Where a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name of the declared purchaser. (Order XXI, Rule 94).
A sale in execution of a decree passed by a small cause court cannot be invalid when the sale certificate which is a solemn document purports to have been issued by the court of Munsif. The mere fact that below the signatures, the presiding officer has been described as Munsif and Judge, Small Court, does not detract from the validity or correctness of the sale certificate.
According to section 65, C.P.C., it is the confirmation of the sale that passes the title and the auction-purchaser becomes the owner of the property from the date of the sale. Under Order XXI, Rule 94, the vesting of title is not made dependent on the issue of the sale certificate.
Sale certificate & Boundaries of property:
The position in law is well settled that certificates of sale are documents of title which ought not to be lightly regarded or loosely construed. In the sale certificate the boundaries of the property that was sold had been clearly indictated. In addition, the sale certificate also gave the description of the property as ‘Chandrika Nilagam’ with house number.
The mention of the words “terraced house” in the description cannot be construed to mean that only a part of the property falling within the boundaries was sold and a part of the said property was left out. The main building having the terrace and a room on the first floor can be described as the terraced house and alter structures and land within the boundaries are the part of the said property.
Property comprising of a terraced building, and a building having a room on first floor and open land property sold cannot be divided into two parts only on the basis of words ‘terraced house’ used in sale certificate to confine sale certificate to only part of property sold. Any other construction alters the boundaries of the property that has been sold.
Limitation of application by auction purchaser for delivery of possession starts from date sale become absolute in terms of Order XXI, Rule 91 and not when sale certificate is issued.
Resistance to delivery of possession to decree-holder or purchaser:
Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may apply to the court, which shall proceed to adjudicate upon the application in accordance with the provisions herein contained (Order XXI, Rule 97); and upon determination of the questions the court shall in accordance with such determination,—(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (Order XXI, Rule 98).
Where upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and if the applicant is still resisted or obstructed in obtaining possession, the court may also, at his instance, order the judgment-debtor or any person acting at his instigation, to be detained in the civil prison up to 30 days. (Section 74 and Order XXI, Rule 98).
The executing court can direct removal of obstruction in execution of decree for eviction or possession in absence of mandatory injunction for demolition of the structure made during pendency of suit. There is no need to resort to separate suit seeking mandatory injunction.
Stranger to the decree for possession can get adjudication of his claim prior to the actual delivery of possession to the decree-holder in possession. His grievance must be considered and heard before throwing him off lock, stock and barrel by use of police force by decree holder. It is consistent with the principles of natural justice.
In order that the executing court may have jurisdiction to execute the decree against a person who is not the judgment-debtor and obstructs the execution of the decree, the court has to find that the resistance or obstruction to the decree was without any just cause, and at the instigation of the judgment-debtor.
A perusal of the provisions of Order XXI, Rule 97, makes it abundantly clear that whenever a decree-holder is obstructed or resisted in any proceedings in obtaining the possession of the property, he may make an application to the court complaining of such resistance or obstruction.
The court will then take recourse to the provisions of Order XXI, Rule 98, where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation; it shall direct that the applicant be put into possession of the property and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation, to be detained in the civil prison for a term which may extend to thirty days.
The executing court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder auction-purchaser under Order XXI, Rule 97. This rule is merely permissive and not mandatory so that the decree-holder auction-purchaser need not resort to it against his will and may even apply for a fresh warrant under Order XXI, Rule 35, C.P.C.
The executing court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein.
If the executing court were to stay its hands till investigation into a third party’s claim is not finally decided, then it would result in depriving the decree-holder of his possession by filing repeated spurious claims.
After amendment of Order XXI, C.P.C. in 1976 a full investigation of title is contemplated under Rule 97 and not summary enquiry. Thus, it would cause greater hardships to the decree-holder, if every claim by the third party is to be investigated by the executing court.
