Beyond Possession: Examining Third-Party Resistance to Decree Execution and Title Disputes.


17 April 2025 Property Law >> Personal Law  

The Bombay High Court recently in Vishrut Enterprises Pvt Ltd (Formerly known as M/s. Vishrut Infotech Pvt Ltd), Through Its director Vishrut Tripathi, Mumbai v/s Prakash Ganpat Thakur & Others., addressed a petition challenging an order passed by an executing court regarding the resistance to the execution of a decree for specific performance. The case, arising from a land acquisition and subsequent plot allotment by the City and Industrial Development Corporation of Maharashtra (CIDCO), highlights the complexities that can arise when third parties assert independent rights during the execution process.

The petitioners, decree holders in a suit for specific performance (SCS No. 747 of 2007), sought to execute a decree directing the transfer of a developed plot of land in Ulwe, Navi Mumbai. This plot was to be allotted by CIDCO to Respondent Nos. 1 and 2, who claimed to be the successors-in-interest of the original landholder, Mahadeo Alias Mahadu Changu Tandel, whose agricultural land was acquired by CIDCO.

The genesis of the dispute lies in the conflicting claims of legal heirship. While Respondent Nos. 1 and 2 had entered into an agreement to sell their rights to the anticipated plot to the petitioners based on an initial heirship certificate, this certificate was subsequently revoked. A new heirship certificate was granted to Respondent Nos. 4 to 19, who then filed an application before the executing court under Section 47 of the Code of Civil Procedure (CPC), contending that the decree obtained against Respondent Nos. 1 and 2 was not executable as they lacked the rightful title to the plot.

 

 

The executing court, while acknowledging that Section 47 CPC was inapplicable as Respondent Nos. 4 to 19 were not parties to the original suit, entertained their application as a resistance to the execution under Order XXI Rule 97 of the CPC. This order prompted the decree holders to file a petition under Article 227 of the Constitution of India, challenging the executing court's decision.

The petitioners argued that Order XXI Rule 97 applies only when a decree holder faces resistance in obtaining possession of immovable property. They contended that the decree in this case was for the execution of a transfer deed, not for the delivery of possession from Respondent Nos. 4 to 19.

CIDCO, represented by Mr. Rohit Sakhadeo, supported the executing court's order, arguing that the decree itself was flawed as it contravened the Land Disposal Rules and that there was no contractual privity between CIDCO and the petitioners.

Mr. R.D. Soni, representing Respondent Nos. 4 to 19, countered that the decree was a nullity due to the fraudulent claim of heirship by Respondent Nos. 1 and 2. He relied on the Supreme Court's judgment in Brahmdeo Choudhary Vs Rishikesh Prasad Jaiswal & Anr. (1997 (3) SCC 694) to argue that any person obstructing the execution, even with an independent right, could invoke Order XXI Rule 97.

Justice N.J. Jamadar of the Bombay High Court carefully considered the rival submissions and the relevant provisions of the CPC. The court noted that Respondent Nos. 4 to 19 were not parties to the suit and claimed an independent right to the property.

The court concurred with the executing court's finding that Section 47 CPC was not applicable. The central question then became whether the resistance offered by Respondent Nos. 4 to 19 fell within the ambit of Order XXI Rule 97.

Analyzing the text of Rule 97, the court highlighted that it addresses resistance to a decree holder obtaining possession of immovable property. The court also referred to the Supreme Court's rulings in Bhanwar Lal Vs Satyanarain & Anr. (1995 (1) SCC 6) and Brahmdeo Choudhary, which established that "any person," including those claiming an independent title, could offer resistance under this rule, triggering an inquiry by the executing court. The Supreme Court in these cases emphasized that Order XXI provides a comprehensive code for resolving disputes related to the execution of possession decrees.

The court distinguished the case of Sriram Housing Fiance & Investment India Limited Vs Omesh Mishra Memorial Charitable Trust ((2022) 15 SCC 176), relied upon by the petitioners, noting that it pertained to a bonafide purchaser seeking to object, unlike the present case where the respondents claimed a fundamental flaw in the decree itself due to the alleged lack of title of the judgment debtors.

In the present matter, the High Court reasoned that the core dispute revolved around the entitlement of Respondent Nos. 1 and 2 to the plot, which was directly linked to their claim of being the legal heirs of Mahadu Tandel. The subsequent revocation of their heirship certificate and the granting of a new one to Respondent Nos. 4 to 19 underscored the fundamental challenge to the decree's executability. The court opined that the transfer of the plot by CIDCO to the petitioners was a direct consequence of the execution of the transfer deed by the judgment debtors. Therefore, the resistance based on the alleged lack of title of the judgment debtors in the first place was a valid ground for the executing court to adjudicate.

Ultimately, the Bombay High Court found no infirmity in the executing court's order to adjudicate the issue of resistance and the executability of the decree under Order XXI Rule 97 of the CPC. Consequently, the petition was dismissed, and the rule was discharged with no order as to costs. The court also rejected the petitioner's request for the continuation of the status quo order.

This case serves as a crucial reminder of the broad scope of Order XXI Rule 97 in addressing obstructions to the execution of decrees, even by third parties asserting independent rights that challenge the very foundation of the decree's validity. It underscores the executing court's duty to inquire into such resistances to ensure that the process of law is not used to perpetuate fraud or injustice.


Section 227, Constitution of India - 1950  

Constitution of India, 1950  

Section 47., Code of Civil Procedure - 1908  

Code of Civil Procedure, 1908