Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.

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suit properties. The Senior Advocate on the side of the respondents has also admitted that when delivery was to be taken, the petitioners were m possession and that prevented the effecting of delivery, the petitioners stated that they will set fire to themselves by pouring kerosene. On the side of the respondents, no favourable answers were obtained by addressing detailed questions to PW-1. On perusal of foe records, it is seen that the petitioners were added in all foe proceedings only nominally and no specific prayer is made in the execution petition against the petitioners. While cross-examining PW 1 on the side of the respondents, suggestion was made that he is giving false evidence only to prevent the effecting of delivery and to drag on the proceedings and the PW-1 has denied the same. In RW 1’s evidence, it is seen that the High Court has removed the names of Rajamani and Ethirajulu and as Rajamani and Ethirajulu are nominally added, it will not affect their rights. The judgement in O.S.No.514/83 win not bind the petitioners. In E.P. also, no Bhatta was paid for sending notice to the petitioners. In E.P.No.237/04 and E.P.No.214/05, relief is claimed in column 9 only against Ramanujam and Jagadeesan. On the side of the respondents, it is proved that the possession of the suit property is wit.li Ramanujam and Jagadeesan. It is not stated in their reply that the possession of the suit property is with Ramanujam and Jagadeesan. No independent witness was examined to show that Rajamani and Ethirajulu are not in possession and that Ramanujam and Jagadeesan are in possession of the suit property. In both the execution petitions, no prayer is made against the petitioners for delivery of possession. The petitioners have proved that they are in possession. The respondents have not produced the records relating to the proceedings in prior litigations. It is not proved that the possession of the property is with Ramanujam and Jagadeesan. As the respondents have not asked for any prayer in the execution petition against the petitioners herein to prove that the petitioners are in possession, as no acceptable reason is stated for not making any

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prayer against foe petitioners, which affects the case of the respondents, when the petitioners have proved their possessory rights over the suit properties and also as the respondents can take possession only after taking legal steps/ proceedings and also as the objections raised by the petitioners are acceptable, this court holds that in the interest of justice, the petition is to be allowed.”

57. Thus, according to the Executing Court, although the respondent nos. 1 and 2 herein were impleaded as parties in the execution petition filed by the appellants herein yet no notice was sent to them as there was no prayer made against them. Secondly, according to the Executing Court the respondent nos. 1 and 2 have been able to establish that they are in possession of the suit properties. In such circumstances, the objections raised by the respondent Nos. 1 and 2 herein under Section 47 of the CPC were upheld.

58. The High Court while affirming the order passed by the Executing Court proceeded altogether on a different footing. The High Court held as under: “25. Even after knowing the possession of the respondents 3 and 4 / defendants, in the earlier occasion, after so many years, the decree holders, purposely did not ask the Court to send notice to respondents 3 and 4 / defendants. In fact the decree has also been passed against the respondents 3 and 4 / defendants, in which the respondents 3 and 4 /defendants, are directed to hand over possession to the decree holders. Only taking into consideration of the same, the learned First Additional Subordinate Judge, Salem, had allowed the REA No. 163 of 2011 vi de order dated 12.08.2011, by holding that since, no notice is served to respondents 3 and 4/ defendants, the Court cannot pass any order directing the respondents 3 and 4/ defendants, to deliver possession and thereby their right of possession, is no way effected. Therefore, this Court is of the considered view that the said proposition taken by the court below do not have any material irregularity.

