“If this is allowed to happen, every judgment-debtor who is in possession of the immoveable property till the decree is passed, shall hand over possession to a third party to defeat the decree-holder’s right and entitlement to enjoy the fruits of litigation and this may continue indefinitely and no decree for immovable property can be executed.”- Justice. B.V. Nagarathna and Justice. Prashant Kumar Mishra.
On 24th August, 2023 the Supreme Court, Division Bench of B.V. Nagarathna and Prashant Kumar Mishra, J. held that the Executing Court could not hold execution decree as inexecutable merely because the decree-holder lost possession of decretal land to a third party or encroacher, and that it must adjudicate resistance to delivery of possession as per Order XXI Rules 97 to 101 of Civil Procedure Code, 1908 (‘CPC’). This was laid down in the matter of Smt. Ved Kumari (the Dead Through Her Legal Representative) Dr. Vijay Agarwal vs Municipal Corporation of Delhi. The main issue in the said case was whether the possession decree could be executed against the respondent when there were alleged encroachments by third parties on the land. To which the respondent argued that the encroachments made execution impossible.
To understand the issue better, lets us look at the facts of the case:
Facts:
The appellant, who was the original plaintiff, initially leased a piece of land to the Municipal Corporation of Delhi (MCD) on January 6, 1973. The lease was for 10 years with a monthly rent of Rs 30, but it wasn’t renewed after it expired on January 6, 1983. The appellant sent a notice to MCD on December 2, 1987, requesting them to return the land by January 6, 1988. However, MCD did not comply with this demand. The appellant’s lawsuit to regain possession of the land from MCD was successful in the Sub-Judge, First Class court on March 23, 1990. In the process of executing this judgment, the appellant obtained warrants for possession on December 3, 1993. However, when they tried to enforce the warrants with the help of the police, they faced resistance and couldn’t reclaim the land. During this time, MCD submitted an application to the Executing Court to suspend the warrants for possession that had been issued earlier. The court granted a stay on the warrants until April 15, 1994, considering that demolishing a school building on the land could affect the education of around 400 students. The Executing Court later rejected MCD’s request to continue the suspension, noting that MCD had not made serious efforts to acquire the land over the past 8 years. The court also pointed out that acquisition could proceed even after the land was returned to the appellant. As MCD still didn’t return the land to the appellant, a Contempt Petition was filed in the Delhi High Court. This led to the court issuing directions that allowed the appellant to take legal action to remove the encroachers from the land. The resolution of the Contempt Petition also resulted in new warrants being issued for the possession of the land. The appellant provided demarcation reports to support their case. However, based on these reports, the Executing Court dismissed the Execution Petition, stating that the encroachers on the land were not originally involved in the lawsuit, and therefore, the judgment couldn’t be enforced against them.
The appellant then filed a Revision Petition in the High Court, but it was also rejected on April 7, 2016. The High Court ruled that the appellant hadn’t taken appropriate steps to identify the encroachers despite specific instructions. A subsequent Review Petition met the same fate. Hence, the current appeals were filed.
Examination by the Court:
The Court deliberated on the matter, noting that the Trial Court unequivocally established the Municipal Corporation of Delhi (MCD) as the lessee. As per the trial court’s decision, MCD was legally obligated to provide physical and vacant possession of the land in question, along with paying rent. Consequently, the appellant was granted the right to secure a judgment for eviction and the release of unoccupied land from MCD. The court’s judgment had reached its final conclusion. The Court emphasized that it was only on September 18, 2009, that MCD declared its lack of possession due to encroachments. The assertions made by MCD were further examined and challenged by the Executing Court. Notably, no opposition was raised against the judgment by any purported third party or encroacher.
The Court clarified that while no opposition had arisen against the judgment, the Executing Court was not empowered to invoke Order XXI, Rules 97 to 101, based on the decree-holder’s request. Consequently, the execution proceedings were concluded, with the determination that the judgment was not enforceable. In support of this, reference was made to the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, wherein it was acknowledged that “Order XXI of CPC provided a comprehensive framework for addressing all disputes related to the execution of possession decrees obtained by a decree-holder, particularly when difficulties arise during the execution process.”
Moreover, the Court examined the execution proceedings guided by Order XXI, Rules 97 to 103 of the Code of Civil Procedure (CPC) and discussed the authority of the Executing Court. This discussion drew from legal precedents such as Bhanwar Lal v. Satyanarain, Shreenath v. Rajesh, Sameer Singh v. Abdul Rab, and Jini Dhanrajgir v. Shibu Mathew.
Judicial Determination:
According to the legal standpoint, the Supreme Court asserted that the Executing Court had a legal obligation to issue a possession warrant to ensure the actual transfer of the land specified in the case. If any outsider challenged the transfer due to resistance, the matter had to be resolved in accordance with the guidelines laid out in Order XXI, Rules 97 to 101 of the Code of Civil Procedure (CPC)[it can, if permissible in law, take action against the persons who are in possession of the disputed land, or, the decree-holder may file a fresh suit against the encroachers]. The Court further clarified that the Executing Court couldn’t dismiss the execution request on the grounds that the decree-holder had lost possession to a third party or encroacher, deeming the decree unenforceable. The Court exercised caution by pointing out that if this approach were permitted, every party who owed a judgment and held possession of immovable property until the verdict could effectively transfer possession to a third party, obstructing the rightful claim of the decree-holder and rendering the litigation outcomes meaningless. This potential loophole could lead to indefinite delays in executing decrees pertaining to immovable property.
In light of these considerations, the Supreme Court overturned the decisions made by the High Court and the Executing Court. The Court instructed the Executing Court to proceed with the execution of the decree by ensuring the actual and vacant possession of the land is handed over to the appellant, as per the provisions laid down in Order XXI of the Code of Civil Procedure.