LexSHREENATH AND ANR. versus RAJESH AND ORS.
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. .....-( - SHREENA TH AND ANR. v. RAJESH AND ORS. APRIL 13, 1998 [K. VENKATASWAMI AND A.P. MISRA, JJ.] Code of Civil Procedure, 1908: Order 21 Rules 97(1) & (2), 98, 99, JOO, 101 and 103 (prior to, and after, 1976 Amendment). A B Mortgaged property-Vacant possession-Execution of decree-Tenants C in possession of the property obstructed decree-holder and filed an application/objection under R.-97 on the ground that they were not parties to the suit and that they had independent legal right not affected by the mortgage or redemption thereof-Held: Such application/objection maintainable both under the pre and post-1976 amendment-Distinction D between pre and post-1976 amendment explained-Further, the maintainability of such application/objection not affected by new R. 99 or old R. JOO. Order 21 Rule 97(1)-Words "any person"-Scope of-Held: Include even person not bound by the decree. Interpretation of Statutes : Procedural law-Interpretation of-Held: Where more than one interpretation is possible, the one which curtails the procedure and not the E one which eludes or frustrates the recipient of justice is to be adopted- F Further, procedural law is always subservient to, and in aid of. justice. Words and Phrases: "Any person"-Meaning of-In the context of O. 21 R. 97(1) of the Code of Civil Procedure, I 908. G The respondent filed a suit for the redemption of his mortgaged .._ "' property, which was decreed. The decree directed delivery of vacant possession of the mortgaged property. In the said suit, the appellants were not arrayed as parties. As the respondent put the decree in execution in which the appellants, who were in possession of the property as tenants, obstructed the H 709 710 SUPREME COURT REPORTS [1998] 2 S.C.R. A respondent and filed an application/objection under Order 21Rule97 of the Code of Civil Procedure, 1908 on the ground that the appellants were not arrayed as parties to the suit and that they had independent legal right to the property not affected either by the mortgage or redemption thereof. The Executing court held that the application/objection filed by the B appellants was not maintainable under Order 21 Rule 97 CPC. Hence this appeal. Allowing the appeal, this Court C HELD: 1. Under Order 21Rule35(1) of the Code of Civil Procedure, 1908 the Executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. Under Order 21 Rule 36 the decree-holder gets the symbolic possession. Order 2l. Rule 99 conceives of resistance or obstruction to the possession of immovable D property when made in execution ofa decree by "any person". This may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right uf his own including tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the Executing Court complaining such resistance for delivery E of possession of the property. Rule 97(2) after the 1976 substitution empowers the Executing Courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with provisions contained therein. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 should be determined by the F Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matters pertaining to that property even if obstructed by a stranger is adjudicated in the execution proceedings. The expression "any person" in Rule 97(1) is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any G person" it includes all person resisting the delivery of possession, claiming right in the property even those not bound by the decree, including tenants or other persons claiming right o:i their own including a stranger. So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out H to relegate itself to the long drawn out arduous procedure of a fresh suit. ,........, . -,
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