Execution Petition Can't Be Dismissed As Inexecutable Merely Because Property's Possession Is Lost To Third Party : Supreme Court

The Supreme Court has ruled that the Executing Court cannot dismiss an execution petition by treating the decree for possession as inexecutable, merely on the basis that the property has been lost to a third party/encroacher.

“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,” the bench of Justices B.V. Nagarathna and Prashant Kumar Mishra said while hearing an appeal against the decision of the Delhi High Court who had affirmed the order of the Executing Court, holding that the decree for possession of immoveable property was not executable against the judgment-debtor, i.e., the Municipal Corporation of Delhi (MCD).

It was the case of MCD that the suit land originally leased to it by the decree-holder was not under its possession, and that the same was in possession of the encroachers who should have been identified by the decree-holder.

Allowing the appeal, the top court held that it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder. Further, if any resistance is offered by any stranger/ encroacher to the decree, the same has to be adjudicated upon by the Executing Court in accordance with Rules 97 to 101 of Order XXI of the Code of Civil Procedure, 1908 (CPC). The court said that unless this procedure is adopted, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable.

Facts of the case:

The appellant, Ved Kumari, had leased out the suit land to MCD in 1973 for a period of 10 years. The lease was not renewed subsequently. Thereafter, the appellant served a notice upon MCD to hand over the vacant possession of the suit land. The appellant filed a suit for recovery of possession against MCD and a decree for possession was issued in favour of the appellant.

In the Execution Petition filed by the appellant seeking enforcement of the decree of possession, MCD informed the court that the suit land was not in its possession and the same had been encroached upon. The Executing Court, after taking into consideration the demarcation reports submitted by MCD, dismissed the Execution Petition on the ground that the encroacher(s) upon the suit land were not ‘party to the suit’ and, therefore, the decree could not be executed. Against this, the appellant filed a Revision Petition, which was dismissed by the Delhi High Court. The Review Petition filed by the appellant was also dismissed.

Supreme Court’s Analysis:

The Supreme Court observed that the Executing Court had found that MCD’s stand at the inception of the suit was that the suit land was in MCD’s possession. However, in the execution proceedings, MCD had taken a completely different stand that the suit land was under possession of encroachers.

The Executing Court had expressed doubt as to how the MCD, at the stage of execution, could take an altogether different stand. Further, it was of the view that MCD was liable to disclose as to how the possession of the suit land had passed from it to a third party. However, the MCD had failed to respond to the said query properly, the Executing Court had held.

The top court also noted that throughout the course of the execution proceedings, no resistance was offered by any purported stranger/encroacher to the decree. “In the absence of such resistance, the Executing Court had no occasion to invoke Order XXI, Rules 97 to 101, at the instance of the decree-holder or otherwise. Unless, this procedure is adopted, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable,” the bench said.

The court referred to a catena of judgments that deal with the Executing Court’s power and authority under Order XXI of CPC for resolving all disputes pertaining to the execution of decree for possession obtained by a decree-holder.

“In view of the settled legal position, as noted (supra), it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and if any resistance is offered by any stranger to the decree, the same be adjudicated upon in accordance with Rules 97 to 101 of Order XXI of the CPC. The Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable merely on the basis that the decree-holder has lost possession to a third party/encroacher. 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,” said the court.

The court accordingly allowed the appeal and set aside the order of the Executing Court and the High Court.

“The Executing Court is directed to execute the decree by effecting delivery of physical vacant possession to the appellant/decree-holder in accordance with the provisions contained in Order XXI CPC,” the court said.

Case Title: Smt. Ved Kumari (Dead Through Her Legal Representative) Dr. Vijay Agarwal vs Municipal Corporation of Delhi

Citation : 2023 LiveLaw (SC) 712

Counsel for the parties: Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Senthil Jagadeesan, AOR Mr. Adit S Pujari, Adv. Ms. Maitreya Subramaniam, Adv. Ms. Mantika Vohra, Adv. Mr. Praveen Swarup, AOR Mr. Praveen Swarup, Adv. Mr. Devesh Maurya, Adv. Ms. Payal Swarup, Adv. Mr. Chander Shekher Malhotra, Adv. Mr. Vivek Verma, Adv. Mr. Hari Sahteshwar, Adv.

Code of Civil Procedure, 1908 (CPC): Rules 97 to 101 of Order XXI

The Supreme Court has ruled that the Executing Court cannot dismiss an execution petition against the judgment-debtor by treating the decree for possession as inexecutable, merely on the basis that the decree-holder has lost possession of the immovable property to a third party/encroacher.

The top court held that it was the duty of the Executing Court to issue warrant of possession for effecting physical delivery of the suit land to the decree-holder. Further, if any resistance is offered by any stranger/ encroacher to the decree, the same has to be adjudicated upon by the Executing Court in accordance with Rules 97 to 101 of Order XXI of the Code of Civil Procedure, 1908 (CPC). The court said that unless this procedure is adopted, the Executing Court could not have closed the execution proceedings by observing that the decree is inexecutable.

Click Here To Read/Download Judgment