NOORDUDDIN versus DR. K.L. ANAND

Citation: [1994] SUPP. 4 S.C.R. 322 · Decided: 06-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
NOORDUDDIN 
v. 
DR. K.L. ANAND 
OCTOBER 6, 1994 
B 
[K. RAMASWAMY AND N. VENKATACHALA, JJ.] 
Civil Procedure Code, 1908-0rder 21, Rule 97-Scheme unde,-Ex-
ecution proceedings-Application under Order 21, Rules 97 & 98-C/aim of 
C independent right, title and interest in immovable property under execu-
tion-Court enjoined to adjudicate claim and record a finding. 
The applicant's father - N, R and W are brothers. M and B, their 
cousins migrated to Pakistan. Their properties were declared as evacuee 
properties. The· competent authority passed an order separating the 
D respective shares held by the evacuees as well as the father of the appellant, 
R and W and allotted specific items to N. A, an auction of the evacuee 
properties, the respondents was the highest bidder. Properties bearing 
Khasra Salmi No. 13 and 14 were confirmed in favour of the respondent. 
R & W challenged the said sales in Delhi High Court contending that the 
properties sold pursuant to the declaration of those properties being 
E evacuee were not, in fact, correct; they had interest in the sold properties 
and that, therefore, the sale made in favour of the respondents was illegal. 
The Writ Petition filed was dismissed and that order had become final. 
Therein, though N was impleded as 5th respondent, no relref if any sort 
was claimed against him. The respondent filed suit against R & W for 
F 
possession of the properties bearing Khasra Salmi Nos. 13 & 14. The suit 
was dismissed but on appeal, the Delhi High Court decreed the suit for 
possession and the decree had become final. 
Resisting the execution and delivery of possession, appellant made 
G 
an application under Order 21, Rules 97 & 98 r/w S. 151 Civil Procedure 
Code, contending that his father and members of bis family had not 
migrated to Pakistan though the custodian had declared certain ancestral 
properties to be evacuee properties which were later sold to the respondent 
under Khasra Salmi Nos. 13 & 14. It was further alleged that the respon-
dent had obtained collusive decree against others, the land was not demar-
H cated and the land bears Khasra No. 179 and it is in his possession as 
322 
NOORDUDDIN v. K.L. ANAND 
323 
owner by virtue of his share in the ancesral property which never vested A 
in the custodian nor it is sold to the respondent. 
The executing Court dismissed the application on the ground that 
the dispute was already adjudicated by the High Court. On revision, High 
Court dismissed the revision holding that the controversy was concluded 
in Writ Petition wherein the applicant's father was arrayed as respondent 
B 
and that, therefore, he cannot make the objections. This appeal bas been 
filed against the said order of the High Court. 
The question for determination was whether the executing Court and 
the High Court had properly appreciated the scheme under Order 21, Rule C 
97 and declined to entertain and adjudicate the claim of the appellant. 
Allowing the appeal, this Court 
HELD 1.1. The scheme of the Civil Procedure Code clearly 
adumbrates that when an application has been made under Order 21, Rnle D 
97, Civil Procedure Code, the Court Is enjoin to adjudicate upon the right, 
title and interest claimed in the property arising between the parties to a 
proceeding or between the decree bolder and the person claiming inde· 
pendent 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 decree subject to right of appeal and not a matter to 
be agitated by a separate snit. Thus, the scheme of the Code appears to be 
to put an end to the protection of the execution and to shorten the litigation 
between the parties or persons claiming right, title and interest in the 
Immovable property In execution. [332·B·E] 
1.2. The execution Court is enjoined to adjudicate the claim or the 
objection or the claim to resistance. Rule 97, enables snch a person to make 
an application which must be ; .. dependent of the judgment debtor or a 
person having derivative right from the jndgment debtor. The applicant in 
E· 
F 
bis own right must be In possession of the property. Admittedly, neither the G 
applicant nor his father was a party to the snit or appeal. Therefore, the 
decree perforce does not bind him. In the writ proceeding, though bis father 
'{was impleaded as 5th respondent, no relief was claimed against him nor 
a finding adverse to him bas been reco

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