26. However, it is the duty of the Court below to dismiss the REP No.237 of 2004, after allowing the application filed in REA No. 163 of 2011 (47 CPC). But the learned First

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Additional Subordinate Judge, Salem, without following the consequential procedure, allowed the revision petitioners/ decree holders to file applications for amending the execution petition. Since the right of the respondents 3 and 4/ defendants are determined in REA No. 163 of 2011, the question of subsequent amendment in the same EP (REP No.237 of 2004) in Column No. 10 virtually does not arise on the date. So far as respondents 3 and 4 are concerned, no execution petition was pending. Under the said circumstances, amendment petitions are not maintainable. Therefore, this Court is of the firm view that the amendment applications filed in REA Nos. 14 of 2012 and 145 of 2013, are not maintainable in liminie. 27.The decree holders should have taken steps to amend the execution petition atleast after seeing the defence set up by the respondents 3 and 4/defendants in the REA No. 163 of 2011. But they have not taken any steps to amend the execution petition till the disposal of application filed under Section 47 CPC. More than that, the decree holder / revision petitioners, after knowing the result of REA No. 163 of 2011 in the year 2011, till 2015 they have not preferred any appeal against the order passed in the petition filed under Section 47 CPC. The reason for not filing the appeal or revision, immediately, is not explained on the side of the revision petitioners/decree holders. Though the procedure is meant to advance cause of justice, it is for the litigants to watch the proceedings, then and there, without any delay, with care and vigil.

28. Therefore, in the light, of the above discussions, this Court is of the opinion that the impugned order passed in the petition filed under Section 47 CPC is not having any material irregularity and thereby, the order dated 12.08.2011 made in REA No.163 of 2011 in REP No.237 of 2004 in OS No.514 of 1983, is sustained and CRP No.4311 of 2011, is dismissed.

29. Further, as already observed, after allowing the application filed under Section 47 CPC, the Execution Petition has to be closed. But for the reasons best known,

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the execution petition filed by the revision petitioners/ decree holders was kept alive and thereafter, the revision petitioners/ decree holders took the applications for amendment. In fact, the same is not maintainable. Therefore, the orders dated 24.04.2015 made in REA Nos.14 of 2012 and 145 of 2013 in REP No.237 of 2004 in OS No.514 of 1983, are also sustained and CRP Nos.2150 & 2151 of 2015, are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.”

59. It appears that the Courts below proceeded absolutely on a wrong footing. What the courts below should have considered is the simple fact whether the obstruction at the end of the respondent nos. 1 and 2 of the execution of the decree of specific performance and possession of the suit property could be said to be bona fide and genuine. In other words, the consideration at the end of both the courts should have been whether the respondent nos. 1 and 2 herein being nephews of the original venders are acting in collusion with each other only with a view to frustrate and defeat the decree.

60. We are of the view that the Courts below failed to consider the following: a. The respondent Nos. 1 and 2 respectively are nephews of the vendors and claim to have come into possession of the suit property in the year 1983 when the suit was first instituted by the appellants before the ASJ. They were impleaded in the original suit as the defendant Nos. 3 and 4 respectively. b. The decree in favour of the appellants granting specific performance with possession was affirmed by the High Court on 19.03.2004 and the SLP against the order of the High Court stood dismissed on 20.01.2006. The respondent Nos. 1 and 2 respectively chose not to contest the original suit before the ASJ. They did not appear even before the High Court and this Court in the appeals filed by the vendors (judgment debtors). c. The respondent Nos. 1 and 2 were also impleaded in the execution petition bearing R.E.P. No. 237 of 2004 and the order of the High Court dated 21.02.2006 indicates that they had appeared through their advocate and were aware about the said execution petition.

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d. The Executing Court executed the sale deed on 17.08.2007 and ordered for delivery of possession of the suit property to the appellants. When such order was sought to be effected by the appellants along with the Village Administrative Officer, the respondent no. 1 obstructed the delivery of possession. e. Thereafter, the respondent Nos. 1 and 2 respectively filed an execution application R.E.A. No. 163 of 2011 on 12.03.2008 alleging fraud on the part of the appellants saying that they were not aware about the execution proceedings. At this stage, the respondent no. 2 brought onto the record for the first time that he along with the respondent no. 1 were cultivating the land constituting the suit property. f. The respondent Nos. 1 and 2 respectively, after seven months i.e. on 18.10.2008 filed a petition before the revenue authorities for inclusion of their names in the cultivation account of the suit property and prayed that the same be done retrospectively from the year 1974. Though, the revenue authorities only allowed for inclusion of their names from 2008 onwards yet they were granted certificate that they were in possession of the suit property from 1974 onwards. Such certificate was provided to them on the basis of the “no objection” given by the vendors (judgment debtors) as they were considered to be title holders of the said property. From the facts on record, it can be discerned that the revenue authorities were not made aware of the sale deed executed in favour of the appellants herein and that the title of the suit property stood transferred to them.

