Published on: 02 September 2023 at 12:25 IST
Court: Supreme Court
Citation: Shreenath V. Rajesh (1998)
Honourable Supreme Court of India has held that there is no requirement of a fresh Civil Suit for a decree holder and third person in possession of the property. It is held that Order 21 Rule 35 of the Code of Civil Procedure, 1908 deals with cases of delivery of possession of an immovable property to the decree-holder by delivery of actual physical possession and by removing any person in possession who is bound by a decree. It is held that Order 21 Rule 97 CPC as aforesaid, conceives of cases where delivery of possession to the decree-holder or purchaser is resisted by any person.
10. Under sub-clause (1) Order 21 Rule 35, 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.
The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession.
Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person”. This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a 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 of possession of the property. …………………….We find the expression “any person” under sub-clause (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 person” it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger.
Drafted By Abhijit Mishra