Execution of ex parte decree for specific performance:
Where objection was raised that agreement was for sale and also decree was void being violative of provisions of Urban Land Ceiling Act, 1976 which stood repealed by virtue of Repealing Act of 1999 at the relevant time. Held, that even Section 3 of the Repealing Act which was saving provision would be of no avail to the judgment-debtor because once decree for specific performance had been granted, he was debarred by finality of decree from raising such objection in execution.
The scheme of the Code clearly adumbrates that when an application has been made under Order XXI, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent 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 a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding C.P.C. Amendment Act, 1976, right of suit under Order XXI, Rule 103 of 1908 Code was available which has been now taken away.
By necessary implication the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
“Any person” includes all persons resisting the delivery of possession, claiming right in the property even those not bound by decree, includes tenants or other persons claiming right as their own including a stranger. A third party in possession claiming independent right as a tenant can object and get adjudication when he is sought to be dispossessed by the decree-holder. He has not to wait for his dispossession to object the execution proceedings.
Execution court can adjudicate about the resistance to execution of decree by third party.
Application against resistance or obstruction to possession of property is properly rejected where the applicant’s earlier suit filed by him claiming possession of suit property was dismissed and without producing any evidence of possession he falsely claimed to be a tenant in suit property.
The argument to sale was entered with knowledge that the tenant was in possession of premises. The purchaser without impleading the tenant as party to suit for possession obtained decree for possession. He also filed no independent suit for eviction of tenant.
The tenant filed suit under Order XXI, Rules 98, 99 relating to his right to remain possession. The purchaser of property moved for execution of decree for possession. It is illegal and violative of Art. 21 of the constitution of India in the meanwhile to dispossess the tenant by purchaser of property without due process of law.
In a decree for possession after noting the obstruction by stranger by the executing court, warrant for possession with police assistance cannot be re-issued without deciding any independent right, title or interest of the stranger.
As any other course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported stranger to the decree and it will be in patent breach of principles of natural justice.
The executing court is required to decide the objection against the decree for specific performance of sale deed of property, where the objector was not party to that decree. The executing court dismissed the objection on the ground that since the objective was not dispossessed his application under Order XXI, Rule 97 was not maintainable.
Such order of the executing court is illegal as dispossession of the objector is not a condition for declining to entertain the application. Before dispossession of the objector a finding is required to be recorded in that behalf. Such order is treated a decree under Order XXI, Rule 103 and it is subject to appeal. The procedure prescribed in this regard is a complete code in itself.
Due Process in Dispossession:
It is illegal and violative of Art. 21 of the Constitution of India to dispossess a tenant without due process of law while the suit under Order XXI, Rules 98, 99 of tenant was pending challenging the execution of the decree of possession of suit property purchased with the knowledge of his tenancy and without impleading him as a party in suit for filing independent suit for his eviction.
Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to meet out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right.
The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts.
The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice.
The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order XXI, Rules 98, 100 and 101 and its successive rules is sine qua non to, a finality of the adjudication of the right, title or interest in the immovable property under execution.
A stranger can get his claim adjudicated even before losing his possession in execution of decree for possession and the decree-holder cannot by-pass such obstruction by stranger by insisting on re-issuance of warrant under Order XXI, Rule 35 in violation of principles of natural justice and procedure laid down under Order XXI, Rule 97.
During the pendency of the suit of tenant under Order XXI, Rules 98, 99 relating his right to remain in possession challenging the validity of a decree of possession obtained by the purchaser of property with the knowledge of tenancy and without making him a party in suit, it is illegal and violative of Art. 21 of the constitution of India to dispossess the tenant without due process of law by such purchaser owner of the property.
Suit for declaration of title and vacant possession was filed and decree was passed to that effect. The judgment-debtor constructed shops and the tenants were inducted into possession without leave of the court. The executing court ordered the removal of illegal or unlawful construction made pendente lite and handing over vacant possession to decree-holder.