61. It further appears that the respondent Nos. 1 and 2 respectively, claiming to be cultivating tenants, had contended before the courts below that the civil court lacked jurisdiction to adjudicate on matters pertaining to possession of the suit property and eviction therefrom. The respondents submitted that the decree passed in the original suit was a nullity and therefore, the validity of the decree could be challenged even during the execution proceedings.

62. A harmonious reading of Section 47 with Order XXI Rule 101 implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can

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be determined by an executing court under Section 47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670, wherein it has been held that while determining a question under Section 47, an executing court cannot go behind the decree and question the correctness of the same.

63. What flows from the position of law, as afore stated, is that the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has held that the benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation of fruits of the decree. The relevant portion of the judgment is reproduced below: “24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.

25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the

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litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.

26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgment- debtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.

27. This is antithesis to the scheme of the Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order 1 and Order 2 which relate to parties to suits and frame of suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go.” (Emphasis supplied)

64. In the present case, the appellants have pleaded in their plaint that the respondent Nos. 1 and 2 respectively were impleaded therein as defendants as they were in possession of the suit property. However, the respondent Nos. 1 and 2 chose not to contest the suit despite being aware of the prayer of the appellant for delivery of possession of the suit properties. They could have filed a joint written statement stating that they are cultivating tenants at the stage of the original suit itself, but rather raised the said issue in the form of objections at the stage of execution.

65. Furthermore, the respondent Nos. 1 and 2 failed to produce any documentary evidence as regards their claim of being cultivating tenants, even at the stage of their Section 47 application. Instead, they filed for registration of their names in the cultivation account of

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the suit property only in 2008 and prayed for retrospective inclusion of their names from 1974. While the Revenue authorities declined the retrospective inclusion of the respondents’ names as cultivating tenants from 1974, it allowed for their inclusion in the cultivation account of the suit property starting from 2008 onwards. The revenue authorities also ordered for grant of certificate to the respondent Nos. 1 and 2 certifying that they were in possession of the suit property from 1974 on the strength of the “no objection” provided by the vendors.

66. The respondent Nos. 1 and 2 are asserting their independent right to remain in possession of the suit land and consequent protection under the Tamil Nadu Cultivating Tenants’ Protection Act, 1955, owing to their status of being cultivating tenants granted in 2008 by the Revenue authorities.

67. It is worthwhile to revisit the facts that the High Court and this Court had affirmed the decree of specific performance with possession in favour of the appellants in the year 2004 and 2006 respectively. Subsequently, the sale deed was executed by the Executing Court on 17.08.2007 thereby transferring title of the suit property to the appellants. Despite such confirmation of the decree and transfer of title in favour of the appellants, it is incomprehensible why a notice was sent to the vendors by the revenue authorities in 2008. Further, the vendors gave “no objection” to the grant of certificate of possession to the respondent Nos. 1 and 2 from 1974 despite not having any authority to do so in light of the sale deed dated 17.08.2007.

68. In our considered view, the aforesaid by no stretch of imagination can be construed to be a legal right of possession existing independently from the title of the vendors which has now stood transferred to the appellants. It is nothing but a case of apparent collusion between the vendors and the respondent Nos. 1 and 2 to deprive the appellants from availing the fruits of the decree in their favour.

