LexSMT. VED KUMARI (DEAD THROUGH HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL versus MUNICIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER
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[2023] 11 S.C.R. 602 : 2023 INSC 764 CASE DETAILS SMT. VED KUMARI (DEAD THROUGH HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL v. MUNICIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER (Civil Appeal No(s). 5409-5410 of 2023) AUGUST 24, 2023 [B. V. NAGARATHNA AND PRASHANT KUMAR MISHRA, JJ.] HEADNOTES Issue for consideration: The question for consideration was whether the High Court was justifi ed in upholding the order of the Executing Court holding that the decree for possession of immovable property is not executable against the judgement debtor, merely because the decree-holder lost possession to an encroacher. Code of Civil Procedure, 1908 – Ord. XXI rr 97 to 101 – Execution of judgment and orders – Executing Court holding an execution decree as inexecutable, on the ground that the decree-holder lost possession to an encroacher – Correctness of: Held: Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree- holder lost possession to a third party/encroacher – If this is allowed, every judgment-debtor in possession of the immoveable property till the decree is passed, would hand over possession to a third party to defeat the decree- holder’s right and entitlement and this would continue indefi nitely and no decree for immovable property can be executed – It was the duty of the Executing Court to issue warrant of possession for eff ecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance was off ered by any stranger to the decree, the same be adjudicated upon in accordance with rr. 97 to 101 of Ord. XXI – On facts, 602 603 no resistance off ered by any purported stranger/encroacher to the decree – In the absence thereof, the Executing Court had no occasion to invoke Ord. XXI, rr 97 to 101, at the instance of the decree-holder – Executing Court could not have closed the execution proceedings holding that the decree is inexecutable – Thus, the orders passed by the High Court and the Executing Court set aside – Issuance of direction to the Executing Court to execute the decree by eff ecting delivery of physical vacant possession to the decree- holder. [Paras 10, 15 and 16] LIST OF CITATIONS AND OTHER REFERENCES Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. (1997) 3 SCC 694 : [1997] 1 SCR 463; Bhanwar Lal v. Satyanarain (1995) 1 SCC 6 : [1994] 4 Suppl. SCR 208; Shreenath & Anr. v. Rajesh & Ors. (1998) 4 SCC 543 : [1998] 2 SCR 709; Sameer Singh & Anr. v. Abdul Rab & Ors. (2015) 1 SCC 379 : [2014] 10 SCR 1004; Jini Dhanrajgir & Anr. v. Shibu Mathew & Anr. (2023) SCC Online SC 643 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5409-5410 of 2023. From the Judgment and Order dated 07.04.2016 in CRP No. 152 of 2012 and dated 04.11.2016 in RP No. 487 of 2016 of the High Court of Delhi at New Delhi. Appearances: Gopal Sankaranarayanan, Sr. Adv., Senthil Jagadeesan, Adit S. Pujari, Ms. Maitreya Subramaniam, Ms. Mantika Vohra, Advs. for the Appellant. Praveen Swarup, Devesh Maurya, Ms. Payal Swarup, Chander Shekher Malhotra, Vivek Verma, Hari Sahteshwar, Advs. for the Respondent. SMT. VED KUMARI (DEAD THR. HER LEGAL REPRESENTATIVE) DR. VIJAY AGARWAL v. MCD THR. ITS COMMISSIONER 604 SUPREME COURT REPORTS [2023] 11 S.C.R. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT PRASHANT KUMAR MISHRA, J. Leave granted. 2. These appeals arise from the judgment and orders dated 07.04.2016 and 04.11.2016 passed in C.R.P No. 152 of 2012 and R.P No. 487 of 2016 respectively, whereby the High Court has affi rmed the order of the Executing Court dated 11.09.2012 holding that the decree for possession of immoveable property is not executable against the judgment-debtor. 3. The factual matrix of the case is that the appellant (since deceased represented through Lrs.) who is the original plaintiff , leased out land measuring 400 sq. yds. out of Khasra No. 4/39/1 situated at village Khureji Khas, Abani Radheypuri, Ilaqa Shahdara, Delhi (hereinafter referred to as ‘the Suit Land’) within the limit of Municipal Corporation Delhi vide lease deed dated 06.01.1973 to the respondent-Corporation (Original defendant) for a period of 10 years initially @ monthly rent of Rs. 30/-, which was renewable with the consent of both the parties, however the lease was not renewed subsequently after ex
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