JINI DHANRAJGIR & ANR versus SHIBU MATHEW & ANR. ETC.

Citation: [2023] 5 S.C.R. 551 · Decided: 16-05-2023 · Supreme Court of India · Bench: A.S. BOPANNA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

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[2023] 5 S.C.R. 551
551
JINI DHANRAJGIR & ANR.
v.
SHIBU MATHEW & ANR. ETC.
(Civil Appeal Nos. 3758 – 3796 of 2023)
MAY 16, 2023
[A. S. BOPANNA AND DIPANKAR DATTA, JJ.]
Code of Civil Procedure, 1908 : s. 47, Ord. XXI r. 97 –
Execution of decrees– Resistance to delivery of possession to decree-
holder or purchaser – Original plaintiff filed suit for declaration
of title and recovery of possession against the defendants – Suit
decreed in favour of the plaintiff and the defendants directed to put
the plaintiff in possession of the suit property – In appeal, decree
modified to the extent of paying compensation to defendants in lieu
of part-payment of purchase consideration made by defendant no.
1 and thereafter, the defendants would surrender the vacant
possession of the property – Execution application by the appellant-
son and daughter of the plaintiff – Executing Court held that the
objections filed by the respondents, who had purchased the property
from defendant no. 1 to be maintainable and deemed it necessary
to adjudicate the same on their own merits – On appeal, held: Claim
regarding right, title and interest in respect of their respective shares
in the decretal property, as raised by the respondents, cannot be
thrown out at the threshold since it is well within their rights to
contest the application u/ Ord. XXI r. 97 filed by the appellants –
Since evidence is required to be led before it, the Executing Court
was justified in holding the objections to be maintainable at this
stage not in the sense that the decree cannot be executed against
them but in the sense that a prima facie case had been set up for an
enquiry to be conducted, and posting the matter for evidence to be
led by the parties – Upon determination of the questions referred to
in r. 101, the Executing Court would proceed in the manner
mandated by r. 98 –Thus, interference with the order under challenge
not called for – Executing Court to deal with the application of the
appellants u/Ord. XXI r. 97 together with the objections raised by
the respondents on their own merits – Appellants have been deprived
of the fruits of the decree for over two decades, it would be just and
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
proper that the Executing Court decides the issue as early as
possible.
Constitution of India : Art. 136 – Power to grant leave under
– Appellant directly coming before this Court against the order of
the Executing Court without subjecting such orders to any challenge
before the High Court – Permissibility of – Held: This Court should
not entertain such matters – Litigants should not be indulged to
hop, skip and jump to reach the Supreme Court for the remedy is
quick and more efficacious – Supreme Court in its discretion does
entertain special leave petitions directly from orders of tribunals/
courts without the High Court having been approached only in
matters where substantial questions of general importance are
involved or where a similar issue is pending for its consideration –
This Court would not allow a party invoking the ‘special leave’
jurisdiction to bypass the remedy available – Alternative remedy.
Dismissing the appeals and Contempt petition, the Court
HELD : 1.1 Section 47 CPC, being one of the most important
provisions relating to execution of decrees, mandates that the
court executing the decree shall determine all questions arising
between the parties to the suit or their representatives in relation
to the execution, discharge, or satisfaction of the decree and that
such questions may not be adjudicated in a separate suit. What is
intended by conferring exclusive jurisdiction on the executing
court is to prevent needless and unnecessary litigation and to
achieve speedy disposal of the questions arising for discussion
in relation to the execution, discharge or satisfaction of the
decree. Should there be any resistance offered or obstruction
raised impeding due execution of a decree made by a court of
competent jurisdiction, the provisions of Rules 97, 101 and 98 of
Order XXI enable the executing court to adjudicate the inter se
claims of the decre appellants have been deprived of the fruits of
the Decree for over two decades, it would only be just and proper
to request the Executing Court to proceed to decide the
contentious issues in accordance with law e-holder and the third
parties in the execution proceedings themselves to avoid
prolongation of litigation by driving the parties to inst

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