Such order is justified and within jurisdiction of the executing court. The tenants are bound by decree and their impleadment as parties defendents to the suit was not necessary. The tenants claim title, right or interest in the property through the judgment-debtor.
Where any person other than the judgment-debtor is dispossessed of
immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.
The court shall thereupon proceed to adjudicate upon the application in accordance with the provision herein contained (Order XXI, Rule 99), provided that the property was not transferred to him by the judgment-debtor after the institution of the suit in which the decree was passed. (Order XXI, Rule 102).
Dispossession by decree-holder:
The word ‘dispossessed’ under C.P.C. Order 21, Rule 99 did not mean actual and physical dispossession, but it means losing right and control over land.
Execution of ex parte decree of specific performance of contract:
Where delivery of possession to decree-holder was objected to, by third party purchaser claiming to be in possession of vacant land under registered sale deed. Held that it was maintainable under C.P.C. Order 21, Rule 99 and not by filing separate suit. Evidence was produced by third party objectors that their names were also mutated in Municipal records.
Delivery of possession to decree-holder by execution Court amounted to ‘dispossession’ or ‘legal ouster’ of objectors/third party purchasers within the meaning of Order 21, Rule 99 of C.P.C. Fact that they were not physically present on property at the time of execution of decree was immaterial. As legal meaning of ‘possession’ should be ascertained from context and nature of property involved.
Application against dispossession maintainable:
Application against dispossession under C.P.C. Order XXI, Rule 99 was independent application. Filing of such application was not dependent upon pendency of any execution proceeding. Dispute had arisen out of orders of delivery of possession pursuant to decree of specific performance of contract passed by Court. Held that such application was maintainable.
Order to be passed upon application complaining of dispossession:
Upon the determination of the questions referred to in rule 101 the court shall, in accordance with such determination,
(a) Make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) Pass such order as, in the circumstances of the case, it may deem fit. [Order XXI, Rule 100].
The omission by the executing court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his title judicially investigated prior to his dispossession, his only remedy then being under Order XXI, Rule 10 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein relief of temporary injunction to protect his possession.
The executing court in exercise of incidental, ancillary or inherent power to deliver possession of property in execution of decree for eviction or possession can order the demolition of unauthorised structure raised during the pendency of the suit in absence of mandatory injunction for demolition by virtue of Rules 35(3), 101 of Order XXI, C.P.C. There is need of filing separate suit for mandatory injunction for demolition.
Questions to be determined:
All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and, for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. [Order XXI, Rule 101].
Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. [Order XXI, Rule 102].
In this rule, “transfer” includes a transfer by operation of law.
Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree. [Order XXI, Rule 103].
Stranger, whose objection to execution of possessory decree has been rejected, has only remedy of filing suit under Rule 103 as no revision lies against order.
Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or rule 103 is made has sought to establish a right which he claims to the possession of the property. [Order XXI, Rule 104],
Hearing of application:
The court before which an application under any of the foregoing rules of this order is pending may fix a day for the hearing of the application. [Order XXI, Rule 105(1)].
Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an order that the application be dismissed [Order XXI, Rule 105(2)].
Where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the court may hear the application ex parte and pass such order as it thinks fit. [Order XXI, Rule 105(3)].
An application referred to in sub-rule (1) includes a claim or objection made under Rule 58.
No implication of Section 5 of Limitation Act on order passed ex parte under Rule 106 of Order XXI of C.P.C:
Where a petition was filed for setting aside orders passed ex parte under Order XXI, Rule 106 of the Code of Civil Procedure 1908, Section 5 of the Limitation Act, 1963 had no application thereof.
Setting aside order passed ex parte, etc:
The applicant against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (2) of that rule or under sub-rule (1) of Rule 23, may apply to the court to set aside the order and if he satisfies the court that there was sufficient cause for his non-appearance when the application was called on for hearing the court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. [Order XXI, Rule 106(1)].
No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party. [Order XXI, Rule 106(2).]
An application under sub-rule (2) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. [Order XXI, Rule 106(3).]