69. Even otherwise, the respondent Nos. 1 and 2 cannot claim protection of the special legislation of 1955 for the period during which they were not registered as tenants cultivating the suit properties. In our view, the certificate that they are in possession of the suit properties since 1974 does not come to their aid. We say so, because the said certificate does not establish any independent right of possession in favour of the respondent Nos. 1 and 2. Further, the certificate itself appears to have been obtained in collusion with the vendors who

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at the time of giving “no objection” had ceased to be the owners of the suit property.

70. In such circumstances referred to above, we find it extremely difficult to accept that the respondent Nos. 1 and 2 are bona fide cultivating tenants of the suit property and thus, the determination of the question of them being in possession of the same must necessarily go against them and in favour of the appellants. Therefore, there is no question of deciding the validity of the decree on the ground of being a nullity due to lack of jurisdiction of the civil court to evict cultivating tenants.

71. In such circumstances referred to above, we have reached the conclusion that the High Court committed an egregious error in passing the impugned order. We must now ensure that the appellants are able to reap the fruits of the decree. We are also of the view that the rejection by the High Court of the amendments to the execution petition filed by the appellants, was erroneous and deserves to be set aside.

72. Before we close this matter, we firmly believe that we should say something as regards the long and inordinate delay at the end of the Executing Courts across the country in deciding execution petitions.

73. It is worthwhile to revisit the observations in Rahul S. Shah (supra) wherein this Court has provided guidelines and directions for conduct of execution proceedings. The relevant portion of the said judgment is reproduced below: “42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions: 42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order 10 in relation to third-party interest and further exercise the power under Order 11 Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third-party interest in such properties. 42.2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the court, the court may appoint Commissioner to assess the accurate description and status of the property.

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42.3. After examination of parties under Order 10 or production of documents under Order 11 or receipt of Commission report, the court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 42.4. Under Order 40 Rule 1 CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter. 42.5. The court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. 42.6. In a money suit, the court must invariably resort to Order 21 Rule 11, ensuring immediate execution of decree for payment of money on oral application. 42.7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree. 42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant. 42.9. The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by

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resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 42.10. The court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to sub-rule (2) of Rule 98 of Order 21 as well as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section 60 CPC the term “… in name of the judgment-debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property. 42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. 42.13. The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the police station concerned to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the court, the same must be dealt with stringently in accordance with law. 42.14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the executing courts.” (Emphasis supplied)

74. The mandatory direction contained in Para 42.12 of Rahul S. Shah (supra) requiring the execution proceedings to be completed within six months from the date of filing, has been reiterated by this Court in its order in Bhoj Raj Garg v. Goyal Education and Welfare Society & Ors., Special Leave Petition (C) Nos. 19654 of 2022.

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75. In view of the aforesaid, we direct all the High Courts across the country to call for the necessary information from their respective district judiciary as regards pendency of the execution petitions. Once the data is collected by each of the High Courts, the High Courts shall thereafter proceed to issue an administrative order or circular, directing their respective district judiciary to ensure that the execution petitions pending in various courts shall be decided and disposed of within a period of six months without fail otherwise the concerned presiding officer would be answerable to the High Court on its administrative side. Once the entire data along with the figures of pendency and disposal thereafter, is collected by all the High Courts, the same shall be forwarded to the Registry of this Court with individual reports.

76. Registry is directed to forward one copy each of this judgment to all the High Courts at the earliest.

77. The Registry shall notify this matter once again after seven months only for the purpose of reporting compliance of the directions issued by us referred to above.

F. CONCLUSION

78. In the result, the appeals succeed and are hereby allowed. The impugned judgment passed by the High Court is hereby set aside. The order passed by the Executing Court is also hereby set aside.

79. The Executing Court shall now proceed to ensure that vacant and peaceful possession of the suit property is handed over to the appellants in their capacity as decree holders and if necessary, with the aid of police. This exercise shall be completed within a period of two months from today without fail.

80. Pending applications, if any, shall stand disposed of.

Result of the case: Appeals allowed.