
to the obstructionist to have their respective say in the matter and get 
proper adjudication before the Executing Court. If a decree-holder is 
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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 as well as 
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the obstructionist, the Courit can pass appropriate orders after adjudicat-
ing upon the controversies between -the parties as enjoined by Order XXI, 
Rule 97, sub-rule(2) read with Order XXI, Rule 98 and such order passed 
would be treated as a decre1e under Order XXI, Rule 101 and no separate 
suit would lie against such order meaning thereby the only remedy would 
G be to prefer an appeal before the appropriate appellate court against such 
deemed decree. [472-E-G] 
1.4. When

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