The Supreme Court has observed that a person who is not a party to a civil decree can resist its execution by filing an application under Order XXI Rules 97–101 of the Code of Civil Procedure (CPC), claiming an independent right, title or interest in the property.

A bench of Justice Sanjay Kumar and Justice Sanjeev Sachdeva set aside the Karnataka High Court judgment upholding the trial court's rejection of a third party's application under Order XXI CPC to resist execution of a decree, after directing him to file a separate suit to challenge the decree.

The plaintiff instituted a suit in 1987 seeking a declaration of title and possession of the suit property in Bengaluru. He claimed that the Tahsildar had allotted the site to him under a Hakkupatra in 1972.

The trial court partly decreed the suit in 1999 and directed the defendant to hand over possession of the property to the plaintiff.

During execution proceedings, the Appellant, being a third party filed an application under Order XXI Rules 97–101 CPC, resisting execution of the decree on the ground that the property had independently been allotted to him in 1972. He asserted that he and his son had constructed a house and three shops on the site and had leased them to tenants.

The Appellant had produced the original Hakkupatra in support of his claim. In contrast, the plaintiff had relied on a photocopy of the document in the original suit.

The executing court dismissed the Appellant's application in 2008, and the High Court upheld that decision urging him to file a separate suit seeking setting aside of the decree passed in a plaintiff's favour, aggrieved by which an appeal was filed by the third party before the Supreme Court.

Setting aside the concurrent findings of the courts below, the judgment authored by Justice Sanjay Kumar held that the courts below had erred in rejecting his claim and in taking the view that he needed to institute a separate civil suit to challenge the decree.

According to the Court, even the third parties are permitted to raise an objection against the execution of a decree under Order XXI of CPC, and no separate suit is necessitated for challenging the decree.

“The further finding of the learned Judge that 'the applicant could not raise such contentions before the Executing Court as it has a limited jurisdiction' reflects total non-application of mind to the scheme of Order XXI, Rules 97 to 101 CPC. An application filed thereunder is on par with a regular suit and that is the reason why an order passed on such application is appealable as a regular first appeal. The observation of the learned Judge that it was for the applicant to approach the Civil Court for a declaration to set aside the decree passed against him is in utter derogation of the mandate of Order XXI, Rule 101 CPC which explicitly bars a separate suit being filed. The finding of the learned Judge to the contrary is, therefore, wholly unsustainable in law.”, the Court observed.

As a result, the appeal was allowed, while holding the Appellant's to be the lawful owners of the suit property after they have produced the original Hakkupatra issued by the Tehsildar, which carried the greater evidentiary value than the photocopy produced by the plaintiff.

Appearance:

For Petitioner(s) : Mr. S.N. Bhat, Sr. Adv. Mr. D.P. Chaturvedi, Adv. Mr. Tarun Kumar Thakur, Adv. Mr. Abhay Choudhary M., Adv. Ms. Anuradha Mutatkar- 1833, AOR

For Respondent(s) : Mr. Shailesh Madiyal, Sr. Adv. Ms. A. Sumathi- 1585, AOR Mr. Mahesh Thakur, AOR Mr. Narveer Yadav, Adv. Mr. Siddhartha Sati, Adv. Mr. Shubhansh Thakur, Adv. Ms. Ruchi Kumari, Adv. Dr. Anthony Raju, Adv. Mr. V.N. Raghupathy- 1281, AOR